Common use of Right of First Offer; Co-Sale Rights Clause in Contracts

Right of First Offer; Co-Sale Rights. (a) From and after the Effective Date, if GM Holdco as contemplated by Section 9.1(a)(vi), or, from and after November 30, 2011, if any Common Holder (the “Transferring Holder”) desires to Transfer any or all of its Common Membership Interests (the direct or indirect interests of the Company that are proposed to be Transferred, the “Offered Membership Interests”), then prior to entering into a binding agreement with respect to such Transfer, the Transferring Holder shall deliver a notice (the “Sale Notice”) to the other Common Holders of its desire to Transfer the Offered Membership Interests. (b) Each of the Common Holders holding in excess of ten percent (10%) of the Common Membership Interests (such Common Holders, collectively, the “Ten Percent Holders”) may (in its sole discretion, without any obligation to do so) within twenty calendar days after receipt of the Sale Notice, offer to purchase all (but not less than all) of the Offered Membership Interests specified in the Sale Notice, whether by itself or together with one or more other Ten Percent Holders (each Ten Percent Holders submitting such offer, an “Offering Member”), by delivering a written notice to the Transferring Holder and the other Common Holders, specifying the proposed purchase price and in reasonable detail the other material terms and conditions of the offer (each an “Offer”). In addition, each Common Holder may (in its sole discretion without any obligation to do so) within such time period elect to participate in the contemplated Transfer by delivering a written notice to the Transferring Holder, specifying the sale price at or above which it would sell all or any portion of its Pro Rata Share of the Offered Membership Interests (each a “Co-Sale Offer”). (c) Within ten calendar days after the delivery of one or more Offers to the Transferring Holder and the other Ten Percent Holders, the Transferring Holder may accept any one of the Offers or reject any or all of the Offers in its sole discretion by delivery of a written notice of such acceptance or rejection, as the case may be, to the Offering Members (the “Acceptance/Rejection Notice”). (d) If the Transferring Holder accepts one of the Offers (the “Accepted Offer”), then the Offering Members whose Offer(s) were rejected by the Transferring Holder shall have the right (but not the obligation), by giving written notice to the Transferring Holder and the Offering Member(s) that submitted the Accepted Offer within five calendar days following the delivery of the Acceptance/Rejection Notice, to participate in the proposed Transfer on the terms and subject to the conditions set forth in the Accepted Offer (all Offering Members participating in such Transfer, the “Accepting Offering Members”) and to purchase the number of Offered Membership Interests to be Transferred by the Transferring Member as shall be equal to the product obtained by multiplying (i) the total number of Offered Membership Interests, by (ii) a fraction (A) the numerator of which shall be the total number of Common Membership Interests held by such Accepting Offering Member as of the date of the Acceptance/Rejection Notice and (B) the denominator of which shall be the total number of Common Membership Interests then held by all Accepting Offering Members. If the Transferring Holder has accepted one of the Offers, then the Transferring Holder and the Accepting Offering Members shall promptly and in good faith negotiate and enter into written definitive agreements setting forth the definitive terms of the Accepted Offer. (e) If (i)(A) the Transferring Holder and the Accepting Offering Members do not enter into a definitive agreement regarding the purchase of the Offered Membership Interests within forty calendar days after delivery of the Acceptance/Rejection Notice, (B) the Transferring Holder rejects all of the Offers or (C) no Offer is made and either (ii)(A) none of the other Common Holders gives a Co-Sale Offer within the time period set forth in Section 9.2(b) or (B) the Transferring Holder accepts a price lower than the price set forth in the Co-Sale Offer(s), then the Transferring Holder may Transfer all (but not less than all) of the Offered Membership Interests (in the case of clause (i)(A) or (i)(B) above, at a price and on terms that are no more favorable to the prospective acquirer than the terms and conditions specified in any Offer) for a period ending on the later to occur of (x) one hundred twenty calendar days thereafter or (y) if a definitive agreement to Transfer the Offered Membership Interests is entered into by the Transferring Holder within such one hundred twenty