Common use of Post-Closing Operation of the Business Clause in Contracts

Post-Closing Operation of the Business. (i) Subject to subsections (ii) and (iii) below, subsequent to the Closing, Buyer shall have sole discretion with regard to all matters relating to the operation of the Purchased Assets and the Business, including, but not limited to, the capitalization, funding, structuring, sale, disposition or dissolution of the Business. Buyer shall have no obligation to operate the Business in order to achieve any Earn-Out Payment or to maximize the amount of any Earn-Out Payment. (ii) During the Earn-Out Period, Buyer shall not cause or allow the sale or transfer of Buyer or of all or substantially all of the assets of the Business (whether in a single transaction or a series of transactions, through merger or acquisition, or through an asset, equity, or any other type of transfer), or liquidate or dissolve the Buyer or the Business except that this Section 2.09(g)(ii) shall not apply under any of the following circumstances: (A) such transaction(s) are with an Affiliate of Buyer; or (B) Seller has not earned an Earn-Out Payment for the Earn-Out Period occurring immediately prior to the date of such transaction(s); or (C) such transaction(s) are part of a larger transaction in which all or substantially all of the assets of Buyer’s parent company have been transferred or in which a change in control of Buyer’s parent company has occurred; or (D) such transaction(s) receive the prior written consent of Seller, which consent shall not be unreasonably withheld, delayed or conditioned. A buyer of the Business during the Earn-Out Period shall assume the Buyer’s remaining obligations to the Seller with respect to the Earn-Out Payment except as otherwise agreed in writing by the Seller. (iii) The Buyer covenants that, during the Earn-Out Period, it shall maintain the ability to account separately for the results of operations of the Business in a manner that will permit Buyer to determine the EBITDA of the Business, regardless of whether the Buyer elects to cause the Business or any of the Purchased Assets to be transferred to another entity except that this covenant shall not apply in connection with a transaction described in Section 2.09(g)(ii)(D), and the Buyer covenants that it shall not take any actions for the purpose and with the intent of avoiding, minimizing or reducing any of the Earn-Out Payments hereunder. The Buyer covenants that, during the Earn-Out Period, the Buyer shall, within 30 days of the end of each calendar month, provide Seller with unaudited financial statements of the Business which shall permit the Seller to calculate the EBITDA of the Business for such calendar month.

Post-Closing Operation of the Business. (i) Subject to subsections (ii) and (iii) belowthe terms of this Agreement, subsequent to the Closing, Buyer shall have sole discretion with regard to all matters relating to the operation of the Purchased Assets and the BusinessCompany; provided, including, but not limited to, the capitalization, funding, structuring, sale, disposition or dissolution of the Business. that Buyer shall have no obligation to operate the Business in order to achieve any Earn-Out Payment not, directly or to maximize the amount of any Earn-Out Payment. (ii) During the Earn-Out Periodindirectly, Buyer shall not cause or allow the sale or transfer of Buyer or of all or substantially all of the assets of the Business (whether in a single transaction or a series of transactions, through merger or acquisition, or through an asset, equity, or any other type of transfer), or liquidate or dissolve the Buyer or the Business except that this Section 2.09(g)(ii) shall not apply under any of the following circumstances: (A) such transaction(s) are with an Affiliate of Buyer; or (B) Seller has not earned an Earn-Out Payment for the Earn-Out Period occurring immediately prior to the date of such transaction(s); or (C) such transaction(s) are part of a larger transaction in which all or substantially all of the assets of Buyer’s parent company have been transferred or in which a change in control of Buyer’s parent company has occurred; or (D) such transaction(s) receive the prior written consent of Seller, which consent shall not be unreasonably withheld, delayed or conditioned. A buyer of the Business during the Earn-Out Period shall assume the Buyer’s remaining obligations to the Seller with respect to the Earn-Out Payment except as otherwise agreed in writing by the Seller. (iii) The Buyer covenants that, during the Earn-Out Period, it shall maintain the ability to account separately for the results of operations of the Business in a manner that will permit Buyer to determine the EBITDA of the Business, regardless of whether the Buyer elects to cause the Business or any of the Purchased Assets to be transferred to another entity except that this covenant shall not apply in connection with a transaction described in Section 2.09(g)(ii)(D), and the Buyer covenants that it shall not take any actions in bad faith, for the purpose and with of, or that could be reasonably foreseen to have the intent effect of avoiding, minimizing avoiding or reducing any of the Earn-Out out Payments hereunder. The Buyer covenants thathereunder and shall continue to operate the business in the ordinary course, during consistent in nature, scope and magnitude with its past practices. (ii) Without limiting the foregoing Section 1.04(e)(i), Buyer: (A) shall not, directly or indirectly, take any action or omit to take any action with the intent of distorting or manipulating the financial performance of Company or the Adjusted EBITDA or to unduly influence the achievement or failure to achieve any particular Adjusted EBITDA and corresponding Earn-Out Periodout Payments; (B) shall not, the Buyer shalldirectly or indirectly, within 30 days discontinue or cease to offer or market any product or service offered by Company as of the end Closing which contributes to the revenue of each calendar monthCompany unless such product or service results in a loss or negative margin; (C) unless otherwise agreed to by Seller, provide Seller with unaudited financial statements shall cause Company to (I) retain and continue to employ or engage, as applicable, all Persons who are employees and independent contracts of Company as of the Business which Closing (each, a “Retained Employee” or “Retained Contractor”, as applicable); (II) provide each Retained Employee with a substantially similar or better position, benefit plan and rate of pay as in effect at the Closing; and (III) retain each Retained Contractor at the same terms and conditions in effect at the Closing; provided, however, that nothing in this Section 1.04(e) shall permit prevent Buyer or Company from (x) terminating a Retained Employee due to his or her material violation of applicable company policy or material misconduct or (y) terminating a Retained Contractor due to his or her material misconduct or a material breach of his or her applicable independent contractor agreement; (D) shall maintain a financial reporting system that separately accounts for the Seller to calculate Adjusted EBITDA for each Calculation Period in accordance with the EBITDA Principles; and (E) shall direct and contribute the operations, systems, and other assets and personnel primarily relating to the Business, whether now owned or hereafter acquired by Buyer or its Affiliates, to Company to reasonably support the maintenance and growth of the Business for such calendar monthCompany’s business and operations.