Common use of Operations of the Business Clause in Contracts

Operations of the Business. Nothing contained in this Section 2.13 shall restrict Purchaser’s right to manage and control its businesses, assets, operations or activities in any respect, including that of its Subsidiaries, including the hiring or termination of employees, the incurrence of expenses and requiring compliance with Purchaser’s and its Affiliates’ internal controls, corporate governance policies and procedures, legal and regulatory compliance standards and consumer data guidelines and privacy rules and regulations. Seller Parent acknowledges that (i) upon the closing of the transactions contemplated by the Agreement and except as expressly provided to the contrary in this Agreement, Purchaser has the right to operate and use the Purchased Assets, the Assumed Liabilities, the Shares and its other businesses in any way that Purchaser deems appropriate in its sole discretion, (ii) neither Purchaser nor its Subsidiaries have any obligation to operate their businesses, assets, operations or activities (including the Purchased Assets, the Assumed Liabilities and the Shares) in order to achieve the Earnout Cap, maximize the Adjusted EBITDA during the Earnout Period, or to increase the Earnout Percentage, (iii) the Earnout Target is speculative and is subject to numerous factors outside the control of Purchaser and its Subsidiaries, (iv) there is no assurance that Seller Parent will receive any earnout amount pursuant to this Section 2.13 and Purchaser has not promised nor projected any earnout amount will be achieved, and (v) the Parties solely intend the express provisions of this Agreement to govern their contractual relationship with respect to any earnout amount. Notwithstanding the foregoing, Purchaser and its Subsidiaries shall not act in bad faith, or otherwise intentionally take actions, in each case, with the purpose of reducing Adjusted EBITDA, with the purpose of delaying, impeding, avoiding or preventing payment of any earnout amount to Seller Parent pursuant to this Agreement, or enter into, including by way of amendment or modification, extension or renewal of, any document, agreement or instrument the purpose of which is to restrict or prohibit the payment of any earnout amount due under this Agreement.

Operations of the Business. Nothing contained Both Buyer and each of the Seller Parties acknowledge that achievement of targeted results of operations of the Business will be required in this Section 2.13 shall restrict Purchaser’s right order for all or a portion of the Earn-Out Consideration to manage be payable. The Seller Parties understand and control its businesses, assets, operations or activities in any respect, including acknowledge that of its Subsidiaries, including the hiring or termination of employees, the incurrence of expenses and requiring compliance with PurchaserBuyer’s and its Affiliates’ internal controlsboards of directors and officers owe their fiduciary duties to their stockholders. The Seller Parties further understand and acknowledge that Buyer is a publicly traded corporation which conducts its foodservice business primarily through direct and indirect subsidiaries. The Seller Parties understand and acknowledge that the boards of directors and officers of Buyer and its Affiliates, corporate governance policies and proceduresin their exercise of their fiduciary duties to their stockholders, legal and regulatory compliance standards and consumer data guidelines and privacy rules and regulations. Seller Parent acknowledges that (i) upon the closing may determine to undertake a range of the transactions contemplated by the Agreement and except as expressly provided to the contrary in actions, some of which could adversely affect amounts payable under this Agreement, Purchaser has to reflect these fiduciary duties and to further accomplish the right to operate and use business objectives of Buyer as the Purchased Assetsowner of a group of subsidiaries engaged in the foodservice business. Toward that end, the Assumed Liabilitiesboards of directors and officers of Buyer or any of Buyer’s Affiliates shall have the ability to, among other things, make changes in the Shares management of the Business; to make decisions regarding capital expenditures involving the Business; to make decisions as to whether or not customers would be best served by the entity which owns the Business or another subsidiary of Buyer; and to make other decisions that could affect the results of operations of the Business but which otherwise are in the best interests of Buyer and its other businesses public stockholders; provided, that any such decisions shall be made in any way that Purchaser deems appropriate in its sole discretion, (ii) neither Purchaser nor its Subsidiaries have any obligation to operate their businesses, assets, operations or activities (including good faith and may not be made with the Purchased Assets, the Assumed Liabilities and the Shares) in order to achieve the Earnout Cap, maximize primary purpose of adversely affecting the Adjusted EBITDA during of the Earnout Period, or to increase Business so that the Earnout Percentage, (iii) the Earnout Target is speculative and is subject to numerous factors outside the control amount of Purchaser Buyer and its Subsidiaries, (iv) there is no assurance that Seller Parent will receive any earnout amount pursuant to this Section 2.13 and Purchaser has not promised nor projected any earnout amount will be achieved, and (v) the Parties solely intend the express provisions of this Agreement to govern their contractual relationship with respect to any earnout amount. Notwithstanding the foregoing, Purchaser and its Subsidiaries shall not act in bad faith, or otherwise intentionally take actions, in each case, with the purpose of reducing Adjusted EBITDA, with the purpose of delaying, impeding, avoiding or preventing payment of any earnout amount Affiliates’ sales to Seller Parent Customers, the Adjusted EBITDA thereon or the Earn-Out Consideration payable pursuant to this Agreement, if any, is materially reduced. If the Buyer or enter intoBuyer’s Affiliates make material changes in the management of the Business, including capital expenditures involving the Business, or as to whether or not certain customers would be best served by way the entity which owns the Business or another subsidiary of amendment Buyer, which decisions either adversely affect Adjusted EBITDA or modificationpositively affect Adjusted EBITDA, extension then the Minimum and Maximum EBITDA Targets shall be decreased or renewal ofincreased, any documentas appropriate, agreement or instrument in Buyer’s reasonable good faith discretion, in an amount equal to the purpose reasonably determinable impact of which is such material management changes on future Adjusted EBITDA figures. Buyer shall include in its calculation of Adjusted EBITDA provided to restrict or prohibit the payment Seller a description of any earnout amount due under deliberate change to the management of the Business that materially reduces or increases Adjusted EBITDA. During the term of this Agreement, Buyer shall maintain a financial record-keeping system that enables it to separately account for all items of income and expense of the Business.