calendar day period, the date on which all applicable approvals and consents of Governmental Entities and other Persons with respect to such proposed Transfer have been obtained and any applicable waiting periods under Law have expired or been terminated; provided that each of the Company and the Members hereby agrees to use its commercially reasonable efforts to promptly obtain, or to assist the Company or any other Member in promptly obtaining, all of the foregoing approvals and consents and to take such other actions as may be reasonably requested by the Company or any other Member in connection with such Transfer. If, however, the Transferring Holder fails so to complete such Transfer of the Offered Membership Interests within such time period or if any such agreement to Transfer is terminated, then any proposed Transfer shall again become subject to the Ten Percent Holders’ right of first offer and the Common Holders’ co-sale rights set forth in this Section 9.2 and to the other provisions of this Article IX. (f) If (i)(A) the Transferring Holder and the Accepting Offering Members do not enter into a definitive agreement regarding the purchase of the Offered Membership Interests within forty calendar days after delivery of the Acceptance/Rejection Notice, (B) the Transferring Holder rejects all of the Offers or (C) no Offer is made and (ii) any of the Common Holders have elected to participate in such Transfer at or above the sale price set forth in the definitive agreements governing such Transfer (such Common Holders, the “Co-Sale Members”), then the Transferring Holder may Transfer Offered Membership Interests to any Person and the Co-Sale Members shall be entitled to sell in the contemplated Transfer, for a period ending on the later to occur of (1) one hundred twenty calendar days thereafter or (2) if a definitive agreement to Transfer the Offered Membership Interests is entered into by the Transferring Holder within such one hundred twenty calendar day period, the date on which all applicable approvals and consents of Governmental Entities and other Persons with respect to such proposed Transfer have been obtained and any applicable waiting periods under Law have expired or been terminated; provided that each of the Company and the Members hereby agrees to use its commercially reasonable efforts to promptly obtain, or to assist the Company or any other Member in promptly obtaining, all of the foregoing approvals and consents and to take such other actions as may be reasonably requested by the Company or any other Member in connection with such Transfer. In such Transfer, the Co-Sale Members shall each be entitled to sell, at the same price and on the same terms as the Transferring Holder, all or any portion of such Co-Sale Member’s Pro Rata Share of the Offered Membership Interests. “Pro Rata Share” means a number of Common Membership Interests up to the number equal to the total number of Offered Membership Interests, multiplied by a fraction (x) the numerator of which is the number of Common Membership Interests held by such Co-Sale Member, and (y) the denominator of which is the number of Common Membership Interests held, in the aggregate, by the Transferring Holder and all Co-Sale Members. Subject to Section 12.7(d), the Transferring Holder shall not Transfer any of the Offered Membership Interests to any prospective Transferee if such prospective Transferee declines to allow the participation of the Co-Sale Members, unless the Transferring Holder acquires from each Co-Sale Member (at the price set forth in the definitive agreement governing the Transfer by the Transferring Holder) the number of Common Membership Interests such Co-Sale Member would have been entitled to Transfer to the prospective Transferee (or, if less, the number of Membership Interests that such Co-Sale Member requested to Transfer to such Transferee). Each Co-Sale Member Transferring Common Membership Interests pursuant to this Section 9.2(f) shall pay its own costs of any sale and a pro rata share (based on the relative consideration to be received in respect of the Common Membership Interests to be sold) of the expenses incurred by the Co-Sale Members Transferring Common Membership Interests pursuant to this Section 9.2(f) (to the extent such costs are incurred for the benefit of all of such Co-Sale Members and are not otherwise paid by the Transferee) in connection with such Transfer and shall be obligated to provide the same representations, warranties, covenants and agreements that the Transferring Holder agrees to provide in connection with such Transfer. Each Co-Sale Member Transferring Common Membership Interests pursuant to this Section 9.2(f) shall be obligated to join severally on a pro rata