Buyer Discretion. During the period from the Execution Date to the Closing Date, if Seller becomes aware of (i) any fact or condition that existed on the date hereof that causes or constitutes a breach of any of Seller’s representations and warranties as of the Execution Date or (ii) any event reasonably expected to have a material and adverse effect on the Acquired Assets, the Licensed Operations, the Assumed Liabilities or the Hospital Campus Real Property, Seller shall promptly notify Buyer in writing of such fact or condition and deliver to Buyer a proposed Modification to any applicable Exhibit or Schedule, and the addition of such Modification to the Final Schedule shall be in the sole discretion of Buyer.
Buyer Discretion. Notwithstanding any other provision of this Agreement, including Section 11.01(g), Buyer retains the right, in its sole discretion, to refuse to enter into any agreement, understanding or arrangement that might or would lead to Qualifying Revenue if it determines in its good faith business judgment that it is not in Buyer's interest to do so, and in any event to determine the terms of any such understanding or arrangement in its sole discretion.
Buyer Discretion. Seller understands and acknowledges that control of all business decisions regarding the Company and its Subsidiaries (including, without limitation, sales and marketing, capital expenditures, product pricing, product development, product deployment, employee hiring and retention, subcontracting authority, facilities management and acquisitions or disposition of assets (and the timing thereof)) from and after the Closing Date shall be the right of Buyer, and that Buyer may operate its business and the business of its Subsidiaries (including the Company and its Subsidiaries) in the manner it deems appropriate, in each case, subject to Section 2.5(f). Notwithstanding the foregoing, Buyer shall not take any action in bad faith with the intent of depriving Seller of the benefit of the Milestone Payment and/or Seller Liquidity Event Proceeds, if any, provided for herein.
Buyer Discretion. Seller understands and acknowledges that control of all business decisions regarding the Company Group (including, without limitation, sales and marketing, capital expenditures, product pricing, product development, product deployment, employee hiring and retention, subcontracting authority, facilities management and acquisitions or dispositions of assets (and the timing thereof)), from and after the Closing Date shall be the ultimate right of the board of directors of the General Partner, and that Buyer may operate its business and the business of its Subsidiaries (including the Company Group) in the manner it deems appropriate. Notwithstanding the foregoing, Buyer shall not take any action in bad faith with the intent of depriving Seller of the benefit of the Supplemental Purchase Price provided for herein.
Buyer Discretion. The parties acknowledge that, without limiting the provisions of Section 5.11, (i) Buyer and the Surviving Corporation shall have sole discretion over all matters relating to the Company Product and the Company’s business after the Effective Time, including, but not limited to, any research, development, manufacturing, clinical trial design, site selection, regulatory, quality standards, legal, Intellectual Property Rights, marketing, and sales decisions relating to the Company’s business and Company Product, including what efforts to take, if any, with respect to any of such matters and (ii) the Fully Diluted Common Holders’ right to receive the Contingent Payments represents a significant portion of the Fully Diluted Common Holders’ consideration for the transactions contemplated by this Agreement, and is expected to be a significant factor in the Fully Diluted Common Holders’ willingness to adopt this Agreement and approve the Merger. The Company acknowledges that, without limiting the provisions of Section 5.11, after the Closing, Buyer will operate the Surviving Corporation, and that neither Buyer nor the Surviving Corporation owes any fiduciary duty or express or implied duty to any Fully Diluted Common Holder. By their adoption of this Agreement, acceptance of any Merger Consideration under this Agreement, delivery of a Letter of Transmittal or delivery of an Option Cancellation Agreement or RSU Cancellation Agreement, the Fully Diluted Common Holders expressly waive the right to pursue any claim against Buyer, the Surviving Corporation, any of their Affiliates or any other Person under any implied covenant or implied obligation with respect to such parties’ efforts to achieve or pursue any of the milestones set forth in Section 2.9(b), and agree that the express provisions of this Agreement (including this Section 2.9 and Section 2.10 and Section 5.11), the Letters of Transmittal, the Option Cancellation Agreement or RSU Cancellation Agreement solely govern their contractual relationship with Buyer, the Surviving Corporation, and each of their Affiliates with respect to the Contingent Payments.
Buyer Discretion. 35 6.9.9 Closing .....................................................................................................35
Buyer Discretion. 54 ARTICLE XII MISCELLANEOUS.................................................................... 55 Section 12.01. Headings................................................................ 55 Section 12.02. Notices................................................................. 55 Section 12.03. Assignment.............................................................. 56 Section 12.04. Governing Law; Jurisdiction; Waiver of Jury Trial....................... 56 Section 12.05. Severability............................................................ 57 Section 12.06. Entire Agreement; Amendment; No Waiver.................................. 57 Section 12.07. Expenses................................................................ 57 Section 12.08. Obligations Joint and Several........................................... 57 Section 12.09. Schedules and Exhibits.................................................. 57 Section 12.10. No Third Party Beneficiaries............................................ 57 Section 12.11. Counterparts............................................................ 58 TABLE OF CONTENTS (continued) PAGE Section 12.12. Stockholders' Representative............................................ 58 Annex A Shares and Percentage Ownership Annex B Key Employees Exhibit A Form of Key Employment Agreement Schedule 1.01-1 Book Value Calculation Methodology Schedule 1.01-2 Excluded Receivables Schedule 1.01-3 Initial Balance Sheet Schedule 4.02 Jurisdictions of Selling Shareholders Schedule 4.04 Conflicts Schedule 4.05 Subsidiaries Schedule 4.08 Undisclosed Liabilities Schedule 4.10 Material Adverse Change Schedule 4.11 Permits; Compliance Schedule 4.12 Taxes Schedule 4.12(d) Tax Jurisdictions Schedule 4.12(e) Tax Returns Schedule 4.12(i) Tax Sharing Agreement Schedule 4.12(j) NOLs Schedule 4.13 Litigation Schedule 4.15 Derivative Instruments Schedule 4.17 Regulatory Matters Schedule 4.19 Material Contracts; Defaults Schedule 4.20(a) Benefit Plans Schedule 4.20(g) ERISA Schedule 4.20(f) Acceleration of Benefit Plans Schedule 4.21(a) Intellectual Property Schedule 4.21(b) Domain Names Schedule 4.23(a) Broker-Dealer Schedule 4.23(b) Registrations Schedule 4.23(d) Regulatory Agreements Schedule 4.24 Insurance Schedule 4.25 Bank Accounts Schedule 4.29 Computer Systems Schedule 4.30(a) Affiliate Transactions Schedule 4.30(b) Arm's-Length Transactions Schedule 4.30(c) Settlements Schedule 4.31 Guaranties Schedule 4.32 Real Property Schedule 5.03 Conflicts Sch...
