Common use of Approved Transaction Clause in Contracts

Approved Transaction. (a) So long as BRS Investors and their Permitted Transferees (other than Permitted Transferees under Section 1.1(b)(v)) together own in the aggregate more shares of Common Stock than any other single Investor, if BRS approves the sale of the Company (other than a sale of the Company to BRS Investors or any of its Affiliates), whether by merger, consolidation, sale of outstanding capital stock, sale of all or substantially all of its assets or otherwise (an “Approved Sale of the Company”), or a recapitalization or restructuring of the Company (excluding any recapitalization or restructuring in which BRS Investors have a financial interest other than (x) where the financial interest of BRS Investors is solely in their capacity as stockholders, (y) the provision of services by Bruckmann, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & Co., LLC under the Management Services Agreement, or (z) any recapitalization or restructuring transaction not otherwise covered by the preceding clauses (x) or (y) but which is deemed to have been effected on an arms’ length basis and on terms (including without limitation financial terms) which are commercially reasonable pursuant to Section 2.11) (an “Approved Recapitalization”) (each such Approved Sale of the Company and Approved Recapitalization being herein referred to as an “Approved Transaction”), then: (i) each Investor and Permitted Transferee shall consent to, vote for, and raise no objections against, and waive dissenters and appraisal rights (if any) with respect to, the Approved Transaction; (ii) if the Approved Transaction is structured as a sale, exchange, conversion, redemption, cancellation or other disposition of stock, each Investor and Permitted. Transferee shall have both the right and obligation to sell, exchange, convert, redeem, cancel or otherwise dispose and will be permitted to sell, exchange, convert, redeem, cancel or otherwise dispose all of such Investor’s or Permitted Transferee’s Common Stock, Preferred Stock and options to acquire Common Stock or Preferred Stock on the terms and conditions approved by BRS (subject to the provisions of Section 2.2(b)); (iii) if the Approved Transaction includes the sale, exchange, conversion, redemption, cancellation or other disposition of Securities (other than Common Stock) convertible into or exchangeable for capital stock or Securities of the Company, or options, warrants or other rights to purchase such capital stock or Securities, each Investor or Permitted Transferee will have both the right and obligation to sell, exchange, convert, redeem, cancel or otherwise dispose of such securities or options, warrants or other rights on the terms and conditions approved by BRS (subject to the provisions of Section 2.2(b)); and (iv) in the case of an Approved Recapitalization, any issuance of additional Securities to BRS Investors shall be subject to the provisions of Section 2.4. Each Investor and Permitted Transferee will take all necessary and desirable actions as reasonably requested by BRS in connection with the consummation of an Approved Transaction, including without limitation executing the applicable purchase or other agreement and, in the case of an Approved Sale of the Company, granting, on the same basis granted by BRS, to any buyer of the Securities or any other participant in the Approved Transaction identical indemnification rights (whether directly to the buyer of the Securities or such other participants or pursuant to the provisions of a contribution agreement) pro rata based on the number and type of Securities sold by such Investor or Permitted Transferee; however, the foregoing shall not require that any BRS Investor or any Lender Investor incur indemnification obligations in the Approved Transaction in an amount in excess of the net proceeds received by such BRS Investor or such Lender Investor in the Approved Transaction. (b) The obligations of each of Investors and Permitted Transferees with respect to an Approved Transaction are subject to the satisfaction of the conditions that: (i) subject to the provisions of clause (iii) of this Section 2.2(b), upon the consummation of the Approved Transaction, all of Investors and Permitted Transferees will receive the same form and amount of consideration per share of Common Stock (net of, in the case of an option or any other right to acquire Common Stock, the exercise price of such option), or if any holder of Common Stock is given an option as to the form and amount of consideration to be received in respect of Common Stock, all Investors and Permitted Transferees holding Common Stock will be given the same option; (ii) subject to the provisions of clause (iii) of this Section 2.2(b), upon the consummation of the Approved Transaction, all of Investors and Permitted Transferees holding Preferred Stock will receive the same form and amount of consideration per share of Preferred Stock (it being understood, however, that the amount of consideration per share of Preferred Stock may vary to reflect the accrued and unpaid dividends thereon pursuant to the terms thereof, to the extent different shares of Preferred Stock have been outstanding for different periods of time), or if any holder of Preferred Stock is given an option as to the form and amount of consideration to be received in respect of Preferred Stock, all Investors and Permitted Transferees holding Preferred Stock will be given the same option; (iii) in the case of a holder of any Securities referred to in clause (iii) of Section 2.2(a): (A) in the case of such Securities which are not Incentive Securities, at the election of the Company and BRS, either (I) such Securities shall remain, outstanding following such Approved Transaction or (II) the holder shall receive in such Approved Transaction (unless otherwise agreed by the Company, BRS and the holder the Vested Incentive Securities or unless otherwise provided in the terms of any agreement or instrument governing or evidencing such Securities), either (x) the same securities or other property that such holder would have received if such holder had converted, exchanged or exercised such security immediately prior to such Approved Transaction (after taking into account the conversion, exchange or exercise price applying to such Security and any applicable tax obligations of the holder in connection with such conversion, exchange or exercise) or (y) a security convertible or exchangeable for, or option, warrant or right to purchase, capital stock or other securities of a successor entity having substantially equivalent value; (B) in the case of such Securities which are Vested Incentive Securities, the holder shall receive in any such Approved Transaction (unless otherwise agreed by the Company, BRS and the holder the Vested Incentive Securities) the same securities or other property that such holder would have received if such holder had converted, exchanged or exercised such Securities immediately prior to such Approved Transaction (after taking into account the conversion, exchange or exercise price applying to such Security and any applicable tax obligations of the holder in connection with such conversion, exchange or exercise); (C) in the case of such Securities which are Earned (but not Vested) Incentive Securities,