Common use of Third Party Transaction Clause in Contracts

Third Party Transaction. Subject to the terms of this Section 4, if MDCP approves a Sale of the Company (and, in the case of any sale or other fundamental change which requires the approval of the managers of a Delaware manager-managed limited liability company pursuant to applicable Delaware law, the Board shall have approved such Sale of the Company), and MDCP notifies the holders of Company Units that it is invoking the provisions of this Section 4, the holders of Company Units shall vote for (to the extent permitted to vote for) and shall be deemed to have consented to and agree to raise no objections against (and to confirm such consent in writing) the Sale of the Company or the process by which such transaction was arranged. If the Sale of the Company is structured as a (i) merger or consolidation, each holder of Company Units shall waive any dissenters’ rights, appraisal rights or similar rights in connection with such merger or consolidation or (ii) sale of Company Units or other equity securities or interests, each holder of Company Units shall agree to sell and surrender all of such holder’s Company Units and rights to acquire Company Units on the terms and conditions approved by MDCP and the Board (to the extent required by applicable Delaware law). The holders of Company Units shall take all necessary or desirable actions in connection with the consummation of the Sale of the Company, including executing a sale contract pursuant to which each holder of Company Units will: (i) severally (but not jointly) make the same representations, warranties and indemnities regarding the Company and its assets, liabilities and business (collectively, the “Company Reps”) and (ii) solely on behalf of such holder, make such representations, warranties and indemnities concerning such holder and the Company Units (if any) to be sold by such holder as may be set forth in any agreement approved by MDCP and the Board (to the extent required by applicable Delaware law); provided that: (A) the pro rata share of a holder of Company Units for any amounts payable in connection with any claim under the Company Reps by the purchaser(s) in such Sale of the Company transaction shall be determined in accordance with Section 4(d) below (any such amount payable, a “Company Loss”), and (B) if any holder of Company Units pays for more than such holder’s pro rata share of a Company Loss (such amount, the “Loss Overpayment”), then each other holder of Company Units will simultaneously contribute to such holder an amount equal to such other holder’s allocable share (based upon such holder’s pro rata share of the Company Loss) of such Loss Overpayment. Notwithstanding anything to the contrary contained herein, no holder of Company Units shall be liable for any Company Loss in an amount (either individually or in the aggregate) greater than the total consideration received by such holder in connection with such Sale of the Company.

Third Party Transaction. Subject to the terms of this Section 4, if MDCP approves a Sale of the Company (and, in the case of any sale or other fundamental change which requires the approval of the managers of a Delaware manager-managed limited liability company pursuant to applicable Delaware law, the Board shall have approved such Sale of the Company), and MDCP notifies the holders of Company Units that it is invoking the provisions of this Section 4, the holders of Company Units shall vote for (to the extent permitted to vote for) and shall be deemed to have consented to and agree to raise no objections against (and to confirm such consent in writing) the Sale of the Company or the process by which such transaction was arranged. If the Sale of the Company is structured as a (i) merger or consolidation, each holder of Company Units shall waive any dissenters’ rights, appraisal rights or similar rights in connection with such merger or consolidation or (ii) sale of Company Units or other equity securities or interests, each holder of Company Units shall agree to sell and surrender all of such holder’s Company Units and rights to acquire Company Units on the terms and conditions approved by MDCP and the Board (to the extent required by applicable Delaware law). The holders of Company Units shall take all necessary or desirable actions in connection with the consummation of the Sale of the Company, including executing a sale contract pursuant to which each holder of Company Units will: (i) severally (but not jointly) make the same representations, warranties and indemnities regarding the Company and its assets, liabilities and business (collectively, the “Company Reps”) and (ii) solely on behalf of such holder, make such representations, warranties and indemnities concerning such holder and the Company Units (if any) to be sold by such holder as may be set forth in any agreement approved by MDCP and the Board (to the extent required by applicable Delaware law); provided that: (A) the pro rata share Pro Rata Share of a holder of Company Units for any amounts payable in connection with any claim under the Company Reps by the purchaser(s) in such Sale of the Company transaction shall be determined in accordance with Section 4(d) below (any such amount payable, a “Company Loss”)) shall be determined in accordance with Section 4(c) below, and (B) if any holder of Company Units pays for more than such holder’s pro rata share Pro Rata Share of a Company Loss (such amount, the “Loss Overpayment”), then each other holder of Company Units will simultaneously contribute to such holder an amount equal to such other holder’s allocable share (based upon such holder’s pro rata share Pro Rata Share of the Company Loss) of such Loss Overpayment. Notwithstanding anything to the contrary contained herein, no holder of Company Units shall be liable for any Company Loss in an amount (either individually or in the aggregate) greater than the total consideration received by such holder in connection with such Sale of the Company.