basis (based on the relative consideration to be received in respect of the Common Membership Interests to be sold) in any indemnification or other obligations that the Transferring Holder agrees to provide or undertake in connection with such Transfer (including any representations given with respect to the business and condition of the Company and/or its Subsidiaries, but other than any such obligations that relate specifically to a particular Co-Sale Member, such as indemnification with respect to representations and warranties given by a Co-Sale Member regarding such Co-Sale Member’s non-contravention, title and ownership of, and authority to sell, such Common Membership Interests); provided that the liability resulting from any such indemnity or similar obligation shall be several and not joint as among the indemnitors. If, however, the Transferring Holder fails so to complete such Transfer of the Offered Membership Interests within the time period set forth above or if any such agreement to Transfer is terminated, then any proposed Transfer shall again become subject to the Ten Percent Holders’ right of first offer and the Co-Sale Member’s co-sale rights set forth in this Section 9.2 and to the other provisions of this Article IX. The right of first offer and co-sale rights set forth in this Section 9.2 shall not apply to any Transfer contemplated by Section 12.2 and/or Section 12.7(a), and the co-sale rights set forth in this Section 9.2 shall not apply with respect to any Transfer consummated in accordance with the participation rights set forth in the Registration Rights Agreement. The co-sale rights set forth in this Section 9.2 shall terminate with respect to any Co-Sale Member at such time as such Co-Sale Member holds less than twenty percent (20%) of the Common Membership Interests. For the purposes of this Section 9.2(f), in the event that a Transferring Holder is Transferring Offered Membership Interests, following the later to occur of (x) November 30, 2011, and (y) two years following the initial Public Offering of the Company unless such Public Offering occurs prior to November 30, 2009, in which case following the second anniversary of such Public Offering, in excess of forty percent (40%) of the Common Membership Interests outstanding at such time are proposed to be Transferred, then (1) the definition of “Co-Sale Members” shall be deemed to include the Class C-1 Holders with respect to that portion of Class C-1 Membership Interest equivalent to the vested Management Units, provided that the Transferee shall have agreed in writing to accept Class C-1 Membership Interests, in which case the price at which such Class C-1 Holders may sell their Class C-1 Membership Interests shall be the consideration proposed to be paid by the Transferee with respect to the Class C-1 Membership Interests, which consideration may be less than the consideration to be paid to the other members with respect to the Membership Interests to be Transferred by them in such transfer and (2) the phrase “Common Membership Interests” in the definition of “Pro Rata Share” shall be replaced with the phrase “Membership Interests.”

Right of First Offer; Co-Sale Rights. (a) From and after the Effective Date, if GM Holdco as contemplated by Section 9.1(a)(vi), or, from and after November 30, 2011the fifth anniversary of the Effective Date, if any Common Holder (the “Transferring Holder”) desires to Transfer any or all of its Common Membership Interests (the direct or indirect interests of the Company that are proposed to be Transferred, the “Offered Membership Interests”), then prior to entering into a binding agreement with respect to such Transfer, the Transferring Holder shall deliver a notice (the “Sale Notice”) to the other Common Holders of its desire to Transfer the Offered Membership Interests. (b) Each of the Common Holders holding in excess of ten percent (10%) of the Common Membership Interests (such Common Holders, collectively, the “Ten Percent Holders”) may (in its sole discretion, without any obligation to do so) within twenty calendar days after receipt of the Sale Notice, offer to purchase all (but not less than all) of the Offered Membership Interests specified in the Sale Notice, whether by itself or together with one or more other Ten Percent Holders (each Ten Percent Holders submitting such offer, an “Offering Member”), by delivering a written notice to the Transferring Holder and the other Common Holders, specifying the proposed purchase price and in reasonable detail the other material terms and conditions of the offer (each an “Offer”). In addition, each Common Holder may (in its sole discretion without any obligation to do so) within such time period elect to participate in the