(3) Section 11.04(d)(vi) of the LLCA is hereby amended and restated in its entirety, with effect from and after the date hereof, as follows:
(vi) (A) from May 30, 2019 (the Amendment Start Date) until the date on which the MCK Exit Window terminates or expires, if any such date occurs prior to the date that the right of the MCK Members to approve Reserved Matters terminates pursuant to Section 5.05(b) (such termination or expiration date, the Amendment End Date), and in each case (A) except as expressly contemplated in this Agreement (but including pursuant to an Approved Echo Plan) or (B) except as expressly approved by the compensation committee of the Company or Echo, which such approval includes the approval of an employee or designee of the MCK Member or its Affiliates, as evidenced in the minutes of the applicable meeting or in the unanimous written consent, (1) any modification, waiver, or amendment of the terms of any Echo Shares or other Equity Securities of Echo or its Subsidiaries that were outstanding as of the Amendment Start Date (Grandfathered Echo Securities), or (2) other than pursuant to the terms of Grandfathered Echo Securities, any issuance, or authorization of issuance, grant or other award of any Echo Shares or other Equity Securities of Echo or its Subsidiaries, or any amendment to, modification of, or waiver of the terms of any issuance, grant or other award of any Echo Shares or other Equity Securities of Echo or its Subsidiaries; or
(B) prior to the Amendment Start Date and on or after the Amendment End Date, any issuance, or authorization of issuance, of any Echo Shares or other Equity Securities of Echo or its Subsidiaries, except as expressly contemplated in this Agreement and excluding the issuance of any Equity Securities of Echo or its Subsidiaries pursuant to awards approved by the Board under any Approved Echo Plan;
C. Waiver and Agreement in respect of the Option to Purchase. Each of McK, Change Healthcare Inc., Change Healthcare LLC and Change Solutions hereby agrees and consents as required under the Stockholders Agreement and LLCA (including Section 5.05 thereof) as follows:
(1) For the purposes of this Waiver and Amendment, eRx Cash means cash and cash equivalents of eRx Network Holdings, Inc, and its subsidiaries determined in accordance with generally accepted accounting principles, in effect from time to time, minus (i) deposits in transit, cash overdrafts, outstanding checks, and negative bank balances, minus (ii) restricted cash.
(2) That the Purchase Price under the Option to Purchase will be increased by an amount equal to eRx Cash as of 12:01am (New York time) on the day of Closing (as defined in the Option to Purchase).
(3) That notwithstanding the restrictive covenants contained in Section 8(a) of the Option to Purchase or any other agreements among the parties, the Connect Parties will be permitted, following the earlier of (i) the date of the Echo Option Trigger (as defined in the Option to Purchase) or (ii) the expiration or termination of the MCK Exit Window (as defined in the LLCA), to distribute any eRx Cash from time to time prior to the Business Day prior to the Closing (as defined in the Option to Purchase) to the Echo Shareholders, so long as (A) such distribution is made pro rata among the Echo Shareholders and (B) if such distribution is made following the expiration or termination of the MCK Exit Window but prior to the date of the Echo Option Trigger, any such eRx Cash distributed, in the determination of the board of directors of eRx, is not otherwise reasonably necessary to operate the eRx business in the ordinary course or invest in the eRx business to maintain its competitiveness.