Common use of Mergers, Acquisitions, Etc Clause in Contracts

Mergers, Acquisitions, Etc. None of the Company or any of the Company’s Subsidiaries shall amalgamate or consolidate with or merge into any other Person or permit any other Person to amalgamate or merge into them, acquire any Person as a new Subsidiary or acquire all or substantially all of the assets or line of business or division of any other Person, except for the following: (a) the Company and the Company’s Subsidiaries may amalgamate or merge with each other and with any other Person permitted to be acquired as a new Subsidiary under clause (b) below; provided, that, (i)(A) in any such amalgamation or merger involving the Company, the Company is the surviving Person, (B) [reserved] and (C) in any such amalgamation or merger involving a Subsidiary Guarantor, the surviving Person becomes a Subsidiary Guarantor by executing and delivering such documents of assumption, and related certificates and legal opinions as the Administrative Agent may reasonably request, and (ii) in each case, no Event of Default has occurred and is continuing on the date of, or will result after giving effect to, any such amalgamation or merger; (b) the Company and the Company’s Subsidiaries may acquire any Person as a new Subsidiary or all or substantially all of the assets of any Person or line of business or division of any Person; provided, that: (i) no Event of Default has occurred and is continuing on the date of, or will result after giving effect to, any such acquisition; (ii) such Person (or line or division) is not primarily engaged in any business substantially different from (A) the present business of the Company or any Subsidiary (other than any such acquired Subsidiary) or (B) any business reasonably related or ancillary thereto; and (iii) in the case of an acquisition of a Person as a new Subsidiary, the Borrower or the Company’s Subsidiaries possess the power to direct or cause the direction of the management and policies of such Person; and (c) any of the Company’s Subsidiaries may amalgamate or consolidate with or merge into any other Person or permit any other Person to merge into them in connection with a sale, transfer or other disposition of assets otherwise permitted pursuant to this Agreement or in connection with a joint venture investment otherwise permitted pursuant to this Agreement; provided, that, to the extent any Loan Party is a party to any such joint venture, such Loan Party shall be the surviving entity.

Mergers, Acquisitions, Etc. None of the Company Borrowers or any of the CompanyFIL’s Subsidiaries shall amalgamate or consolidate with or merge into any other Person or permit any other Person to amalgamate or merge into them, acquire any Person as a new Subsidiary or acquire all or substantially all of the assets or line of business or division of any other Person, except for the following: (a) the Company The Borrowers and the CompanyFIL’s Subsidiaries may amalgamate or merge with each other and with any other Person permitted to be acquired as a new Subsidiary under clause (b) below; provided, that, provided that (i)(Ai) (A) in any such amalgamation or merger involving the Companyany Borrower, the Company such Borrower is the surviving Person, Person and (B) [reserved] and (C) in any such amalgamation or merger involving a Subsidiary Guarantor, the surviving Person is an Eligible Material Subsidiary and becomes a Subsidiary Guarantor by executing and delivering such documents of assumption, and related certificates and legal opinions as the Administrative Agent may reasonably request, and (ii) in each case, no Event of Default has occurred and is continuing on the date of, or will result after giving effect to, any such amalgamation or merger; (b) the Company The Borrowers and the CompanyFIL’s Subsidiaries may acquire any Person as a new Subsidiary or all or substantially all of the assets of any Person or line of business or division of any Person; provided, provided that: (i) no Event of No Default has occurred and is continuing on the date of, or will result after giving effect to, any such acquisition; (ii) such Such Person (or line or division) is not primarily engaged in any business substantially different from (A) the present business of the Company or any Subsidiary (other than any such acquired Subsidiary) or (B) any business reasonably related or ancillary thereto; and (iii) in In the case of an acquisition of a Person as a new Subsidiary, the Borrower Borrowers or the CompanyFIL’s Subsidiaries possess the power to direct or cause the direction of the management and policies of such Person; and (c) any Any of the CompanyFIL’s Subsidiaries may amalgamate or consolidate with or merge into any other Person or permit any other Person to merge into them in connection with a sale, transfer or other disposition of assets otherwise permitted pursuant to this Agreement under Section 7.03 or in connection with a joint venture investment otherwise Investment permitted pursuant to this Agreement; providedunder Section 7.05, that, provided that to the extent any Loan Party is a party to any such joint venture, such Loan Party shall be the surviving entity.

