Common use of MERGER, CONSOLIDATION, TRANSFER OF ASSETS Clause in Contracts

MERGER, CONSOLIDATION, TRANSFER OF ASSETS. Merge into, consolidate with or acquire any or all of the equity of any other entity, except as set forth at the end of this Section 5.3; make any substantial change in the nature of Borrower's business as conducted as of the date hereof; acquire all or substantially all of the assets of any other entity; nor sell, lease, transfer or otherwise dispose of all or a substantial or material portion of Borrower's assets except in the ordinary course of its business; provided, however, that Borrower may merge into, consolidate with and/or acquire all or substantially all, of the equity of any other entity, so long as (i) no such single transaction, or series of related transactions, requires total consideration (inclusive of cash, the incurring of indebtedness and the assumption of liabilities, but exclusive of consideration paid or payable in the form of stock in Borrower--hereafter "Non-Stock Consideration") on the part of Borrower and/or Subsidiaries to exceed $10,000,000.00, (ii) all such transactions in each fiscal year do not require total Non--Stock Consideration on the part of Borrower and/or Subsidiaries to exceed $20,000,000.00; (iii) in the case of a merger or consolidation, Borrower is the surviving entity, (iv) in the case of an acquisition of all or substantially all of the equity of any other entity, such other entity shall promptly execute and deliver to Bank Third Party Security Agreements, a UCC-1 Financing Statement and a Continuing Guaranties in the form executed by Subsidiaries, (v) prior to each such transaction, Borrower shall deliver to Bank a certificate showing the source of funds for such transaction, provided that no more than an aggregate of $10,000,000.00 in proceeds of the Line of Credit shall be used as Non-Stock Consideration during the term of the Line of Credit, and (vi) Borrower is in compliance with the terms and covenants of this Agreement at the time of and following the closing of each such transaction.;

MERGER, CONSOLIDATION, TRANSFER OF ASSETS. Merge into, into or consolidate with or acquire any or all of the equity of any other entity unless Borrower is the surviving entity, except as set forth at the end aggregate consideration paid or to be paid by Borrower (other than in Borrower's stock) in connection with any such merger does not exceed, in any fiscal year, the Permitted Amount, and following such merger, Borrower is in compliance with all terms and covenants of this Section 5.3Agreement; make any substantial change in the nature of Borrower's business as conducted as of the date hereof; acquire all or substantially all of the assets of or equity interests in any other entityentity unless such other entity is in substantially the same line(s) of business as Borrower and the aggregate consideration paid or to be paid by Borrower (other than in Borrower's stock) for any such acquisition does not exceed, in any fiscal year, the Permitted Amount; nor sell, lease, transfer or otherwise dispose of all or a substantial or material portion of Borrower's assets except in the ordinary course of its business; . The term "Permitted Amount" means, in each fiscal year with respect to all mergers and acquisition permitted hereunder, an aggregate amount equal to 10% of Borrower's Tangible Net Worth as of the end of the immediately preceding fiscal year, provided, however, that Borrower may merge intowith respect to the fiscal year in which Borrower's initial public offering ("IPO") occurs, consolidate with and/or acquire all or substantially all, the "Permitted A mount" shall be 10% of Borrower's Tangible Net Worth as of the equity end of any the fiscal quarter in which the IPO occurs. Each merger or acquisition permitted hereunder shall be "friendly" (i.e. approved by the Board of Directors of the other entity, so long as (i) no such single transaction, or series of related transactions, requires total consideration (inclusive of cash, the incurring of indebtedness and the assumption of liabilities, but exclusive of consideration paid or payable in the form of stock in Borrower--hereafter "Non-Stock Consideration") on the part of Borrower and/or Subsidiaries to exceed $10,000,000.00, (ii) all such transactions in each fiscal year do not require total Non--Stock Consideration on the part of Borrower and/or Subsidiaries to exceed $20,000,000.00; (iii) in the case of a merger or consolidation, Borrower is the surviving entity, (iv) in the case of an acquisition of all or substantially all of the equity of any other entity, such other entity shall promptly execute and deliver to Bank Third Party Security Agreements, a UCC-1 Financing Statement and a Continuing Guaranties in the form executed by Subsidiaries, (v) prior to each such transaction, Borrower shall deliver to Bank a certificate showing the source of funds for such transaction, provided that no more than an aggregate of $10,000,000.00 in proceeds of the Line of Credit shall be used as Non-Stock Consideration during the term of the Line of Credit, and (vi) Borrower is in compliance with the terms and covenants of this Agreement at the time of and following the closing of each such transaction).;

