Common use of Merger/Sale of Assets Clause in Contracts

Merger/Sale of Assets. (a) Neither Borrower nor any of its Subsidiaries shall merge or consolidate with or into (whether or not Borrower is the Surviving Person) any other Person and Borrower will not, and will not cause or permit any Subsidiary to, sell, convey, assign, transfer, lease, sublease, license, sublicense or otherwise dispose of (“Dispose of”) all or substantially all of Borrower’s and its Subsidiaries assets (determined on a consolidated basis for Borrower and its Subsidiaries) to any Person in a single transaction or series of related transactions; provided that nothing in this Section 9.02(a) shall prohibit (i) a Change of Control so long as Borrower complies with Section 3.02 in connection therewith, (ii) any merger or consolidation of any Subsidiary with or into any Person who is a Guarantor or Borrower (to the extent a Guarantor or Borrower, as applicable, is the Surviving Person) or thereupon becomes a Guarantor pursuant to Section 8.15, (iii) any Foreign Subsidiaries of Borrower Parties merging with any other Foreign Subsidiary; (iv) any Subsidiary of the Borrower may Dispose of all or substantially all of its assets to the Borrower or any Guarantor or, if it is a Foreign Subsidiary, any Foreign Subsidiary that is a Guarantor; and (v) any Subsidiary of the Borrower may dissolve, liquidate or wind up its affairs at any time so long as its immediate parent becomes the owner of its remaining assets. (b) Neither Borrower nor any of its Subsidiaries shall sell, assign, convey, transfer, lease, sublease, license, sublicense or otherwise dispose of (including by way of merger or consolidation) any right, title or interest in or to any of the Included Products, other than (A) pursuant to a Permitted Transfer, or (B) pursuant to a Change of Control so long as Borrower complies with Section 3.02 in connection therewith; provided, however, that, no Event of Default shall have occurred and be continuing immediately prior to any such Permitted Transfer or shall occur as a result thereof.

Merger/Sale of Assets. (a) Neither Borrower nor any of its Subsidiaries shall merge or consolidate with or into (whether or not Borrower is the Surviving Person) any other Person and Borrower will not, and will not cause or permit any Subsidiary to, sell, convey, assign, transfer, lease, sublease, license, sublicense or otherwise dispose of (“Dispose of”) all or substantially all of Borrower’s 's and its Subsidiaries assets (determined on a consolidated basis for Borrower and its Subsidiaries) to any Person in a single transaction or series of related transactions; provided that nothing in this Section 9.02(a) shall prohibit (i) a Change of Control so long as the Borrower complies with Section 3.02 in connection therewith, (ii) any merger or consolidation of any Subsidiary with or into any Person who is a Guarantor or the Borrower (to the extent a the Guarantor or Borrower, as applicable, is the Surviving Person) or thereupon becomes a Guarantor pursuant to Section 8.158.14, and (iii) any Foreign Subsidiaries of the Borrower Parties merging with any other Foreign Subsidiary; (iv) any Subsidiary of the Borrower may Dispose of all or substantially all of its assets to the Borrower or any Guarantor or, if it is a Foreign Subsidiary, any Foreign Subsidiary that is a Guarantor; and (v) any Subsidiary of the Borrower may dissolve, liquidate or wind up its affairs at any time so long as its immediate parent becomes the owner of its remaining assets. (b) Neither Borrower nor any of its Subsidiaries shall sell, assign, convey, transfer, lease, sublease, license, sublicense or otherwise dispose of (including by way of merger or consolidation) any right, title or interest in or to (i) prior to FDA Approval, any of its properties or assets and (ii) following FDA Approval, any of the Included Products, in each case under clause (i) or (ii), other than (A) pursuant to a Permitted Transfer, or (B) pursuant to a Change of Control so long as the Borrower complies with Section 3.02 in connection therewith; provided, however, that, no Event of Default shall have occurred and be continuing immediately prior to any such Permitted Transfer or shall occur as a result thereof.

