Common use of Mergers, Sales, Acquisitions, Subsidiaries and Other Transactions Outside the Ordinary Course of Business Clause in Contracts

Mergers, Sales, Acquisitions, Subsidiaries and Other Transactions Outside the Ordinary Course of Business. Borrower shall not (a) form any Subsidiaries except as permitted by Section 11.14; (b) enter into any merger or consolidation; (c) change the state of Borrower’s organization or enter into any transaction which has the effect of changing Borrower’s state of organization; (d) modify its organizational documents in a manner adverse to Lender; (e) if Borrower is a limited liability company, divide into multiple limited liability companies; (f) sell, lease or otherwise dispose of any of its assets other than in the ordinary course of business; (g) purchase the stock, other equity interests or all or a material portion of the assets of any Person or division of such Person except as permitted by Section 11.14; (h) enter into any joint ventures or partnerships with any other Person except as permitted by Section 11.14; or (i) enter into any other transaction outside the ordinary course of Borrower’s business, including any purchase, redemption or retirement of any shares of any class of its stock or any other equity interest; provided, however, Borrower may enter any of such transactions in the ordinary course of business in connection with the granting of any routine and customary executive and employee compensation so long as such Transactions are funded with Equity Proceeds; provided, further, that nothing in this Agreement limits Borrower’s right and ability to issue shares of its common stock, or securities convertible into shares of its common stock, whether in a private placement of its shares or in a registered issuance pursuant to a registration statement on Form S-0, X-0, X-0 or S-8 so long as such shares do not constitute Disqualified Equity Interests and so long as the proceeds of such issuances are not used in violation of any of the terms or provisions of this Agreement.

Mergers, Sales, Acquisitions, Subsidiaries and Other Transactions Outside the Ordinary Course of Business. No Borrower shall not (a) form any Subsidiaries except as permitted by Section 11.14; (bi) enter into any merger or consolidation; (cii) change the its state of Borrower’s organization or enter into any transaction which has the effect of changing Borrower’s its state of organization; (d) modify its organizational documents in a manner adverse to Lender; (e) if Borrower is a limited liability company, divide into multiple limited liability companies; (fiii) sell, lease or otherwise dispose of any of its assets other than in the ordinary course of business, provided that AMCON may sell and dispose of assets with a value of less than $250,000.00 in any transaction, or series of related transactions, provided that the proceeds thereof, net of reasonable out of pocket disposition expenses, are applied to the Liabilities; (giv) purchase the stock, other equity interests or all or a material portion of the assets of any Person or division of such Person except as permitted by Section 11.14; (h) enter into any joint ventures or partnerships with any other Person except as permitted by Section 11.14Person; or (iv) enter into any other transaction outside the ordinary course of such Borrower’s business, including including, without limitation, any purchase, redemption or retirement issuance of any shares of of, or warrants or other rights to receive or purchase any shares of, any class of its stock or any other equity interestinterest other than such issuances pursuant to the terms of such Borrower’s stock option plan and the 2007 Omnibus Incentive Plan. Notwithstanding anything in this Agreement to the contrary, no Borrower shall redeem, retire, purchase or otherwise acquire any shares of any class or series of its stock or any other equity interest (including, without limitation, any shares of AMCON’s Series A Convertible Preferred Stock or Series B Convertible Preferred Stock); provided, however, Borrower that AMCON may enter (i) redeem odd lot stock in an aggregate amount not to exceed $50,000.00 in any of such transactions calendar year and other stock up to $100,000.00 in the ordinary course of business in connection with the granting of aggregate during any routine and customary executive and employee compensation so long as such Transactions are funded with Equity Proceeds; providedcalendar year, further, that nothing in this Agreement limits Borrower’s right and ability to issue (ii) purchase shares of its common stock, or securities convertible into shares of its common stock, whether in a private placement of its shares or in a registered issuance pursuant to a registration statement on Form S-0, X-0, X-0 or S-8 stock only so long as (I) no Event of Default is in existence at the time of, or would occur after giving effect to, any such purchase, and (II) Borrowers shall have Average Excess Availability of not less than Ten Million Dollars ($10,000,000.00) for the thirty (30) day period immediately prior to such purchase and after giving effect to any such purchase and (iii) redeem shares do not constitute Disqualified Equity Interests of AMCON’s Series A and Series B Convertible Preferred Stock only so long as (I) no Event of Default is in existence at the proceeds time of, or would occur after giving effect to, any such redemption, and (II) Borrowers shall have Average Excess Availability of not less than Five Million Dollars ($5,000,000.00) for the thirty (30) day period immediately prior to such issuances are not used in violation redemption and after giving effect to any such redemption. No Borrower shall form any Subsidiaries or enter into any joint ventures or partnerships with any other Person. For purposes herein, “Average Excess Availability” shall be determined by dividing (i) the total of any of the terms or provisions of this Agreementeach day’s Excess Availability for such thirty (30) day period by (ii) thirty (30).