Mergers, Acquisitions, Etc. None of the Company Borrowers or any of the CompanyFIL’s Subsidiaries shall amalgamate or consolidate with or merge into any other Person or permit any other Person to amalgamate or merge into them, acquire any Person as a new Subsidiary or acquire all or substantially all of the assets or line of business or division of any other Person, except for the following: (a) the Company The Borrowers and the CompanyFIL’s Subsidiaries may amalgamate or merge with each other and with any other Person permitted to be acquired as a new Subsidiary under clause (b) below; provided, that, provided that (i)(AA) (1) in any such amalgamation or merger involving the Companyany Borrower, the Company such Borrower is the surviving Person, (B) [reserved] Person and (C2) in any such amalgamation or merger involving a Subsidiary Guarantor, the surviving Person is an Eligible Material Subsidiary and becomes a Subsidiary Guarantor by executing and delivering such documents of assumption, and related certificates and legal opinions as the Administrative Agent may reasonably request, and (iiB) in each case, no Event of Default has occurred and is continuing on the date of, or will result after giving effect to, any such amalgamation or merger; (b) the Company The Borrowers and the CompanyFIL’s Subsidiaries may acquire any Person as a new Subsidiary or all or substantially all of the assets of any Person or line of business or division of any Person; provided, provided that: (i) no Event of No Default has occurred and is continuing on the date of, or will result after giving effect to, any such acquisition; (ii) such Such Person (or line or division) is not primarily engaged in any business substantially different from (A1) the present business of the Company or any Subsidiary (other than any such acquired Subsidiary) or (B2) any business reasonably related or ancillary thereto; and (iii) in In the case of an acquisition of a Person as a new Subsidiary, the Borrower Borrowers or the CompanyFIL’s Subsidiaries possess the power to direct or cause the direction of the management and policies of such Person; and (c) any Any of the CompanyFIL’s Subsidiaries may amalgamate or consolidate with or merge into any other Person or permit any other Person to merge into them in connection with a sale, transfer or other disposition of assets otherwise permitted pursuant to this Agreement under Section 7.03 or in connection with a joint venture investment otherwise Investment permitted pursuant to this Agreement; providedunder Section 7.05, that, provided that to the extent any Loan Party is a party to any such joint venture, such Loan Party shall be the surviving entity.

Mergers, Acquisitions, Etc. None of the Company or any of the Company’s Subsidiaries No Loan Party shall amalgamate or consolidate with or merge into any other Person or permit any other Person to amalgamate or merge into themit (other than solely to change the jurisdiction of incorporation or organization or pursuant to an Acquisition permitted hereunder (but only to the extent done in compliance with the applicable provisions of the Security Agreement)), acquire establish any Person as a new Subsidiary (unless such new Subsidiary (other than an Exempt Subsidiary) becomes a Loan Party hereunder), or acquire all or substantially all of the assets or line of business or division of make any other PersonAcquisition, except for the following: (ai) the Company Borrower and the Company’s Subsidiaries other Loan Parties may amalgamate or merge with each other other, provided that (A) no Default will result after giving effect to any such merger and with any other Person permitted to be acquired as a new Subsidiary under clause (b) below; provided, that, (i)(AB) in any such amalgamation or merger involving the CompanyBorrower, the Company Borrower is the surviving Person, (B) [reserved] and (C) in any such amalgamation or merger involving a Subsidiary Guarantor, the surviving Person becomes a Subsidiary Guarantor by executing and delivering such documents of assumption, and related certificates and legal opinions as the Administrative Agent may reasonably request, and ; (ii) any Subsidiary of the Borrower may be merged with or into any Loan Party, or be liquidated, wound up or dissolved, or all or any part of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed of, in each caseone transaction or a series of transactions, to any o Loan Party, provided that no Event Default will result after giving effect to any such merger; (iii) any Exempt Subsidiary or any Foreign Subsidiary may be merged with or into any other Exempt Subsidiary or any other Foreign Subsidiary, or be liquidated, wound up or dissolved, or all or any part of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a series of transactions, to any other Exempt Subsidiary or any other Foreign Subsidiary, provided that no Default will result after giving effect to any such merger; (iv) Acquisitions of any Person engaged in the business of manufacture, distribution