Merger/Sale of Assets. (a) Neither Borrower nor any of its Subsidiaries shall not merge or consolidate with or into (whether or not Borrower is the Surviving Person) any other Person and Borrower will not, and will not cause or permit any Subsidiary to, sell, convey, assign, transfer, lease, sublease, license, sublicense lease or otherwise dispose of (“Dispose of”) all or substantially all of Borrower’s and its Subsidiaries assets (determined on a consolidated basis for Borrower and its Subsidiaries) to any Person in a single transaction or series of related transactions; provided that nothing in this Section 9.02(a, unless (1) shall prohibit either (iA) a Change of Control so long as Borrower complies with Section 3.02 in connection therewith, (ii) any merger or consolidation of any Subsidiary with or into any Person who is a Guarantor or Borrower (to the extent a Guarantor or Borrower, as applicable, is will be the Surviving PersonPerson or (B) the Surviving Person (if other than Borrower) will be an entity organized and validly existing under the laws of Delaware, and will, in any such case, expressly assume the due and punctual payment of the principal of, premium, if any, and interest on the Loan and the performance and observance of every covenant of the Loan Documents to be performed or thereupon becomes a Guarantor pursuant to Section 8.15, (iii) any Foreign Subsidiaries observed on the part of Borrower Parties merging with and shall use its commercially reasonable efforts to actively market and promote the LFRP and to seek out and exploit opportunities for entering into Future Licenses; and (2) immediately thereafter, on a pro forma basis after giving effect to such transaction (and treating any other Foreign Subsidiary; (iv) Indebtedness not previously an obligation of Borrower or any Subsidiary of Borrower in connection with or as a result of such transaction as having been incurred at the Borrower may Dispose time of all such transaction), no Default or substantially all Event of its assets to the Borrower or any Guarantor or, if it is a Foreign Subsidiary, any Foreign Subsidiary that is a Guarantor; Default will have occurred and (v) any Subsidiary of the Borrower may dissolve, liquidate or wind up its affairs at any time so long as its immediate parent becomes the owner of its remaining assetsbe continuing. (b) Neither Borrower nor any of its Subsidiaries shall directly or indirectly sell, assign, convey, transfer, lease, sublease, license, sublicense transfer or otherwise dispose of all or any part of its assets consisting of or used in the LFRP Technology or the LFRP, except (including by way i) licenses of merger intellectual property rights of Borrower or consolidation) any right, title or interest in or to any of its Subsidiaries in connection with services provided by Borrower or such Subsidiary for fair value in an arm’s-length transaction in the Included Productsordinary course of its business; (ii) sales of equipment not needed for Borrower’s business to one or more third parties for fair value in an arm’s-length transaction; provided any assets received in return from such transaction are subject to the Lien created by the Security Agreement; (iii) sales of equipment to one or more third parties for fair value in an arm’s-length transaction, the proceeds of which are used to purchase replacement or other than assets useful in Borrower’s LFRP business within [*****] of such sale; (Aiv) pursuant other sales, leases, licenses, transfers or other dispositions in an aggregate amount not to a exceed [*****] during the term of this Agreement and (v) Permitted Transfer, or (B) pursuant to a Change of Control so long as Borrower complies Collateralizations; provided the proceeds resulting therefrom are applied in accordance with Section 3.02 3.02(c) and that any assets received in connection therewith; provided, however, that, no Event of Default shall have occurred and be continuing immediately prior return from such transaction are subject to any such Permitted Transfer or shall occur as a result thereofthe Lien created by the Security Agreement.