MERGER, CONSOLIDATION, TRANSFER OF ASSETS. Merge into, consolidate with or acquire any or all of the equity of any other entity, except as set forth at the end of this Section 5.35.4; make any substantial change in the nature of Borrower's business as conducted as of the date hereof; acquire all or substantially all of the assets of any other entity; nor sell, lease, transfer or otherwise dispose of all or a substantial or material portion of Borrower's assets except in the ordinary course of its business; provided, however, that Borrower may merge into, consolidate with and/or acquire all or substantially all, all of the equity of any other entity, so long as as (i) no such single transaction, or series of related transactions, requires total consideration (inclusive of cash, the incurring of indebtedness and the assumption of liabilities, but exclusive of consideration paid or payable in the form of stock in Borrower--hereafter Borrower -hereafter "Non-Stock Consideration") on the part of Borrower and/or Subsidiaries to exceed $10,000,000.00, (ii) all such transactions in each fiscal year do not require total Non---Stock Consideration on the part of Borrower and/or Subsidiaries to exceed $20,000,000.0014,000,000.00; (iii) in the case of a merger or consolidation, Borrower is the surviving entity, (iv) in the case of an acquisition of all or substantially all of the equity of any other entity, such other entity shall promptly execute and deliver to Bank Third Party Security Agreements, a UCC-1 Financing Statement and a Continuing Guaranties in the form executed by Subsidiaries, (v) prior to each such transaction, Borrower shall deliver to Bank a certificate showing the source of funds for such transaction, provided that no more than an aggregate of $10,000,000.00 in proceeds of the Line of Credit shall be used as Non-Stock Consideration during the term of the Line of Credit, and (vi) Borrower is in compliance with the terms and covenants of this Agreement at the time of and following the closing of each such transaction.;

MERGER, CONSOLIDATION, TRANSFER OF ASSETS. Merge into, into or consolidate with or acquire any or all of the equity of any other entityentity other than (a) the merger of Subsidiary into Borrower, except and (b) Permitted Transactions (as set forth at the end of this Section 5.3defined below); make any substantial change in the nature of Borrower's ’s business as conducted as of the date hereof; acquire all or substantially all of the assets of any other entityentity other than Permitted Transactions; nor sell, lease, transfer or otherwise dispose of all or a substantial or material portion of Borrower's ’s assets except (w) in the ordinary course of its business; provided, however, (y) the sale of bad or doubtful accounts (provided that Borrower may merge into, consolidate with and/or acquire all or substantially all, net proceeds of such sales are promptly applied to reduce the outstanding principal balance of the equity Line of any other entity, so long as Credit) or (z) as permitted in the Security Agreements executed by Borrower and Subsidiary. “Permitted Transactions” means (i) no such single transaction, mergers with other entities whose businesses are substantially similar to that of Borrower’s or series of related transactions, requires total consideration (inclusive of cash, the incurring of indebtedness and the assumption of liabilities, but exclusive of consideration paid Subsidiary’s so long as Borrower or payable in the form of stock in Borrower--hereafter "Non-Stock Consideration") on the part of Borrower and/or Subsidiaries to exceed $10,000,000.00, (ii) all such transactions in each fiscal year do not require total Non--Stock Consideration on the part of Borrower and/or Subsidiaries to exceed $20,000,000.00; (iii) in the case of a merger or consolidation, Borrower Subsidiary is the surviving entity, (ivii) in the case of an acquisition by Borrower or Subsidiary of all or substantially all of the equity assets of any other entity, such other entity shall promptly execute and deliver to Bank Third Party Security Agreements, a UCC-1 Financing Statement and a Continuing Guaranties in the form executed by Subsidiariesentities or divisions thereof, (viii) prior to each such transaction, the acquisition by Borrower shall deliver to Bank a certificate showing the source or Subsidiary of funds for such transaction, provided that no more not less than an aggregate of $10,000,000.00 in proceeds 50.1% of the Line of Credit shall be used as Non-Stock Consideration during the term outstanding ownership interests in other entities, and, with respect to all of the Line of Creditforegoing, the aggregate consideration paid or payable (in whatever form, including, cash notes, stock in Borrower or Subsidiary or other property) by Borrower and (vi) Borrower is Subsidiary in compliance with the terms and covenants of this Agreement at any fiscal year does not exceed $5,000,000.00. At the time of the sales described in Section 5.5(a)(y) above Bank shall release in fact and following of record all of its security in the closing of each such transactionassets being sold.;