or retail sale of natural or gourmet foods, vitamins, supplements or personal care items (and related grocery and other products) provided that: (A) No Default has occurred and is continuing on the date of, or will result after giving effect to, any such amalgamation or merger;Acquisition; and (bB) The aggregate consideration paid by the Company and Loan Parties for all such Acquisitions (excluding consideration consisting of the Company’s Equity Securities of the Borrower or its Subsidiaries may acquire or of Net Cash Issuance Proceeds) paid in any Fiscal Year does not exceed $5,000,000; and (v) Acquisitions by any Loan Party of any Person as a new Subsidiary or of all or substantially all of the assets of any Person or line engaged in a type of business or division of any Person; provided, other than the type described in clause (iv) above provided that: (iA) no Event of No Default has occurred and is continuing on the date of, or will result after giving effect to, any such acquisition; (ii) such Person (or line or division) is not primarily engaged in any business substantially different from (A) the present business of the Company or any Subsidiary (other than any such acquired Subsidiary) or (B) any business reasonably related or ancillary theretoAcquisition; and (iiiB) in The aggregate consideration paid by the case Loan Parties for all such Acquisitions (excluding consideration consisting of an acquisition the Equity Securities of a Person as a new Subsidiary, the Borrower or its Subsidiaries or of Net Cash Issuance Proceeds) paid in any Fiscal Year does not exceed in the Company’s Subsidiaries possess the power to direct or cause the direction of the management and policies of such Person; and (c) any of the Company’s Subsidiaries may amalgamate or consolidate with or merge into any other Person or permit any other Person to merge into them in connection with a sale, transfer or other disposition of assets otherwise permitted pursuant to this Agreement or in connection with a joint venture investment otherwise permitted pursuant to this Agreement; provided, that, to the extent any Loan Party is a party to any such joint venture, such Loan Party shall be the surviving entityaggregate $1,000,000.

Mergers, Acquisitions, Etc. None of the Company or any of the Company’s Subsidiaries No Loan Party shall amalgamate reorganize, recapitalize or consolidate with or merge into any other Person or permit any other Person to amalgamate or merge into themit, acquire any Person as a new Subsidiary or acquire all or substantially all of the assets or line of business or division of any other Person, except for the following: (aA) the Company Borrower and the Company’s Subsidiaries other Loan Parties may amalgamate or merge with each other other; provided that (1) no Default shall have occurred and with be continuing or would result after giving effect to any other Person permitted to be acquired as a new Subsidiary under clause (b) below; provided, thatsuch merger, (i)(A2) in any such amalgamation or merger involving the CompanyBorrower and another Loan Party, the Company Borrower is the surviving Person, (B) [reserved] and (C3) in any such amalgamation or merger involving a Subsidiary Guarantor and another Loan Party (other than the Borrower), such Guarantor is the surviving Person; and (B) a merger or consolidation of a Person with or into the Borrower, with or into a Guarantor, the surviving Person becomes or with or into a Pledged Foreign Subsidiary Guarantor which constitutes an acquisition permitted by executing Section 5.02(d)(ii); provided that no Default shall have occurred and delivering be continuing or would result after giving effect to any such documents of assumption, and related certificates and legal opinions as the Administrative Agent may reasonably request, and merger; (ii) Acquisitions by the Borrower, a Guarantor, or a Pledged Foreign Subsidiary of any Person or the assets of a Person as a new Subsidiary or of all or substantially all of the assets of any other Person or identifiable business unit or division of any other Person (in each case, no Event of the “Proposed Target”); provided that: (A) No Default has occurred and is continuing on the date of, or will result after giving effect to, any such amalgamation or mergeracquisition (actually and on a pro forma basis); (bB) The Proposed Target is in the Company and same line of business as the Company’s Subsidiaries may acquire any Person Borrower or a line of business substantially related thereto; (C) The acquisition of the Proposed Target shall be completed as a new Subsidiary or result of an arm’s length negotiation (i.e. on a non-hostile basis); (D) The acquisition of the Proposed Target shall be consummated, in all or substantially material respects, in accordance with all applicable Governmental Rules; (E) The Proposed Target’s earnings before interest, taxes, depreciation and amortization (calculated in the same manner as EBITDA) for the last twelve months ending as of closing