contemplated Transfer by delivering a written notice to the Transferring Holder, specifying the sale price at or above which it would sell all or any portion of its Pro Rata Share of the Offered Membership Interests (each a “Co-Sale Offer”). (c) Within ten calendar days after the delivery of one or more Offers to the Transferring Holder and the other Ten Percent Holders, the Transferring Holder may accept any one of the Offers or reject any or all of the Offers in its sole discretion by delivery of a written notice of such acceptance or rejection, as the case may be, to the Offering Members (the “Acceptance/Rejection Notice”). (d) If the Transferring Holder accepts one of the Offers (the “Accepted Offer”), then the Offering Members whose Offer(s) were rejected by the Transferring Holder shall have the right (but not the obligation), by giving written notice to the Transferring Holder and the Offering Member(s) that submitted the Accepted Offer within five calendar days following the delivery of the Acceptance/Rejection Notice, to participate in the proposed Transfer on the terms and subject to the conditions set forth in the Accepted Offer (all Offering Members participating in such Transfer, the “Accepting Offering Members”) and to purchase the number of Offered Membership Interests to be Transferred by the Transferring Member as shall be equal to the product obtained by multiplying (i) the total number of Offered Membership Interests, by (ii) a fraction (A) the numerator of which shall be the total number of Common Membership Interests held by such Accepting Offering Member as of the date of the Acceptance/Rejection Notice and (B) the denominator of which shall be the total number of Common Membership Interests then held by all Accepting Offering Members. If the Transferring Holder has accepted one of the Offers, then the Transferring Holder and the Accepting Offering Members shall promptly and in good faith negotiate and enter into written definitive agreements setting forth the definitive terms of the Accepted Offer. (e) If (i)(A) the Transferring Holder and the Accepting Offering Members do not enter into a definitive agreement regarding the purchase of the Offered Membership Interests within forty calendar days after delivery of the Acceptance/Rejection Notice, (B) the Transferring Holder rejects all of the Offers or (C) no Offer is made and either (ii)(A) none of the other Common Holders gives a Co-Sale Offer within the time period set forth in Section 9.2(b) or (B) the Transferring Holder accepts a price lower than the price set forth in the Co-Sale Offer(s), then the Transferring Holder may Transfer all (but not less than all) of the Offered Membership Interests (in the case of clause (i)(A) or (i)(B) above, at a price and on terms that are no more favorable to the prospective acquirer than the terms and conditions specified in any Offer) for a period ending on the later to occur of (x) one hundred twenty calendar days thereafter or (y) if a definitive agreement to Transfer the Offered Membership Interests is entered into by the Transferring Holder within such one hundred twenty calendar day period, the date on which all applicable approvals and consents of Governmental Entities and other Persons with respect to such proposed Transfer have been obtained and any applicable waiting periods under Law have expired or been terminated; provided that each of the Company and the Members hereby agrees to use its commercially reasonable efforts to promptly obtain, or to assist the Company or any other Member in promptly obtaining, all of the foregoing approvals and consents and to take such other actions as may be reasonably requested by the Company or any other Member in connection with such Transfer. If, however, the Transferring Holder fails so to complete such Transfer of the Offered Membership Interests within such time period or if any such agreement to Transfer is terminated, then any proposed Transfer shall again become subject to the Ten Percent Holders’ right of first offer and the Common Holders’ co-sale rights set forth in this Section 9.2 and to the other provisions of this Article IX. (f) If (i)(A) the Transferring Holder and the Accepting Offering Members do not enter into a definitive agreement regarding the purchase of the Offered Membership Interests within forty calendar days after delivery of the Acceptance/Rejection Notice, (B) the Transferring Holder rejects all of the Offers or (C) no Offer is made and (ii) any of the Common Holders have elected to participate in such Transfer at or above the sale price set forth in the definitive agreements governing such Transfer (such Common Holders, the “Co-Sale Members”), then the Transferring Holder may Transfer Offered Membership