MERGER, CONSOLIDATION, TRANSFER OF ASSETS. Merge into, consolidate with or acquire any or all of the equity of any other entity, except as set forth at the end of this Section 5.3; make any substantial change in the nature of Borrower's business as conducted as of the date hereof; acquire all or substantially all of the assets of any other entity; nor sell, lease, transfer or otherwise dispose of all or a substantial or material portion of Borrower's assets except in the ordinary course of its business; provided, however, that Borrower may merge into, consolidate with and/or acquire all or substantially all, all of the equity of any other entity, so long as as (i) no such single transaction, or series of related transactions, requires total consideration (inclusive of cash, the incurring of indebtedness and the assumption of liabilities, but exclusive of consideration paid or payable in the form of stock in Borrower--Borrower - hereafter "Non-Stock Consideration") on the part of Borrower and/or Subsidiaries to exceed $10,000,000.00, (ii) all such transactions in each fiscal year do not require total Non---Stock Consideration on the part of Borrower and/or Subsidiaries to exceed $20,000,000.00; (iii) in the case of a merger or consolidation, Borrower is the surviving entity, (iv) in the case of an acquisition of all or substantially all of the equity of any other entity, such other entity shall promptly execute and deliver to Bank Third Party Security Agreements, a UCC-1 Financing Statement and a Continuing Guaranties in the form executed by Subsidiaries, (v) prior to each such transaction, Borrower shall deliver to Bank a certificate showing the source of funds for such transaction, provided that no more than an aggregate of $10,000,000.00 in proceeds of the Line of Credit shall be used as Non-Stock Consideration during the term of the Line of Credit, and (vi) Borrower is in compliance with the terms and covenants of this Agreement at the time of and following the closing of each such transaction.;

MERGER, CONSOLIDATION, TRANSFER OF ASSETS. Merge into, into or consolidate with or acquire any or all of the equity of any other entityentity other than (a) the merger of Subsidiary into Borrower, except and (b) Permitted Transactions (as set forth at the end of this Section 5.3defined below); make any substantial change in the nature of Borrower's business as conducted as of the date hereof; acquire all or substantially all of the assets of any other entityentity other than Permitted Transactions; nor sell, lease, transfer or otherwise dispose of all or a substantial or material portion of Borrower's assets except (w) in the ordinary course of its business; provided, however, (y) the sale of bad or doubtful accounts (provided that Borrower may merge into, consolidate with and/or acquire all or substantially all, net proceeds of such sales are promptly applied to reduce the outstanding principal balance of the equity Line of any other entity, so long as Credit) or (z) as permitted in the Security Agreements executed by Borrower and Subsidiary. "Permitted Transactions" means (i) no such single transaction, mergers with other entities whose businesses are substantially similar to that of Borrower's or series of related transactions, requires total consideration (inclusive of cash, the incurring of indebtedness and the assumption of liabilities, but exclusive of consideration paid Subsidiary's so long as Borrower or payable in the form of stock in Borrower--hereafter "Non-Stock Consideration") on the part of Borrower and/or Subsidiaries to exceed $10,000,000.00, (ii) all such transactions in each fiscal year do not require total Non--Stock Consideration on the part of Borrower and/or Subsidiaries to exceed $20,000,000.00; (iii) in the case of a merger or consolidation, Borrower Subsidiary is the surviving entity, (ivii) in the case of an acquisition by Borrower or Subsidiary of all or substantially all of the equity assets of any other entity, such other entity shall promptly execute and deliver to Bank Third Party Security Agreements, a UCC-1 Financing Statement and a Continuing Guaranties in the form executed by Subsidiariesentities or divisions thereof, (viii) prior to each such transaction, the acquisition by Borrower shall deliver to Bank a certificate showing the source or Subsidiary of funds for such transaction, provided that no more not less than an aggregate of $10,000,000.00 in proceeds 50.1% of the Line of Credit shall be used as Non-Stock Consideration during the term outstanding ownership interests in other entities, and, with respect to all of the Line of Creditforegoing, the aggregate consideration paid or payable (in whatever form, including, cash notes, stock in Borrower or Subsidiary or other property) by Borrower and (vi) Borrower is Subsidiary in compliance with the terms and covenants of this Agreement at any fiscal year does not exceed $5,000,000.00. At the time of the sales described in Section 5.5(a)(y) above Bank shall release in fact and following of record all of its security in the closing of each such transactionassets being sold.;