of such acquisition (as to such Proposed Target, the “Acquisition EBITDA”) is not less than negative $5,000,000 and such Proposed Target’s Acquisition EBITDA when added to the Acquisition EBITDA of each previously acquired Proposed Target with negative Acquisition EBITDA is not less than negative $10,000,000; (F) The Borrower has delivered to the Administrative Agent at least 15 calendar days prior to the closing date of such proposed acquisition: (1) written notice of such proposed acquisition, (2) financial statements of the subject of such acquisition (or, in the case of assets constituting less than all of the assets of a Person, the equivalent of financial statements with respect to such assets) to the extent available, but in no event for less than the immediately preceding twelve months, and (3) for each acquisition when the total consideration exceeds $10,000,000, pro forma financial statements reflecting the combined projected performance of the Loan Parties during the 12 months immediately following consummation of such transaction, certified to the Administrative Agent and the Lenders as being the good faith projections of the Borrower, in form and detail reasonably acceptable to the Administrative Agent, which projections shall show that such acquisition will not result in any Person or line of business or division of any Person; provided, that:Default hereunder; (iG) no Event of Default has occurred and is continuing The Borrower shall be in compliance with the financial covenants set forth in this Agreement on the date of, or will result a pro forma basis after giving effect to, any such acquisitionto the acquisition of the Proposed Target as of the last day of the fiscal quarter most recently ended; (iiH) such Person The Administrative Agent shall prior to the proposed acquisition date have received a Compliance Certificate evidencing pro forma compliance as described in clause (G) above; (I) The aggregate consideration after the date hereof for all acquisitions of Proposed Targets organized or domiciled under the law of any jurisdiction outside the United States shall not exceed $100,000,000 (or line or divisionthe dollar equivalent thereof determined, as to any acquisition, at the time of such acquisition); (J) is not primarily engaged The Administrative Agent shall hold a perfected, first priority security interest in any business substantially different from (A) the present business and lien on all of the Company assets acquired by the Borrower or a Guarantor in such transaction (including but not limited to the assets of the Proposed Target (unless it is, or is acquired by, a Foreign Subsidiary), subject only to Permitted Liens and, if the Proposed Target survives such transaction as a separate Subsidiary, any Subsidiary Equity Securities in the Proposed Target to the extent required by and, in connection with any Foreign Subsidiary, within the time frame set forth in Section 5.01(i)) (other than any it being understood that if those Equity Securities are Margin Stock, then the Loan Parties shall retire or otherwise cause such acquired Equity Securities to no longer retain their status as Margin Stock immediately following such acquisition); (K) If such Proposed Target remains a separate Subsidiary, all action required of the Loan Parties under Section 5.01(i) or (B) any business reasonably related or ancillary theretoshall be completed substantially concurrently with the consummation of such acquisition; and (iiiL) The aggregate amount of consideration paid or payable in the case of an acquisition of a Person as a new Subsidiary, the Borrower cash or the Company’s Subsidiaries possess the power to direct or cause the direction of the management and policies of such Person; and (c) any of the Company’s Subsidiaries may amalgamate or consolidate with or merge into any other Person or permit any other Person to merge into them property in connection with a salesuch acquisition (including seller notes, transfer “earn-out” and other contingent consideration (if contingent, determined as if such “earn-out” or other disposition contingent consideration will be earned, due and payable) calculated at the greater of assets otherwise permitted pursuant to this Agreement (i) the maximum stated or determinable amount thereof, or if not stated or if indeterminable, the maximum amount thereof estimated in good faith by the Borrower and (ii) the amounts paid in respect thereof), when taken together with the aggregate amount of consideration paid or payable in cash or other property in connection with a joint venture investment otherwise permitted pursuant to this Agreement; provided, that, to each other Permitted Acquisition consummated on or after the extent any Loan Party is a party to any Closing Date and with each Permitted Stock Repurchase consummated on or after the Closing Date shall not exceed the Permitted Acquisition and Stock Repurchase Maximum Amount as of the date of such joint venture, such Loan Party shall be the surviving entityacquisition.