Merger/Sale of Assets. (a) Neither The Borrower nor will not, and it will not permit any of its Subsidiaries shall to, merge or consolidate with or into (whether any other Person, or not Borrower is the Surviving Person) permit any other Person and Borrower will notto merge into or consolidate with it, and will not cause or permit any Subsidiary to, sell, convey, assign, transfer, lease, sublease, license, sublicense lease or otherwise dispose of (“Dispose of”in one transaction or in a series of transactions) all or substantially any Substantial Portion of its assets, or all or any Substantial Portion of Borrower’s and its Subsidiaries assets the stock or other ownership interest in any of the Owned Persons owned by it (determined on a consolidated basis for Borrower and its Subsidiaries) to any Person in a single transaction each case, whether now owned or series of related transactions; provided that nothing in this Section 9.02(a) shall prohibit hereafter acquired), except: (i) a Change of Control so long as The Borrower complies may merge or consolidate with Section 3.02 in connection therewithany other Person provided that (A) the Borrower is the surviving entity, and (iiB) both before and after giving effect to any such merger or consolidation of any Subsidiary with no Default or into any Person who is a Guarantor or Borrower (to the extent a Guarantor or Borrower, as applicable, is the Surviving Person) or thereupon becomes a Guarantor pursuant to Section 8.15, (iii) any Foreign Subsidiaries of Borrower Parties merging with any other Foreign Subsidiary; (iv) any Subsidiary of the Borrower may Dispose of all or substantially all of its assets to the Borrower or any Guarantor or, if it is a Foreign Subsidiary, any Foreign Subsidiary that is a Guarantor; and (v) any Subsidiary of the Borrower may dissolve, liquidate or wind up its affairs at any time so long as its immediate parent becomes the owner of its remaining assets. (b) Neither Borrower nor any of its Subsidiaries shall sell, assign, convey, transfer, lease, sublease, license, sublicense or otherwise dispose of (including by way of merger or consolidation) any right, title or interest in or to any of the Included Products, other than (A) pursuant to a Permitted Transfer, or (B) pursuant to a Change of Control so long as Borrower complies with Section 3.02 in connection therewith; provided, however, that, no Event of Unmatured Default shall have occurred and be continuing immediately prior continuing. (ii) A Subsidiary of the Borrower may merge into the Borrower or another Subsidiary of the Borrower. (b) The Borrower will use its best efforts to prevent each Owned Person which is not a Subsidiary of the Borrower from selling, transferring, leasing or otherwise disposing of (in one transaction or in a series of transactions) any of the assets (in each case, whether now owned or hereafter acquired) of such Owned person or any of its Subsidiaries, except: (i) The Borrower will not have any obligation to prevent any such Permitted Transfer Owned Person or shall occur as any of its Subsidiaries from selling inventory in the ordinary course of business. (ii) The Borrower will not have any obligation to prevent any such Owned Person or any of its Subsidiaries from selling, transferring, leasing or otherwise disposing of any of its Property that, together with all other Property of such Owned Person or any of its Subsidiaries previously sold, transferred, leased or otherwise disposed of (other than sales of inventory in the ordinary course of business) during the twelve-month period ending with the month in which any such sale, transfer, lease or disposition occurs, do not constitute a result thereofSubstantial Portion of the Property of such Owned Person and its Subsidiaries.