Interests to any Person and the Co-Sale Members shall be entitled to sell in the contemplated Transfer, for a period ending on the later to occur of (1) one hundred twenty calendar days thereafter or (2) if a definitive agreement to Transfer the Offered Membership Interests is entered into by the Transferring Holder within such one hundred twenty calendar day period, the date on which all applicable approvals and consents of Governmental Entities and other Persons with respect to such proposed Transfer have been obtained and any applicable waiting periods under Law have expired or been terminated; provided that each of the Company and the Members hereby agrees to use its commercially reasonable efforts to promptly obtain, or to assist the Company or any other Member in promptly obtaining, all of the foregoing approvals and consents and to take such other actions as may be reasonably requested by the Company or any other Member in connection with such Transfer. In such Transfer, the Co-Sale Members shall each be entitled to sell, at the same price and on the same terms as the Transferring Holder, all or any portion of such Co-Sale Member’s Pro Rata Share of the Offered Membership Interests. “Pro Rata Share” means a number of Common Membership Interests up to the number equal to the total number of Offered Membership Interests, multiplied by a fraction (x) the numerator of which is the number of Common Membership Interests held by such Co-Sale Member, and (y) the denominator of which is the number of Common Membership Interests held, in the aggregate, by the Transferring Holder and all Co-Sale Members. Subject to Section 12.7(d), the Transferring Holder shall not Transfer any of the Offered Membership Interests to any prospective Transferee if such prospective Transferee declines to allow the participation of the Co-Sale Members, unless the Transferring Holder acquires from each Co-Sale Member (at the price set forth in the definitive agreement governing the Transfer by the Transferring Holder) the number of Common Membership Interests such Co-Sale Member would have been entitled to Transfer to the prospective Transferee (or, if less, the number of Membership Interests that such Co-Sale Member requested to Transfer to such Transferee). Each Co-Sale Member Transferring Common Membership Interests pursuant to this Section 9.2(f) shall pay its own costs of any sale and a pro rata share (based on the relative consideration to be received in respect of the Common Membership Interests to be sold) of the expenses incurred by the Co-Sale Members Transferring Common Membership Interests pursuant to this Section 9.2(f) (to the extent such costs are incurred for the benefit of all of such Co-Sale Members and are not otherwise paid by the Transferee) in connection with such Transfer and shall be obligated to provide the same representations, warranties, covenants and agreements that the Transferring Holder agrees to provide in connection with such Transfer. Each Co-Sale Member Transferring Common Membership Interests pursuant to this Section 9.2(f) shall be obligated to join severally on a pro rata basis (based on the relative consideration to be received in respect of the Common Membership Interests to be sold) in any indemnification or other obligations that the Transferring Holder agrees to provide or undertake in connection with such Transfer (including any representations given with respect to the business and condition of the Company and/or its Subsidiaries, but other than any such obligations that relate specifically to a particular Co-Sale Member, such as indemnification with respect to representations and warranties given by a Co-Sale Member regarding such Co-Sale Member’s non-contravention, title and ownership of, and authority to sell, such Common Membership Interests); provided that the liability resulting from any such indemnity or similar obligation shall be several and not joint as among the indemnitors. If, however, the Transferring Holder fails so to complete such Transfer of the Offered Membership Interests within the time period set forth above or if any such agreement to Transfer is terminated, then any proposed Transfer shall again become subject to the Ten Percent Holders’ right of first offer and the Co-Sale Member’s co-sale rights set forth in this Section 9.2 and to the other provisions of this Article IX. The right of first offer and co-sale rights set forth in this Section 9.2 shall not apply to any Transfer contemplated by Section 12.2 and/or Section 12.7(a), and the co-sale rights set forth in this Section 9.2 shall not apply with respect to any Transfer consummated in accordance with the participation rights set forth in the Registration Rights Agreement. The co-sale rights