Mergers, Acquisitions, Etc. None of Neither the Company or Borrower nor any of the Company’s its Subsidiaries shall amalgamate or consolidate with or merge into any other Person or permit any other Person to amalgamate or merge into them, acquire any Person as a new Subsidiary or acquire all or substantially all of the assets or line of business or division of any other Person, except for the following: (a) the Company The Borrower and the Company’s its Subsidiaries may amalgamate or merge with each other and with any other Person permitted to be acquired as a new Subsidiary under clause (b) below; provided, that, provided that (i)(Ai) (A) in any such amalgamation or merger involving the CompanyBorrower, the Company Borrower is the surviving Person, Person and (B) [reserved] and (C) in any such amalgamation or merger involving a Subsidiary Guarantor, the surviving Person is an Eligible Material Subsidiary and becomes a Subsidiary Guarantor by executing and delivering such documents of assumption, and related certificates and legal opinions as the Administrative Agent may reasonably request, and (ii) in each case, no Event of Default has occurred and is continuing on the date of, or will result after giving effect to, any such amalgamation or merger; (b) the Company The Borrower and the Company’s its Subsidiaries may acquire any Person as a new Subsidiary or all or substantially all of the assets of any Person or line of business or division of any Person; provided, provided that: (i) no Event of No Default has occurred and is continuing on the date of, or will result after giving effect to, any such acquisition; (ii) such Such Person (or line or division) is not primarily engaged in any business substantially different from (A) the present business of the Company Borrower or any Subsidiary (other than any such acquired Subsidiary) or (B) any business reasonably related or ancillary thereto; and (iii) in In the case of an acquisition of a Person as a new Subsidiary, the Borrower or the Company’s its Subsidiaries possess the power to direct or cause the direction of the management and policies of such Person; and (c) any Any of the CompanyFlex’s Subsidiaries may amalgamate or consolidate with or merge into any other Person or permit any other Person to merge into them in connection with a sale, transfer or other disposition of assets otherwise permitted pursuant to this Agreement under Section 7.03 or in connection with a joint venture investment otherwise Investment permitted pursuant to this Agreement; providedunder Section 7.05, that, provided that to the extent any Loan Party is a party to any such joint venture, such Loan Party shall be the surviving entity.

Mergers, Acquisitions, Etc. None of the Company Borrowers or any of the Company’s Subsidiaries shall amalgamate or consolidate with or merge into any other Person or permit any other Person to amalgamate or merge into them, acquire any Person as a new Subsidiary or acquire all or substantially all of the assets or line of business or division of any other Person, except for the following: (a) the Company Borrowers and the Company’s Subsidiaries may amalgamate or merge with each other and with any other Person permitted to be acquired as a new Subsidiary under clause (b) below; provided, that, (i)(A) in any such amalgamation or merger involving the Company, the Company is the surviving Person, (B) [reserved] in any such amalgamation or merger involving any Borrower (other than the Company), such Borrower is the surviving Person and (C) in any such amalgamation or merger involving a Subsidiary Guarantor, the surviving Person becomes a Subsidiary Guarantor by executing and delivering such documents of assumption, and related certificates and legal opinions as the Administrative Agent may reasonably request, and (ii) in each case, no Event of Default has occurred and is continuing on the date of, or will result after giving effect to, any such amalgamation or merger; (b) the Company Borrowers and the Company’s Subsidiaries may acquire any Person as a new Subsidiary or all or substantially all of the assets of any Person or line of business or division of any Person; provided, that: (i) no Event of Default has occurred and is continuing on the date of, or will result after giving effect to, any such acquisition; (ii) such Person (or line or division) is not primarily engaged in any business substantially different from (A) the present business of the Company or any Subsidiary (other than any such acquired Subsidiary) or (B) any business reasonably related or ancillary thereto; and (iii) in the case of an acquisition of a Person as a new Subsidiary, the Borrower Borrowers or the Company’s Subsidiaries possess the power to direct or cause the direction of the management and policies of such Person; and (c) any of the Company’s Subsidiaries may amalgamate or consolidate with or merge into any other Person or permit any other Person to merge into them in connection with a sale, transfer or other disposition of assets otherwise permitted pursuant to this Agreement or in connection with a joint venture investment otherwise permitted pursuant to this Agreement; provided, that, to the extent any Loan Party is a party to any such joint venture, such Loan Party shall be the surviving entity.