Merger/Sale of Assets. (a) Neither Borrower nor any of its Subsidiaries shall merge or consolidate with or into (whether or not Borrower is the Surviving Person) any other Person and Borrower will not, and will not cause or permit any Subsidiary to, sell, convey, assign, transfer, lease, sublease, license, sublicense or otherwise dispose of (“Dispose of”) all or substantially all of Borrower’s and its Subsidiaries assets (determined on a consolidated basis for Borrower and its Subsidiaries) to any Person in a single transaction or series of related transactions; provided that nothing in this Section 9.02(a) shall prohibit (i) a Change of Control so long as the Borrower complies with Section 3.02 in connection therewith, (ii) any merger or consolidation of any Subsidiary with or into any Person who is a Guarantor or the Borrower (to the extent a the Guarantor or Borrower, as applicable, is the Surviving Person) or thereupon becomes a Guarantor pursuant to Section 8.158.14, and (iii) any Foreign Subsidiaries of the Borrower Parties merging with any other Foreign Subsidiary; (iv) any Subsidiary of the Borrower may Dispose of all or substantially all of its assets to the Borrower or any Guarantor or, if it is a Foreign Subsidiary, any Foreign Subsidiary that is a Guarantor; and (v) any Subsidiary of the Borrower may dissolve, liquidate or wind up its affairs at any time so long as its immediate parent becomes the owner of its remaining assets. (b) Neither Borrower nor any of its Subsidiaries shall sell, assign, convey, transfer, lease, sublease, license, sublicense or otherwise dispose of (including by way of merger or consolidation) any right, title or interest in or to any of the Included Products, in each case under clause (i) or (ii), other than (A) pursuant to a Permitted Transfer, or (B) pursuant to a Change of Control so long as the Borrower complies with Section 3.02 in connection therewith; provided, however, that, no Event of Default shall have occurred and be continuing immediately prior to any such Permitted Transfer or shall occur as a result thereof.

Merger/Sale of Assets. (a) Neither The Borrower will not, nor will it permit any of its Subsidiaries shall merge to, enter into any merger (other than (i) mergers in which the Borrower or consolidate with or into (whether or not Borrower such Subsidiary is the Surviving Personsurvivor, (ii) mergers of Subsidiaries (but not the Borrower) as part of transactions that are not prohibited by this Agreement provided that following such merger the target entity becomes a Wholly-Owned Subsidiary of Borrower and (iii) mergers of Subsidiaries permitted by the proviso below), consolidation or reorganization or transfer or otherwise dispose of all or substantially all of their Properties, except for (i) such transactions that occur between Wholly-Owned Subsidiaries or between Borrower and a Wholly-Owned Subsidiary, (ii) mergers solely to change the jurisdiction of organization of a Subsidiary, and (iii) as otherwise approved in advance by the Required Lenders, provided, however, notwithstanding the foregoing, transfers by Borrower and/or any of its Subsidiaries of all or substantially all of their respective Properties and mergers of any Subsidiary with and into any other Person and shall be permitted only so long as after giving effect to any such transfer or merger, Borrower remains in compliance with the Tangible Net Worth Covenant set forth herein. The Borrower will not reorganize itself under the laws of any jurisdiction other than the United States of America or any state thereof. (b) Without the prior written consent of the Required Lenders, the Borrower will not, and will not cause or permit any Subsidiary of its Subsidiaries to, sell, convey, assign, transfer, lease, sublease, license, sublicense transfer or otherwise dispose of any of their respective Properties or Projects if a Default has occurred and is continuing. (“Dispose of”c) all The Borrower shall deliver to the Administrative Agent and the Lenders prior written notice of the sale, transfer or substantially all other disposition of Borrower’s and its Subsidiaries assets (determined on a consolidated basis for any Property owned by Borrower and its Subsidiaries) to any Person in a single transaction for consideration in excess of $400,000,000. In addition, simultaneously with delivery of any such notice, the Borrower shall deliver to the Administrative Agent a certificate of the Borrower’s chief financial officer or series chief accounting officer certifying that the Borrower is in compliance in all material respects with this Agreement and the other Loan Documents and would be in compliance with the Tangible Net Worth Covenant set forth in Section 6.6 using the most recent quarterly financial statements then available and after giving effect to the proposed transaction (or will be after making the required prepayments described in the next paragraph), along with a certification that the Borrower has no knowledge of related transactions; provided any facts or circumstances that nothing would make any such information inaccurate, incomplete or otherwise misleading in this Section 9.02(a) any material respect. To the extent such proposed transaction would result in a failure to comply with