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 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 any other entity or acquire all or substantially all of the equity assets of any other entity, so long as entity (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 Agreementseach, 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.

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 Credit) or (z) as permitted in the Security Agreements executed by Borrower and Subsidiary. “Permitted Transactions” means (i) mergers with other entity, entities whose businesses are substantially similar to that of Borrower’s or Subsidiary’s so long as (i) no such single transaction, Borrower 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 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 5.35.4; 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 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 -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 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, into or 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 hereofClosing Date; acquire all or substantially all of the assets of any other entityentity other than a Subsidiary; 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; providedbusiness or to one of its Subsidiaries that is a Borrower or Guarantor hereunder. Notwithstanding the foregoing, however(a) the sale, that lease or transfer of Borrower’s assets in an amount of less than Five Million Dollars ($5,000,000) in the aggregate during the term of this Agreement shall not be considered a substantial or material portion of its assets, (b) the sale, transfer or liquidation of textbook inventory is permitted hereunder, and (c) so long as an Event of Default has not occurred and has not been continuing, and Borrower may is in proforma compliance with the financial conditions set forth in Section 4.9 hereof both before and after giving effect thereto, Borrower shall be permitted to merge into, into or consolidate with and/or any other entity or acquire all or substantially all of the equity assets of any other entityentity (each, so long as a “Permitted Acquisition” and collectively, “Permitted Acquisitions”), provided that (i) such entity is in a similar line of business as Borrower or is a business substantially related thereto, (ii) Borrower is the surviving entity and (iii) for any Permitted Acquisition valued in excess of Five Million Dollars ($5,000,000), no Event of Default has occurred and is continuing, and Borrower has provided evidence of proforma compliance with the financial conditions set forth in Section 4.9 hereof both before and after giving effect thereto, such single transactionevidence in the form of Exhibit A attached hereto; notwithstanding the foregoing, or series for purposes of related transactions, requires total consideration (inclusive of cashdetermining proforma compliance with Section 4.9, the incurring of indebtedness and the assumption of liabilities, but exclusive of aggregate 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 respect of any Permitted Acquisition shall include the amount of any earn out or other entity, contingent obligations due in connection with 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 transactionPermitted Acquisition.

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 Credit) or (z) as permitted in the Security Agreements executed by Borrower and Subsidiary. "Permitted Transactions" means (i) mergers with other entity, entities whose businesses are substantially similar to that of Borrower's or Subsidiary's so long as (i) no such single transaction, Borrower 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 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.