8.11
COMMERCIALIZATION OF CV23 UNITS; CONDUCT OF BUSINESS
POST-CLOSING.
FROM AND AFTER THE CLOSING THROUGH THE END OF CALENDAR YEAR 2014,
PURCHASER SHALL: (I) SEPARATELY ACCOUNT FOR NET SALES AND SHALL PROVIDE TO
HANCOCK WITHIN 45 DAYS OF EACH CALENDAR QUARTER A REPORT REFLECTING NET SALES
DURING SUCH CALENDAR QUARTER AND A REPORT REFLECTING THE NUMBER OF CV23 UNITS,
IF ANY, SOLD DURING SUCH CALENDAR QUARTER (PROVIDED THE PROVISIONS OF
SECTION 2.9 ABOVE, AND NOT THE REPORTS DELIVERED PURSUANT TO THIS SECTION 8.11,
SHALL BE DISPOSITIVE OF THE AMOUNT OF ANY CV23 PAYMENT); (II) CAUSE THE COMPANY
(AND NO OTHER SUBSIDIARY OR AFFILIATE OF PURCHASER) TO PURSUE THE
COMMERCIALIZATION OF THE CV23 UNITS IN A COMMERCIALLY REASONABLE MANNER
(PROVIDED THAT THIS SECTION SHALL NOT PREVENT THE COMPANY OR ANY OF ITS
AFFILIATES, AFTER THE CLOSING, FROM ABANDONING OR ALTERING SUCH PLANS FOR
COMMERCIALIZATION IF SUCH DECISIONS ARE MADE IN GOOD FAITH AND ARE COMMERCIALLY
REASONABLE UNDER THE CIRCUMSTANCES), AND (III) NOT TAKE ANY ACTION WITH RESPECT
TO THE OPERATIONS OF THE UTILIMASTER PRODUCT AND SERVICES LINES THAT IS TAKEN
WITH THE PURPOSE AND INTENT OF DEPRIVING THE SHAREHOLDERS OF THE CV23 PAYMENTS
OR THE ANNUAL EARN OUT AMOUNTS.
NOTWITHSTANDING THE FOREGOING, NEITHER THE
COMPANY, NOR PURCHASER, NOR ANY OF THEIR RESPECTIVE AFFILIATES SHALL BE REQUIRED
AT ANY TIME TO MAXIMIZE THE LIKELIHOOD OF ANY CV23 PAYMENT BECOMING DUE TO THE
SHAREHOLDERS PURSUANT TO THIS AGREEMENT OR OTHERWISE TO TAKE INTO ACCOUNT THE
INTERESTS OF THE SHAREHOLDERS IN MAKING ANY DECISIONS WITH RESPECT TO THE
COMMERCIALIZATION OR BUSINESS OPERATIONS RELATED TO THE CV23 UNITS.
NEITHER THE
COMPANY, NOR PURCHASER, NOR ANY OF THEIR RESPECTIVE AFFILIATES SHALL OWE ANY
FIDUCIARY DUTY TO ANY SHAREHOLDER
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AS A RESULT OF THE CONTINGENT NATURE OF THE CV23 PAYMENTS OR OTHERWISE.
HANCOCK
ACKNOWLEDGES AND AGREES THAT (A) ALL INFORMATION DISCLOSED TO IT PURSUANT TO
THIS SECTION IS AND SHALL BE DEEMED CONFIDENTIAL, NON-PUBLIC INFORMATION
PROTECTED BY THE PROVISIONS OF SECTION 10.17 BELOW, AND (B) THE SOLE PURPOSE OF
THE DISCLOSURE OF ANY SUCH INFORMATION PURSUANT TO THIS SECTION IS IN CONNECTION
WITH THE CALCULATION OF THE CV23 PAYMENTS, IF ANY, AND SUCH INFORMATION SHALL
NOT BE DISCLOSED TO ANY THIRD PERSON OR OTHERWISE USED FOR ANY PURPOSE,
INCLUDING AS A BASIS FOR PURCHASING OR SELLING ANY SECURITIES OF PURCHASER.
8.12
SHAREHOLDERS AGREEMENT.
EACH OF THE SELLER PARTIES CONSENTS TO
THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT AND WAIVES ANY AND ALL OPTIONS,
NOTICES, RESTRICTIONS, AND OTHER PROVISIONS, WHETHER UNDER THE SHAREHOLDERS
AGREEMENT OR OTHERWISE, THAT MIGHT PROHIBIT OR LIMIT OR OTHERWISE RESTRICT OR
IMPAIR THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT, TO THE EXTENT NECESSARY
TO GIVE SUCH TRANSFER FULL LEGAL EFFECT.
8.13
HANCOCK AGREEMENTS.
THE SELLER PARTIES AGREE THAT, EFFECTIVE AS
OF THE CLOSING DATE, ANY CONTRACT BETWEEN ANY UC PARTY, ON ONE HAND, AND
HANCOCK, ON THE OTHER HAND, SHALL AUTOMATICALLY TERMINATE AND BE OF NO FURTHER
FORCE OR EFFECT.
8.14
EMPLOYEE RELEASES.
THE COMPANY SHALL USE COMMERCIALLY REASONABLE
EFFORTS TO OBTAIN FROM EACH