the Tangible Net Worth Covenant set forth herein, the Borrower shall prohibit apply the proceeds of such transaction (i) a Change of Control so long together with such additional amounts as Borrower complies with Section 3.02 may be required), to prepay the Indebtedness in connection therewith, (ii) any merger an amount equal to that which would be required to reduce the Obligations or consolidation other Indebtedness of any Subsidiary so that Borrower will be in compliance with or into any Person who is a Guarantor or Borrower (the Tangible Net Worth Covenant upon the consummation of the contemplated transaction. Amounts prepaid hereunder shall be applied to the extent a Guarantor or Borrower, as applicable, is the Surviving Person) or thereupon becomes a Guarantor pursuant to Section 8.15, (iii) any Foreign Subsidiaries of Borrower Parties merging with any other Foreign Subsidiary; (iv) any Subsidiary of the Borrower may Dispose of all or substantially all of its assets to the Borrower or any Guarantor or, if it is a Foreign Subsidiary, any Foreign Subsidiary that is a Guarantor; and (v) any Subsidiary of the Borrower may dissolve, liquidate or wind up its affairs at any time so long as its immediate parent becomes the owner of its remaining assets. (b) Neither Borrower nor any of its Subsidiaries shall sell, assign, convey, transfer, lease, sublease, license, sublicense or otherwise dispose of (including by way of merger or consolidation) any right, title or interest Obligations in or to any of the Included Products, other than (A) pursuant to a Permitted Transfer, or (B) pursuant to a Change of Control so long as Borrower complies accordance with Section 3.02 in connection therewith; provided, however, that, no Event of Default shall have occurred and be continuing immediately prior to any such Permitted Transfer or shall occur as a result thereof2.8.

Merger/Sale of Assets. (a) Neither Borrower nor any of its Subsidiaries shall not merge or consolidate with or into (whether or not Borrower is the Surviving Person) any other Person and Borrower will not, and will not cause or permit any Subsidiary to, sell, convey, assign, transfer, lease, sublease, license, sublicense or otherwise dispose of (“Dispose of”) all or substantially all of Borrower’s and its Subsidiaries assets (determined on a consolidated basis for Borrower and its Subsidiaries) to any Person in a single transaction or series of related transactions; provided that nothing in this Section 9.02(a) shall prohibit (i) a Change of Control so long as Borrower complies with Section 3.02 in connection therewith, (ii) any merger or consolidation of any Subsidiary with or into any Person who is a Guarantor or Borrower (to the extent a Guarantor or Borrower, as applicable, is the Surviving Person) or thereupon becomes a Guarantor pursuant to Section 8.15, (iii) any Foreign Subsidiaries of Borrower Parties merging with any other Foreign Subsidiary; (iv) any Subsidiary of the Borrower may Dispose of all or substantially all of its assets to the Borrower or any Guarantor or, if it is a Foreign Subsidiary, any Foreign Subsidiary that is a Guarantor; and (v) any Subsidiary of the Borrower may dissolve, liquidate or wind up its affairs at any time so long as its immediate parent becomes the owner of its remaining assetsControl. (b) Neither Borrower nor any of its Subsidiaries shall not sell, assign, convey, transfer, lease, sublease, license, sublicense or otherwise dispose of (including by way of merger or consolidation) any right, title or interest in or to any of to, the License Agreement or the Included ProductsProduct Payments, other than (A) pursuant to a Permitted TransferLiens, or (B) pursuant to a Change of Control so long as Control. (c) Notwithstanding clauses (a) and (b) above, in the event the Subsequent Tranche Loan has not been made on or prior to the Subsequent Tranche Commitment Termination Date, Borrower complies shall be permitted to sell, assign, convey, transfer, lease, sublease, license, sublicense or otherwise dispose of the Transferred Assets relating to the Commercialization and Exploitation of ADS-5102 (“5102 Assets”) to a bona-fide Third Party, provided that the Borrower shall apply the proceeds of such disposition of 5102 Assets to prepay the Loans, together with accrued and unpaid interest thereon, in accordance with Section 3.02 3.02(b) and shall pay an additional amount equal to the amount by which $70,000,000 exceeds all payments of principal, interest and premium (if any) made in connection therewith; providedrespect of the Loans, howeverprovided that if such proceeds and funds otherwise available to the Borrower are insufficient to pay such amounts to Lender, thatall payments received in respect of the Royalty Interest (without limitation thereof to the Included Royalty Interest), no Event of Default shall have occurred and be continuing immediately prior to disbursement of any amounts therefrom to Borrower or its assigns (other than the Lender) under Article IV, shall be applied to the payment of such Permitted Transfer or shall occur as a result thereofamounts to Lender until payment thereof in full. [ * ] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 24B-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.