Mergers, Sales, Acquisitions, Subsidiaries and Other Transactions Outside the Ordinary Course of Business. No Borrower shall not (a) form any Subsidiaries except as permitted by Section 11.14; (bi) enter into any merger or consolidation; (cii) change the its state of Borrower’s organization or enter into any transaction which has the effect of changing Borrower’s its state of organization; organization (d) modify its organizational documents in a manner adverse to Lender; (e) if Borrower is a limited liability company, divide into multiple limited liability companies; (fiii) sell, lease lease, transfer or otherwise dispose of any of its assets other than in the ordinary course of business, provided that AMCON may sell and dispose of assets with a value of less than $250,000.00 in any transaction, or series of related transactions, provided that the proceeds thereof, net of reasonable out of pocket disposition expenses, are applied to the Liabilities; (giv) purchase the stock, other equity interests or all or a material portion of the assets of any Person or division of such Person except as permitted by Section 11.14; (h) enter into any joint ventures or partnerships with any other Person except as permitted by Section 11.14Person; or (iv) enter into any other transaction outside the ordinary course of such Borrower’s business, including including, without limitation, any purchase, redemption or retirement issuance of any shares of of, or warrants or other rights to receive or purchase any shares of, any class of its stock or any other equity interestinterest other than such issuances pursuant to the terms of such Borrower’s stock option plan and the 2007 Omnibus Incentive Plan. Notwithstanding anything in this Agreement to the contrary, no Borrower shall redeem, retire, purchase or otherwise acquire any shares of any class or series of its stock or any other equity interest (including, without limitation, any shares of AMCON’s Series A Convertible Preferred Stock or Series B Convertible Preferred Stock); provided, however, Borrower that AMCON (i) may enter redeem odd lot stock in an aggregate amount not to exceed $50,000.00 in any of such transactions calendar year and other stock up to $100,000.00 in the ordinary course of business in connection with the granting of aggregate during any routine and customary executive and employee compensation so long as such Transactions are funded with Equity Proceeds; providedcalendar year, further, that nothing in this Agreement limits Borrower’s right and ability to issue (ii) purchase shares of its common stock, or securities convertible into shares of its common stock, whether in a private placement of its shares or in a registered issuance pursuant to a registration statement on Form S-0, X-0, X-0 or S-8 stock only so long as (I) no Event of Default is in existence at the time of, or would occur after giving effect to, any such purchase, and (II) Borrowers shall have Average Excess Availability of not less than Ten Million Dollars ($10,000,000.00) for the thirty (30) day period immediately prior to such purchase and after giving effect to any such purchase and (iii) redeem shares do not constitute Disqualified Equity Interests of AMCON’s Series A and Series B Convertible Preferred Stock only so long as (I) no Event of Default is in existence at the proceeds time of, or would occur after giving effect to, any such redemption, and (II) Borrowers shall have Average Excess Availability of not less than Five Million Dollars ($5,000,000.00) for the thirty (30) day period immediately prior to such issuances redemption and after giving effect to any such redemption. No Borrower shall form any Subsidiaries or enter into any joint ventures or partnerships with any other Person. For purposes herein, “Average Excess Availability” shall be determined by dividing (i) the total of each day’s Excess Availability for such thirty (30) day period by (ii) thirty (30). In addition to the foregoing, Borrowers may enter into Acquisitions solely to the extent the following conditions are not used in violation of any of the terms or provisions of this Agreement.satisfied:

Mergers, Sales, Acquisitions, Subsidiaries and Other Transactions Outside the Ordinary Course of Business. Borrower shall not (a) form any Subsidiaries except as permitted by Section 11.14; (bi) enter into any merger or consolidationconsolidation (except that Holdings or any Subsidiary which is solvent may merge with Borrower, so long as Borrower is the surviving entity of such merger); (cii) change the state of Borrower’s organization or enter into any transaction which has the effect of changing Borrower’s state of organization; (d) modify its organizational documents in a manner adverse to Lender; (e) if Borrower is a limited liability company, divide into multiple limited liability companies; (fiii) sell, lease or otherwise dispose of any of its assets the Collateral other than in the ordinary course of business; or (giv) purchase the stock, other equity interests or all or a material portion of the assets of any Person or division of such Person except as otherwise permitted by Section 11.14; (h) enter into any joint ventures or partnerships with any other Person except as permitted by Section 11.14; or (i) herein enter into any other transaction outside the ordinary course of Borrower’s business, including including, without limitation, any purchase, redemption or retirement of any shares of any class of its stock or any other equity interest, and any issuance of any shares of, or warrants or other rights to receive or purchase any shares of, any class of its stock or any other equity interest; provided, howeverprovided that so long as no Event of Default would occur as a result thereof, Borrower may enter issue shares of stock or other rights to receive or purchase any of such transactions in the ordinary course of business in connection with the granting shares of any routine and customary executive and employee compensation class of its stock; provided further, that (x) so long as no Event of Default has occurred and is continuing or would occur as a result thereof and (y) such Transactions are funded redemption does not violate any applicable laws, Borrower may redeem its Series A Preferred Stock on April 30, 2005. Borrower shall not form any Subsidiaries or enter into any joint ventures or partnerships with Equity Proceeds; providedany other Person unless such Subsidiary, furtherjoint venture or partnership executes and delivers to Lender a Continuing Unconditional Guaranty, that nothing in this Agreement limits Borrower’s right Security Agreement, Uniform Commercial Code Financing Statement and ability to issue shares of its common stock, or securities convertible into shares of its common stock, whether in such other documents as Lender may reasonably request granting a private placement of its shares or in a registered issuance pursuant to a registration statement lien on Form S-0, X-0, X-0 or S-8 so long as such shares do not constitute Disqualified Equity Interests and so long as the proceeds same assets of such issuances are not used Person as is described in violation of any of the terms or provisions of this AgreementSection 5 hereof.

Mergers, Sales, Acquisitions, Subsidiaries and Other Transactions Outside the Ordinary Course of Business. Borrower Loan Parties shall not, and shall not permit any Subsidiary to (a) form any Subsidiaries except as permitted by Section 11.14; (bi) enter into any merger or consolidationconsolidation other than (A) any merger of any Loan Party (other than Xxxxxx Products Delaware) with and into any other Loan Party (other than Xxxxxx Products Delaware); provided that, if such transaction involves a Borrower, the Borrower is the surviving entity; and provided further that, no such transaction shall involve an Excluded Subsidiary, and (B) any merger of any Subsidiary that is not a Loan Party with and into any other Subsidiary that is not a Loan Party; provided that, no such transaction shall involve an Excluded Subsidiary; (cii) other than in accordance with Section 12.2.4 hereof, change the state of Borrower’s its organization or enter into any transaction which has the effect of changing Borrower’s its state of organization; (d) modify its organizational documents in a manner adverse to Lender; (e) if Borrower is a limited liability company, divide into multiple limited liability companies; (fiii) sell, lease or otherwise dispose of any of its assets assets, including any disposition as part of any sale-leaseback transactions, other than (A) any sale or other disposition of inventory in the ordinary course of business, (B) any sale or other disposition of obsolete, worn-out or excess assets (other than Accounts or Inventory), (C) the sale of investments which are cash equivalents permitted by this Agreement in the ordinary course of business, (D) any sale or other disposition of assets by Loan Parties and their Subsidiaries in an amount not to exceed $1,000,000 in the aggregate in any Fiscal Year, (E) any sale-leaseback transaction for which any Loan Party or any Subsidiary has obtained the prior written consent of Lender and (F) the Permitted Intercompany Transfers; provided that, in each case the proceeds of such sale or other disposition are applied to the Obligations as required by Section 2.6.5 hereof; (giv) purchase the stock, other equity interests or all or a material portion of the assets of any Person or division of such Person except as other than any merger or consolidation permitted by Section 11.14in clause (i) above; or (hv) enter into any joint ventures or partnerships with any other Person except as permitted by Section 11.14; or (i) enter into any other transaction outside for the ordinary course of Borrower’s business, including any purchase, redemption or retirement of any shares of any class of its stock or any other equity interest; provided, however, Borrower may enter and any of such transactions in the ordinary course of business in connection with the granting issuance of any routine and customary executive and employee compensation so long as such Transactions are funded with Equity Proceeds; providedshares of, furtheror warrants or other rights to receive or purchase any shares of, that nothing in this Agreement limits Borrower’s right and ability to issue shares any class of its common stock, stock or securities convertible into shares of its common stock, whether in a private placement of its shares or in a registered issuance pursuant to a registration statement on Form S-0, X-0, X-0 or S-8 so long as such shares do not constitute Disqualified Equity Interests and so long as any other equity interest other than the proceeds of such issuances are not used in violation voluntary dissolution of any of the terms Excluded Subsidiary in accordance with Section 13.15 below. No Loan Party shall, nor shall it permit any Subsidiary to, form any Subsidiaries or provisions of this Agreemententer into any joint ventures or partnerships with any other Person.