MERGER, CONSOLIDATION, TRANSFER OF ASSETS. Merge into, into or consolidate with or acquire any or all of the equity of any other entityentity (provided, except as set forth at however, that any Subsidiary may be merged or consolidated with Borrower or any Material Subsidiary if the end of this Section 5.3Borrower or such Material Subsidiary is the surviving corporation); make any substantial change in the nature of Borrower's ’s and its Material Subsidiaries’ respective and consolidated business as conducted as of the date hereof; acquire all or substantially all of the assets of any other entity; nor sell, lease, transfer or otherwise dispose of all or a substantial or material portion of Borrower's ’s or its Material Subsidiaries’ assets except (a) in the ordinary course of its business (including the sale or assignment of any Intellectual Property in the ordinary course of its business; provided), however(b) worn-out or depleted equipment, (c) in connection with Permitted Licenses, and (d) any other property of Borrower or its Material Subsidiaries provided that the amount of such sales, leases, transfers and dispositions (together with the value of any investments in Foreign Subsidiaries permitted under Section 5.6(d)) do not exceed, in the aggregate, fifteen percent (15%) of the total assets of Borrower and its Subsidiaries on a consolidated basis in any fiscal year. Notwithstanding the foregoing, Borrower may merge into, into or consolidate with and/or acquire all or substantially all, of the equity of any other entity, so long as (i) no such single transaction, entity or series of related transactions, requires total consideration (inclusive of cash, the incurring of indebtedness and the assumption of liabilities, but exclusive of consideration paid or payable in the form of stock in Borrower--hereafter "Non-Stock Consideration") on the part of Borrower and/or Subsidiaries to exceed $10,000,000.00, (ii) all such transactions in each fiscal year do not require total Non--Stock Consideration on the part of Borrower and/or Subsidiaries to exceed $20,000,000.00; (iii) in the case of a merger or consolidation, Borrower is the surviving entity, (iv) in the case of an acquisition of acquire all or substantially all of the equity assets of any other entity, such other entity shall promptly execute and deliver to Bank Third Party Security Agreements(each, a UCC-1 Financing Statement and a Continuing Guaranties in the form executed by Subsidiaries, (v) prior to each such transaction, Borrower shall deliver to Bank a certificate showing the source of funds for such transaction“Permitted Acquisition”), provided that no more than an aggregate such entity is in a similar line of $10,000,000.00 in proceeds of business as Borrower or any business substantially related thereto and the Line of Credit shall be used as Non-Stock Consideration during the term of the Line of Credit, and (vi) consideration paid by Borrower is either stock or cash in compliance an amount less than Fifty Million Dollars ($50,000,000) when combined with the terms and covenants of this Agreement at consideration paid for all other Permitted Acquisitions entered into after the time of and following the closing of each such transactionRestatement Date.;