Merger/Sale of Assets. (a) Neither The Borrower will not, nor will it permit any of its Subsidiaries shall merge or consolidate with or to, enter into any merger (whether or not Borrower other than mergers in which such entity is the Surviving Personsurvivor and mergers of Subsidiaries (but not the Borrower) any other Person and Borrower will notas part of transactions that are Permitted Acquisitions provided that following such merger the target entity becomes a Wholly-Owned Subsidiary of Borrower), and will not cause consolidation, reorganization or permit any Subsidiary to, sell, convey, assign, transfer, lease, sublease, license, sublicense liquidation or transfer or otherwise dispose of (“Dispose of”) all or substantially all a Substantial Portion of Borrower’s and its their Properties, except for (a) such transactions that occur between Wholly-Owned Subsidiaries assets (determined on a consolidated basis for or between Borrower and its Subsidiaries) to any Person in a single transaction or series of related transactions; provided that nothing in this Section 9.02(a) shall prohibit (i) a Change of Control so long as Borrower complies with Section 3.02 in connection therewithWholly-Owned Subsidiary, (iib) mergers solely to change the jurisdiction of organization of a Subsidiary Guarantor, and (c) as otherwise approved in advance by the Required Lenders. Notwithstanding the foregoing, the Borrower shall not, directly or indirectly, permit any merger or consolidation of any direct or indirect owner of any Subject Property or any transfer of a Subject Property unless (i) such transaction satisfies the requirements of Section 2A.3, and (ii) if in connection with such transaction additional Collateral is proposed to be pledged to Administrative Agent or if Administrative Agent deems it reasonably necessary or desirable in order to maintain, obtain and/or perfect a first priority security interest in, or lien on, the Collateral affected by such transaction which is intended to remain Collateral following such transaction, Borrower and any applicable Subsidiary with or into any Person who is a Guarantor or of Borrower (shall have executed and delivered to the extent a Guarantor Administrative Agent all instruments, documents, or Borroweragreements as Administrative Agent shall deem reasonably necessary, including an Assignment of Interests, an Account Agreement, Instruction Letter, Subsidiary Guaranty, Acknowledgments and Uniform Commercial Code financing statements and membership, partnership and stock certificates and blank transfer powers, as applicable, is the Surviving Person) Administrative Agent shall deem reasonably necessary or thereupon becomes desirable to continue and/or obtain and perfect a Guarantor pursuant to Section 8.15, (iii) any Foreign Subsidiaries of Borrower Parties merging with any other Foreign Subsidiary; (iv) any Subsidiary of the Borrower may Dispose of all or substantially all of its assets to the Borrower or any Guarantor or, if it is a Foreign Subsidiary, any Foreign Subsidiary that is a Guarantor; and (v) any Subsidiary of the Borrower may dissolve, liquidate or wind up its affairs at any time so long as its immediate parent becomes the owner of its remaining assets. (b) Neither Borrower nor any of its Subsidiaries shall sell, assign, convey, transfer, lease, sublease, license, sublicense or otherwise dispose of (including by way of merger or consolidation) any right, title or first priority security interest in or to any of the Included Products, other than (A) pursuant to a Permitted Transferin, or (B) pursuant to a Change of Control so long as Borrower complies with Section 3.02 in connection therewith; providedlien on, however, that, no Event of Default shall have occurred and be continuing immediately prior to any such Permitted Transfer or shall occur as a result thereofCollateral.