set forth in this Section 9.2 shall terminate with respect to any Co-Sale Member at such time as such Co-Sale Member holds less than twenty percent (20%) of the Common Membership Interests. For the purposes of this Section 9.2(f), in the event that a Transferring Holder is Transferring Offered Membership Interests, following the later to occur of (x) November 30, 2011, and (y) two years following the initial Public Offering of the Company unless such Public Offering occurs prior to November 30, 2009, in which case following the second anniversary of such Public Offering, in excess of forty percent (40%) of the Common Membership Interests outstanding at such time are proposed to be Transferred, then (1) the definition of “Co-Sale Members” shall be deemed to include the Class C-1 Holders with respect to that portion of Class C-1 Membership Interest equivalent to the vested Management Units, provided that the Transferee shall have agreed in writing to accept Class C-1 Membership Interests, in which case the price at which such Class C-1 Holders may sell their Class C-1 Membership Interests shall be the consideration proposed to be paid by the Transferee with respect to the Class C-1 Membership Interests, which consideration may be less than the consideration to be paid to the other members with respect to the Membership Interests to be Transferred by them in such transfer and (2) the phrase “Common Membership Interests” in the definition of “Pro Rata Share” shall be replaced with the phrase “Membership Interests.”

Right of First Offer; Co-Sale Rights. (a) From and after the Effective Date, if GM Holdco as contemplated by Section 9.1(a)(vi), or, from and after November 30, 2011the fifth anniversary of the Effective Date, if any Common Holder (the “Transferring Holder”) desires to Transfer any or all of its Common Membership Interests (the direct or indirect interests of the Company that are proposed to be Transferred, the “Offered Membership Interests”), then prior to entering into a binding agreement with respect to such Transfer, the Transferring Holder shall deliver a notice (the “Sale Notice”) to the other Common Holders of its desire to Transfer the Offered Membership Interests. (b) Each of the Common Holders holding in excess of ten percent (10%) of the Common Membership Interests (such Common Holders, collectively, the “Ten Percent Holders”) may (in its sole discretion, without any obligation to do so) within twenty calendar days after receipt of the Sale Notice, offer to purchase all (but not less than all) of the Offered Membership Interests specified in the Sale Notice, whether by itself or together with one or more other Ten Percent Holders (each Ten Percent Holders submitting such offer, an “Offering Member”), by delivering a written notice to the Transferring Holder and the other Common Holders, specifying the proposed purchase price and in reasonable detail the other material terms and conditions of the offer (each an “Offer”). In addition, each Common Holder may (in its sole discretion without any obligation to do so) within such time period elect to participate in the contemplated Transfer by delivering a written notice to the Transferring Holder, specifying the sale price at or above which it would sell all or any portion of its Pro Rata Share of the Offered Membership Interests (each a “Co-Sale Offer”). (c) Within ten calendar days after the delivery of one or more Offers to the Transferring Holder and the other Ten Percent Holders, the Transferring Holder may accept any one of the Offers or reject any or all of the Offers in its sole discretion by delivery of a written notice of such acceptance or rejection, as the case may be, to the Offering Members (the “Acceptance/Rejection Notice”). (d) If the Transferring Holder accepts one of the Offers (the “Accepted Offer”), then the Offering Members whose Offer(s) were rejected by the Transferring Holder shall have the right (but not the obligation), by giving written notice to the Transferring Holder and the Offering Member(s) that submitted the Accepted Offer within five calendar days following the delivery of the Acceptance/Rejection Notice, to participate in the proposed Transfer on the terms and subject to the conditions set forth in the Accepted Offer (all Offering Members participating in such Transfer, the “Accepting Offering Members”) and to purchase the number of Offered Membership Interests to be Transferred by the Transferring Member as shall be equal to the product obtained by multiplying (i) the total number of Offered Membership Interests, by (ii) a fraction (A) the numerator of which shall be the total number of Common Membership Interests held by such Accepting Offering Member as of the date of the Acceptance/Rejection