Parent Discretion. Notwithstanding anything to the contrary contained herein or in any Ancillary Agreement, except as set forth in the Information Statement with respect to prohibited modifications following any approval of the Spin-Off by Parent’s shareholders, Parent may, at any time and from time to time until the consummation of the Distribution, modify or change the terms of the Spin-Off, including by accelerating or delaying the timing of the consummation of all or part of the Distribution. In addition, nothing in this Agreement or in any Ancillary Agreement or otherwise, including any approval of the Spin-Off by Parent’s shareholders, shall in any way limit Parent’s right to terminate this Agreement and abandon the Spin-Off at any time prior to its consummation or alter the consequences of any such termination from those specified herein.
Parent Discretion. Notwithstanding any other provision of this Agreement, following the Effective Time, the Parent shall use commercially reasonable efforts to develop and commercialize the Company Technology. Notwithstanding the foregoing, the Parent shall have no obligation to continue to develop or commercialize the Company Technology if it determines in its commercially reasonable discretion that doing so is no longer advisable or in the best interest of the Parent and its stockholders. Further, the Parent retains the right, in commercially reasonable discretion: (x) to generally operate the Surviving Corporation and the businesses conducted thereby in any manner that the Parent deems appropriate in its commercially reasonable discretion; and (y) to reorganize or restructure the business, financial and/or legal structure of the Surviving Corporation in any manner, at any time and from time to time, whether by creation, dissolution or combination of divisions, transfer of assets, merger, consolidation, transfer or issuance of securities or otherwise or to cease operations of the Surviving Corporation, in each case regardless of any effect such actions may or may not have upon the Milestone Payments, if it determines in its good faith business judgment that it is in the Parent’s and/or the Surviving Corporation’s interest to do so. The Company and each of the Company Stockholders hereby expressly acknowledges and agrees that (A) the payment of the Milestone Consideration hereunder is expressly dependent upon the performance of the Surviving Corporation, and not upon the performance of the Parent or any business conducted thereby other than through the Surviving Corporation, (B) there is no requirement, guaranty or other assurance of any kind that any Milestone Consideration will be payable hereunder (regardless of any projections, models, forecasts or any other financial data generated by, or provided to, the Company, any Company Stockholder, or the Parent) and (C) the right to receive any Milestone Consideration is a contract right only and shall be governed solely and exclusively by the express provisions of this Section 2.7(a) and Schedule 2.7(a)(iii), notwithstanding anything to the contrary contained herein or in any other Contract, written or oral, between the Parent, the Company, the Company Stockholders or any of their Affiliates.
Parent Discretion. Livent hereby agrees that Parent shall be entitled to determine in its sole discretion whether to (x) file or to cause to be filed any claim for a refund or adjustment of Taxes with respect to any Joint Tax Return in order to claim in any Pre-Distribution Period any Livent Carried Item, (y) make or cause to be made any available elections to waive the right to claim in any Pre-Distribution Period, with respect to any Combined Income Tax Return, any Livent Carried Item, and (z) make or cause to be made any affirmative election to claim in any Pre-Distribution Period any Livent Carried Item. Subject to Section 6(b), Livent shall submit a written request to Parent in order to seek Parent’s consent with respect to any of the actions described in this Section 6(a).
Parent Discretion. Parent (i) shall have sole discretion over all matters relating to the Products after the Closing, including all matters relating to the development, manufacturing, commercialization or Regulatory Approval of the Products after the Closing (including in respect of the decision to pursue any of the foregoing, and, if applicable, the timing thereof) and to the allocation of personnel and other resources reasonably available to Parent and its Subsidiaries, (ii) shall not have any obligation to operate the Company (or any other component of Parent’s business) in a manner designed to achieve the Earnout Payment standards set forth herein, (iii) shall not be obligated to operate the Company in a manner consistent with the manner in which the Company Stockholders operated the Company prior to the Closing Date, (iv) shall be under no obligation to continue to serve any customer after the Closing Date, and (v) owes no fiduciary duty or express or implied duty to the Company Stockholders, including no duty of good faith and fair dealing. The parties acknowledge that the Earnout Payments are speculative and subject to numerous factors outside the control of Parent. Notwithstanding the foregoing, until the Earnout Payment Date, (i) Parent and the Company shall not operate the business of the Company in a manner intended to circumvent or reduce the Earnout Payment, (ii) neither the Company nor Parent shall enter into any agreements, including loan agreements, which prohibit or restrict payment of the Earnout Payment, and (iii) Parent shall not take any action in managing the operations of the Company that does not have a reasonable business purpose.
