Common use of Sale Transactions Clause in Contracts

Sale Transactions. (a) The Company shall use reasonable best efforts to divest the businesses, equity interests or assets, as applicable, which are the subject of either of the Sale Transactions (as defined in the Merger Agreement) (the “Divestiture Businesses”) to a third party purchaser as promptly as practicable, but, unless extended by mutual agreement of the Parties (as defined in the Merger Agreement), in no event later than December 31, 2023 (such date, as extended, the “End Date” and the sale of the Divestiture Businesses, the “Divestitures”). The Company shall pay over or distribute to US Holding as promptly as reasonably practicable following either of such Divestitures any amounts (which shall be net of any taxes actually paid or payable by the Company on such amounts or holdback, including with respect to any reserve for indemnification required to be reflected on the balance sheet of the Company in accordance with its historical accounting principles, with respect to the applicable Divestiture (an “Indemnification Reserve”)) paid by the applicable third party purchaser(s) to the Company in respect of the applicable Divestiture, including purchase price proceeds and any termination or similar transaction fees payable to the Company (the “Distributions”), and the Company shall pay to US Holding or its Affiliates any amounts due in respect of any such tax liability pursuant to the Tax Allocation Agreement, dated as of November 16, 2020, between the Company and US Holding (the “Tax Allocation Agreement”); provided that if after the Distribution a taxing authority successfully asserts that the tax owed by the Company with respect to any of the Divestitures exceeds the amount of taxes netted against the Distributions and retained by the Company pursuant to the preceding clause (the amount of such excess, the “Additional Tax”), then (i) if US Holding pays the Additional Tax to the relevant tax authority, any amounts owed to US Holding by the Company pursuant to the Tax Allocation Agreement in respect of such Additional Tax shall be deemed offset by an equal amount of the Distribution that, in light of the Additional Tax, should not have been distributed to US Holding, and any such payment obligation of the Company shall be deemed satisfied, and (ii) if the Company pays the Additional Tax to the relevant tax authority, US Holding shall reimburse the Company for the amount of such Additional Tax; provided further that, if applicable, upon (A) the expiration of any periods for holdbacks set forth in the purchase agreement with respect to an applicable Divestiture or (B) the release of any Indemnification Reserve in accordance with the Company’s historical accounting principles, the Company shall pay to US Holding an additional Distribution for any amounts remaining from such holdback or Indemnification Reserve, as applicable, that have not been paid to a third party purchaser.

Sale Transactions. Effect any Sale Transaction unless (ai) The Company shall use reasonable best efforts the proceeds payable to divest the businessesMembers in connection with such Sale Transaction are allocated in accordance with Section 3.2, equity interests or assets(ii) the Sale Transaction, if effected as applicablea sale of Units, which is effected in a manner such that the outstanding securities of each Applicable Blocker Entity are the subject of either sold in lieu of the Series A Preferred Units held by the affiliated Blocker Investor and for the same overall price on a per Unit basis as the other Series A Preferred Units are sold in such Sale Transactions Transaction and (as defined iii) the amount payable in respect of each Series A Preferred Unit at the closing of such Sale Transaction would exceed $2.0037 (subject to equitable Execution Copy adjustment in the Merger Agreementevent of any unit or stock splits, dividends, reverse splits, recapitalizations or other similar events) (the “Divestiture Businesses”) to a third party purchaser as promptly as practicable, but, unless extended by mutual agreement of the Parties (as defined in the Merger Agreement), in no event later than December 31, 2023 (such date, as extendedamount, the “End Date” and the sale of the Divestiture Businesses, the “Divestitures”). The Company shall pay over or distribute to US Holding as promptly as reasonably practicable following either of such Divestitures any amounts (which shall be net of any taxes actually paid or payable by the Company on such amounts or holdback, including with respect to any reserve for indemnification required to be reflected on the balance sheet of the Company in accordance with its historical accounting principles, with respect to the applicable Divestiture (an “Indemnification Reserve”)) paid by the applicable third party purchaser(s) to the Company in respect of the applicable Divestiture, including purchase price proceeds and any termination or similar transaction fees payable to the Company (the “DistributionsMinimum Amount Per Unit”), which Minimum Amount Per Unit is payable in full at the closing of such transaction in cash or in Tradable Securities that are traded on or through the facilities of the New York Stock Exchange or The Nasdaq Global Market; and further provided, that (1) the Company Series A Preferred Holders shall pay not be subject to US Holding escrow, indemnity and other similar provisions in connection with the Sale Transaction more restrictive on a proportional or its Affiliates any amounts due absolute basis than those to which the other Members shall be subject to in respect connection with the Sale Transaction, (2) the Minimum Amount Per Unit shall be payable at the closing of such Sale Transaction free and clear of any such tax liability pursuant to escrow, indemnity, claw-back or similar forfeiture provisions and (3) the Tax Allocation Agreement, dated as escrow shall be the sole source of November 16, 2020, between the Company and US Holding (the “Tax Allocation Agreement”); provided that if after the Distribution a taxing authority successfully asserts that the tax owed by the Company with respect to any of the Divestitures exceeds the amount of taxes netted indemnification against the Distributions and retained by Series A Preferred Holders. Notwithstanding the Company pursuant to the preceding clause (the amount of such excess, the “Additional Tax”), then (i) if US Holding pays the Additional Tax to the relevant tax authority, any amounts owed to US Holding by the Company pursuant to the Tax Allocation Agreement in respect of such Additional Tax shall be deemed offset by an equal amount of the Distribution that, in light of the Additional Tax, should not have been distributed to US Holding, and any such payment obligation of the Company shall be deemed satisfied, and (ii) if the Company pays the Additional Tax to the relevant tax authority, US Holding shall reimburse the Company for the amount of such Additional Tax; provided further that, if applicable, upon (A) the expiration of any periods for holdbacks set forth in the purchase agreement with respect to an applicable Divestiture or (B) the release of any Indemnification Reserve in accordance with the Company’s historical accounting principlesforegoing, the Company shall pay not require the prior written consent of the Requisite Series A Preferred Holders to US Holding an additional Distribution effect a Sale Transaction that is otherwise permitted by this Section 5.3(i) if the liability of the Series A Preferred Holders for any amounts remaining from indemnification claims beyond such holdback escrow is limited to (i) several but not joint liability on a pro rata basis with the other Members for breach by the Company of customary representations relating to the Company’s organization and power, authorization and capitalization, (ii) several but not joint liability for breach by a Series A Preferred Holder of customary representations relating to such Series A Preferred Holder’s organization and power, authorization, and ownership of equity securities, (iii) several but not joint liability for breach by a Series A Preferred Holder of a covenant of such Series A Preferred Holder or Indemnification Reserve, as applicable, that have (iv) several but not been paid to joint liability for fraud or willful misrepresentation by a third party purchaserSeries A Preferred Holder).