Notice and (B) the denominator of which shall be the total number of Common Membership Interests then held by all Accepting Offering Members. If the Transferring Holder has accepted one of the Offers, then the Transferring Holder and the Accepting Offering Members shall promptly and in good faith negotiate and enter into written definitive agreements setting forth the definitive terms of the Accepted Offer. (e) If (i)(A) the Transferring Holder and the Accepting Offering Members do not enter into a definitive agreement regarding the purchase of the Offered Membership Interests within forty calendar days after delivery of the Acceptance/Rejection Notice, (B) the Transferring Holder rejects all of the Offers or (C) no Offer is made and either (ii)(A) none of the other Common Holders gives a Co-Sale Offer within the time period set forth in Section 9.2(b) or (B) the Transferring Holder accepts a price lower than the price set forth in the Co-Sale Offer(s), then the Transferring Holder may Transfer all (but not less than all) of the Offered Membership Interests (in the case of clause (i)(A) or (i)(B) above, at a price and on terms that are no more favorable to the prospective acquirer than the terms and conditions specified in any Offer) for a period ending on the later to occur of (x) one hundred twenty calendar days thereafter or (y) if a definitive agreement to Transfer the Offered Membership Interests is entered into by the Transferring Holder within such one hundred twenty calendar day period, the date on which all applicable approvals and consents of Governmental Entities and other Persons with respect to such proposed Transfer have been obtained and any applicable waiting periods under Law have expired or been terminated; provided that each of the Company and the Members hereby agrees to use its commercially reasonable efforts to promptly obtain, or to assist the Company or any other Member in promptly obtaining, all of the foregoing approvals and consents and to take such other actions as may be reasonably requested by the Company or any other Member in connection with such Transfer. If, however, the Transferring Holder fails so to complete such Transfer of the Offered Membership Interests within such time period or if any such agreement to Transfer is terminated, then any proposed Transfer shall again become subject to the Ten Percent Holders’ right of first offer and the Common Holders’ co-sale rights set forth in this Section 9.2 and to the other provisions of this Article IX. (f) If (i)(A) the Transferring Holder and the Accepting Offering Members do not enter into a definitive agreement regarding the purchase of the Offered Membership Interests within forty calendar days after delivery of the Acceptance/Rejection Notice, (B) the Transferring Holder rejects all of the Offers or (C) no Offer is made and (ii) any of the Common Holders have elected to participate in such Transfer at or above the sale price set forth in the definitive agreements governing such Transfer (such Common Holders, the “Co-Sale Members”), then the Transferring Holder may Transfer Offered Membership Interests to any Person and the Co-Sale Members shall be entitled to sell in the contemplated Transfer, for a period ending on the later to occur of (1) one hundred twenty calendar days thereafter or (2) if a definitive agreement to Transfer the Offered Membership Interests is entered into by the Transferring Holder within such one hundred twenty calendar day period, the date on which all applicable approvals and consents of Governmental Entities and other Persons with respect to such proposed Transfer have been obtained and any applicable waiting periods under Law have expired or been terminated; provided that each of the Company and the Members hereby agrees to use its commercially reasonable efforts to promptly obtain, or to assist the Company or any other Member in promptly obtaining, all of the foregoing approvals and consents and to take such other actions as may be reasonably requested by the Company or any other Member in connection with such Transfer. In such Transfer, the Co-Sale Members shall each be entitled to sell, at the same price and on the same terms as the Transferring Holder, all or any portion of such Co-Sale Member’s Pro Rata Share of the Offered Membership Interests. “Pro Rata Share” means a number of Common Membership Interests up to the number equal to the total number of Offered Membership Interests, multiplied by a fraction (x) the numerator of which is the number of Common Membership Interests held by such Co-Sale Member, and (y) the denominator of which is the number of Common Membership Interests held, in the aggregate, by the Transferring Holder and all Co-Sale Members. Subject