Parent Discretion. The parties acknowledge and agree that nothing contained in this Section 1.3 or otherwise in these Earnout Provisions is intended or will be construed to restrict Parent’s absolute discretion and control with respect to the operation of the Surviving Company and its business following the Effective Time. Notwithstanding the provisions of this Section 1.3, Parent may issue a Parent Mandate to the Surviving Company, and Section 1.4 governs the changes, if any, to the Earnout EBITDA Target in any applicable Earnout Period resulting from such Parent Mandate. Parent also has the authority to instruct management to add, delete or modify a particular business initiative, business activity or operating method that was not part of the Operating Plan (including, without limitation, an instruction to refrain from undertaking an Acquisition), and Parent does not need to issue a formal Parent Mandate with respect to any such matter.
Parent Discretion. Parent shall have sole discretion over all matters relating to the Products after the Closing, including all matters relating to the development, manufacturing, commercialization or Regulatory Approval of the Products after the Closing (including in respect of the decision to pursue any of the foregoing, and, if applicable, the timing thereof) and to the allocation of personnel and other resources reasonably available to Parent and its Subsidiaries.
Parent Discretion. Prior to the achievement of the FDA Milestone, Parent shall expend no less than *** in connection with research and development, pre-clinical and clinical testing, regulatory submissions and obtaining FDA or other regulatory approvals, in each case related to the LipoSonix Product. Subject to the foregoing sentence, Parent shall have sole and absolute discretion over all matters relating to the LipoSonix Product, the Sales Payment Product and the Gross Profit Payment Product from and after the Effective Time, including, but not limited to, any matter relating to the development, testing, regulatory submission, regulatory approval, manufacturing, marketing, sales, pricing, service or maintenance thereof, or the specific items on which the *** set forth in the prior sentence shall be expended. Furthermore, the Parties acknowledge that circumstances may exist that (i) delay or prevent the achievement of the FDA Milestone or the Sales Milestone or (ii) limit, reduce or otherwise negatively impact the amount of Worldwide Gross Profit, Worldwide Ancillary Gross Profit or Worldwide Net Sales with respect to any Contingent Payment Product, if any, that any member of the Buyer Group may generate during any one or more Contingent Payment Years, thereby eliminating, or reducing the amount of, the Sales/Profit Contingent Payments for any such Contingent Payment Year. Accordingly, nothing herein shall be deemed to be an agreement on the part of any member of the Buyer Group to achieve the FDA Milestone or the Sales Milestone or to generate any amount of Worldwide Gross Profit, Worldwide Ancillary Gross Profit or Worldwide Net Sales with respect to any Contingent Payment Product during any one or more Contingent Payment Years. Notwithstanding the foregoing, from and after the Effective Time, Parent shall, and shall cause each member of the Buyer Group to, not take any actions in bad faith, including in the marketing and sales of the Gross Profit Payment Product or the Sales Payment Product or the operation of the Surviving Corporation, that would reasonably be expected to have the purpose of avoiding or reducing any of the Contingent Payments hereunder. For the avoidance of doubt, however, and in consideration of the substantial amount of Merger Consideration to be paid to the Equityholders promptly after the Effective Time, and subject to the obligation to expend *** set forth in the first sentence of this Section 3.9(g), no member of the Buyer Group shall be required ...
Parent Discretion. Notwithstanding any other provision of this Agreement, Parent retains the right, in its sole discretion, to refuse to enter into any agreement, understanding or arrangement that might or would lead to Net Company Product Revenue or Net Hearing Aid Sales if the Board of Directors of Parent determines in its good faith business judgment that the approval of such action would breach the directors’ fiduciary duties to Parent and its stockholders.
Parent Discretion. Without limiting the specific obligations of Parent in Sections 6.10 and 6.11, Parent shall have sole discretion over all matters relating to the Contingent Payment Products after the Effective Time, including, but not limited to, any development, testing, manufacturing, marketing and sales decisions relating to any Contingent Payment Product.