Sale Transactions. In the event the Board of Directors, pursuant to Section 7.9, approves a transaction or series of related transactions involving the sale of the Company or the sale, lease, license, exchange or other disposition (aincluding by merger, consolidation, sale of assets or similar business transaction) The by the Company of any assets in excess of $5,000,000 (a “Sale Transaction”), the Board of Directors shall then submit such proposed Sale Transaction to the Members for their approval. Without the written approval of the Members, the Company shall use reasonable best efforts not, and the officers of the Company shall not cause the Company to, enter into any Sale Transaction except in accordance with this Section 7.11. In the event the Members do not agree on proceeding with the Sale Transaction, they shall negotiate in good faith to divest resolve any differences regarding such determination. If the businessesdisagreement cannot be resolved within fifteen (15) days after approval by the Board of Directors, equity interests the Company shall retain KPMG LLP, or assetsif KPMG LLP is unavailable, another independent nationally recognized accounting firm or valuation expert as agreed to by the Members (which agreement shall not be unreasonably withheld) (the “Third Party Valuator”). The Third Party Valuator will conduct a valuation analysis of the Company or the assets proposed to be sold in the Sale Transaction. If the Third Party Valuator determines the value of the Company or the assets proposed to be sold in the Sale Transaction to be less than or equal to the price offered by the acquiror in the Sale Transaction, then the Member objecting to the Sale Transaction shall be deemed to approve of the Sale Transaction, and will be required to vote in favor of the Sale Transaction if a vote is held, and the Sale Transaction will be deemed to have been approved by both Members. If the Third Party Valuator determines the value of the Company or the assets proposed to be sold in the Sales Transaction to be greater than the price offered by the acquiror in the Sale Transaction, then the Member proposing the Sale Transaction shall be deemed to reject the Sales Transaction, and will be required to vote against the Sales Transaction if a vote is held, and the Sale Transaction will be deemed to have been rejected by both Members. The Third Party Valuator’s decision will be final, conclusive and binding, and shall be deemed to have been accepted by all of the parties to this Agreement. The Members will share equally the Third Party Valuator’s fees and expenses. All determinations in accordance with this Section 7.11 will be in writing and will be delivered to each party. If the parties cannot agree on appointing the Third Party Valuator, each of the parties will select an independent nationally recognized accounting firm or valuation expert and those two independent nationally recognized accounting firms or valuation experts, as applicable, which are will appoint the subject of either of the Sale Transactions (as defined in the Merger Agreement) (the “Divestiture Businesses”) to a third party purchaser as promptly as practicable, but, unless extended by mutual agreement of the Parties (as defined in the Merger Agreement), in no event later than December 31, 2023 (such date, as extended, the “End Date” and the sale of the Divestiture Businesses, the “Divestitures”). The Company shall pay over or distribute to US Holding as promptly as reasonably practicable following either of such Divestitures any amounts (which shall be net of any taxes actually paid or payable by the Company on such amounts or holdback, including with respect to any reserve for indemnification required to be reflected on the balance sheet of the Company in accordance with its historical accounting principles, with respect to the applicable Divestiture (an “Indemnification Reserve”)) paid by the applicable third party purchaser(s) to the Company in respect of the applicable Divestiture, including purchase price proceeds and any termination or similar transaction fees payable to the Company (the “Distributions”), and the Company shall pay to US Holding or its Affiliates any amounts due in respect of any such tax liability pursuant to the Tax Allocation Agreement, dated as of November 16, 2020, between the Company and US Holding (the “Tax Allocation Agreement”); provided that if after the Distribution a taxing authority successfully asserts that the tax owed by the Company with respect to any of the Divestitures exceeds the amount of taxes netted against the Distributions and retained by the Company pursuant to the preceding clause (the amount of such excess, the “Additional Tax”), then (i) if US Holding pays the Additional Tax to the relevant tax authority, any amounts owed to US Holding by the Company pursuant to the Tax Allocation Agreement in respect of such Additional Tax shall be deemed offset by an equal amount of the Distribution that, in light of the Additional Tax, should not have been distributed to US Holding, and any such payment obligation of the Company shall be deemed satisfied, and (ii) if the Company pays the Additional Tax to the relevant tax authority, US Holding shall reimburse the Company for the amount of such Additional Tax; provided further that, if applicable, upon (A) the expiration of any periods for holdbacks set forth in the purchase agreement with respect to an applicable Divestiture or (B) the release of any Indemnification Reserve in accordance with the Company’s historical accounting principles, the Company shall pay to US Holding an additional Distribution for any amounts remaining from such holdback or Indemnification Reserve, as applicable, that have not been paid to a third party purchaserThird Party Valuator.