to Section 12.7(d12.6(d), the Transferring Holder shall not Transfer any of the Offered Membership Interests to any prospective Transferee if such prospective Transferee declines to allow the participation of the Co-Sale Members, unless the Transferring Holder acquires from each Co-Sale Member (at the price set forth in the definitive agreement governing the Transfer by the Transferring Holder) the number of Common Membership Interests such Co-Sale Member would have been entitled to Transfer to the prospective Transferee (or, if less, the number of Membership Interests that such Co-Sale Member requested to Transfer to such Transferee). Each Co-Sale Member Transferring Common Membership Interests pursuant to this Section 9.2(f) shall pay its own costs of any sale and a pro rata share (based on the relative consideration to be received in respect of the Common Membership Interests to be sold) of the expenses incurred by the Co-Sale Members Transferring Common Membership Interests pursuant to this Section 9.2(f) (to the extent such costs are incurred for the benefit of all of such Co-Sale Members and are not otherwise paid by the Transferee) in connection with such Transfer and shall be obligated to provide the same representations, warranties, covenants and agreements that the Transferring Holder agrees to provide in connection with such Transfer. Each Co-Sale Member Transferring Common Membership Interests pursuant to this Section 9.2(f) shall be obligated to join severally on a pro rata basis (based on the relative consideration to be received in respect of the Common Membership Interests to be sold) in any indemnification or other obligations that the Transferring Holder agrees to provide or undertake in connection with such Transfer (including any representations given with respect to the business and condition of the Company and/or its Subsidiaries, but other than any such obligations that relate specifically to a particular Co-Sale Member, such as indemnification with respect to representations and warranties given by a Co-Sale Member regarding such Co-Sale Member’s non-contravention, title and ownership of, and authority to sell, such Common Membership Interests); provided that the liability resulting from any such indemnity or similar obligation shall be several and not joint as among the indemnitors. If, however, the Transferring Holder fails so to complete such Transfer of the Offered Membership Interests within the time period set forth above or if any such agreement to Transfer is terminated, then any proposed Transfer shall again become subject to the Ten Percent Holders’ right of first offer and the Co-Sale Member’s co-sale rights set forth in this Section 9.2 and to the other provisions of this Article IX. The right of first offer and co-sale rights set forth in this Section 9.2 shall not apply to any Transfer contemplated by Section 12.2 and/or Section 12.7(a12.6(a), and the co-sale rights set forth in this Section 9.2 shall not apply with respect to any Transfer consummated in accordance with the participation rights set forth in the Registration Rights Agreement. The co-sale rights set forth in this Section 9.2 shall terminate with respect to any Co-Sale Member at such time as such Co-Sale Member holds less than twenty percent (20%) of the Common Membership Interests. For the purposes of this Section 9.2(f), in the event that a Transferring Holder is Transferring Offered Membership Interests, following the later to occur of (x) November 30, 2011, five years following the Effective Date and (y) two years following the initial Public Offering of the Company unless such Public Offering occurs prior to November 30, 2009the third anniversary of the Effective Date, in which case following the second anniversary of such Public Offering, in excess of forty percent (40%) of the Common Membership Interests outstanding at such time are proposed to be Transferred, then (1) the definition of “Co-Sale Members” shall be deemed to include the Class C-1 Holders with respect to that portion of Class C-1 Membership Interest equivalent to the vested Management Units, provided that the Transferee shall have agreed in writing to accept Class C-1 Membership Interests, in which case the price at which such Class C-1 Holders may sell their Class C-1 Membership Interests shall be the consideration proposed to be paid by the Transferee with respect to the Class C-1 Membership Interests, which consideration may be less than the consideration to be paid to the other members with respect to the Membership Interests to be Transferred by them in such transfer and (2) the phrase “Common Membership Interests” in the definition of “Pro Rata Share” shall be replaced with the phrase “Membership Interests”.”