Mergers, Acquisitions, Etc. None of the Company or any of the Company’s Subsidiaries No Loan Party shall amalgamate reorganize or consolidate with or merge into any other Person or permit any other Person to amalgamate or merge into themit, acquire any Person as a new Subsidiary or acquire all or substantially all of the assets or line of business or division of any other Person, except for the following: (aA) the Company Borrower and the Company’s Subsidiaries other Loan Parties may amalgamate or merge with each other other; provided that (1) no Default shall have occurred and with be continuing or would result after giving effect to any other Person permitted to be acquired as a new Subsidiary under clause (b) below; provided, thatsuch merger, (i)(A2) in any such amalgamation or merger involving the CompanyBorrower and another Loan Party, the Company Borrower is the surviving Person, (B) [reserved] and (C3) in any such amalgamation or merger involving a Subsidiary Guarantor and another Loan Party (other than the Borrower), such Guarantor is the surviving Person; and (B) a merger or consolidation of a Person with or into the Borrower, with or into a Guarantor, the surviving Person becomes or with or into a Pledged Foreign Subsidiary Guarantor which constitutes an acquisition permitted by executing Section 5.02(d)(iii); provided that no Default shall have occurred and delivering be continuing or would result after giving effect to any such documents of assumption, and related certificates and legal opinions as the Administrative Agent may reasonably request, and merger; (ii) the Acquisition; and (iii) Acquisitions by the Borrower, a Guarantor, or a Pledged Foreign Subsidiary of any Person or the assets of a Person as a new Subsidiary or of all or substantially all of the assets of any other Person or identifiable business unit or division of any other Person (in each case, no Event of the “Proposed Target”); provided that: (A) No Default has occurred and is continuing on the date of, or will result after giving effect to, any such amalgamation or mergeracquisition (actually and on a pro forma basis); (bB) The Proposed Target is in the Company and same line of business as the Company’s Subsidiaries may acquire any Person Borrower or a line of business substantially related thereto; (C) The acquisition of the Proposed Target shall be completed as a new Subsidiary result of an arm's length negotiation (i.e. on a non-hostile basis); (D) The acquisition of the Proposed Target shall be consummated, in all material respects, in accordance with all applicable Governmental Rules; (E) For each proposed acquisition where the total consideration is less than $50,000,000, the Borrower has delivered to the Administrative Agent written notice of the same at least three Business Days' after the closing of such acquisition; (F) For each proposed acquisition where the total consideration is greater than or all or substantially equal to $50,000,000, the Borrower has delivered to the Administrative Agent at least 10 calendar days prior to the closing date of such proposed acquisition: (1) written notice of such proposed acquisition, (2) financial statements of the subject of such acquisition (or, in the case of assets constituting less than all of the assets of a Person, the equivalent of financial statements with respect to such assets) to the extent available, but in no event for less than the immediately preceding twelve months, and (3) pro forma financial statements reflecting the combined projected performance of the Loan Parties during the 12 months immediately following consummation of such transaction, certified to the Administrative Agent and the Lenders as being the good faith projections of the Borrower, in form and detail reasonably acceptable to the Administrative Agent, which projections shall show that such acquisition will not result in any Person or line of business or division of any Person; provided, that:Default hereunder; (iG) no Event of Default has occurred and is continuing The Borrower shall be in compliance with the financial covenants set forth in this Agreement on the date of, or will result a pro forma basis after giving effect to, any such acquisitionto the acquisition of the Proposed Target as of the last day of the fiscal quarter most recently ended for which financial statements have been delivered to the Administrative Agent pursuant to Section 5.01(a)(i) or 5.01(a)(ii) hereof; (iiH) such Person The Administrative Agent shall prior to the proposed acquisition date have received a Compliance Certificate evidencing pro forma compliance as described in clause (or line or divisionG) is not primarily engaged above; (I) The Administrative Agent shall hold a perfected, first priority security interest in any business substantially different from (A) the present business and lien on all of the Company assets acquired by the Borrower or a Guarantor in such transaction (including but not limited to the assets of the Proposed Target (unless it is, or is acquired by, a Foreign Subsidiary), subject only to Permitted Liens and, if the Proposed Target survives such transaction as a separate Subsidiary, any Subsidiary Equity Securities in the Proposed Target to the extent required by and, in connection with any Foreign Subsidiary, within the time frame set forth in Section 5.01(i)) (other than any it being understood that if those Equity Securities are Margin Stock, then the Loan Parties shall retire or otherwise cause such acquired Subsidiary) or (B) any business reasonably related or ancillary theretoEquity Securities to no longer retain their status as Margin Stock immediately following such acquisition); and (iiiJ) in the case of an acquisition of If such Proposed Target remains a Person as a new separate Subsidiary, the Borrower or the Company’s Subsidiaries possess the power to direct or cause the direction all action required of the management and policies of such Person; and (cLoan Parties under Section 5.01(i) any of the Company’s Subsidiaries may amalgamate or consolidate with or merge into any other Person or permit any other Person to merge into them in connection with a sale, transfer or other disposition of assets otherwise permitted pursuant to this Agreement or in connection with a joint venture investment otherwise permitted pursuant to this Agreement; provided, that, to the extent any Loan Party is a party to any such joint venture, such Loan Party shall be completed within the surviving entitytime frames set forth within such Section.

Mergers, Acquisitions, Etc. None of the Company or any of the Company’s Subsidiaries No Loan Party shall amalgamate reorganize, recapitalize or consolidate with or merge into any other Person or permit any other Person to amalgamate or merge into themit, acquire any Person as a new Subsidiary or acquire all or substantially all of the assets or line of business or division of any other Person, except for the following: (aA) the Company Borrower and the Company’s Subsidiaries other Loan Parties may amalgamate or merge with each other other; provided that (1) no Event of Default shall have occurred and with be continuing or would result after giving effect to any other Person permitted to be acquired as a new Subsidiary under clause (b) below; provided, thatsuch merger, (i)(A2) in any such amalgamation or merger involving the CompanyBorrower and another Loan Party, the Company Borrower is the surviving Person, (B) [reserved] and (C3) in any such amalgamation or merger involving a Subsidiary GuarantorGuarantor and another Loan Party (other than the Borrower), such Guarantor is the surviving Person; and (B) a merger or consolidation of a Person becomes into the Borrower or into a Subsidiary Guarantor which constitutes an acquisition permitted by executing Section 5.02(d)(ii); provided that no Event of Default shall have occurred and delivering be continuing or would result after giving effect to any such documents of assumption, and related certificates and legal opinions as the Administrative Agent may reasonably request, and merger; (ii) Acquisitions by the Borrower or a Guarantor of any Person or the assets of a Person as a new Subsidiary or of all or substantially all of the assets of any other Person or identifiable business unit or division of any other Person (in each case, no Event of the “Proposed Target”); provided that: (A) No Default has occurred and is continuing on the date of, or will result after giving effect to, any such amalgamation or mergeracquisition (actually and on a pro forma basis); (bB) The Proposed Target is in the Company and same or similar line of business as the Company’s Subsidiaries may acquire any Person Borrower or in a line of business that is complementary to the business of the Borrower; (C) The acquisition of the Proposed Target shall be completed as a new Subsidiary result of an arm’s length negotiation (i.e. on a non-hostile basis); (D) The acquisition of the Proposed Target shall be consummated, in all material respects, in accordance with all applicable Governmental Rules; (E) For any proposed acquisition of $15,000,000 or all or substantially more, such acquisition must be accretive to Consolidated EBITDA; provided that in no event shall acquisitions that are not accretive to Consolidated EBITDA exceed $45,000,000 in the aggregate in any Fiscal Year; (F) The Borrower has delivered to the Administrative Agent at least 20 calendar days prior to the closing date of such proposed acquisition: (1) written notice of such proposed acquisition, (2) financial statements of the subject of such acquisition (or, in the case of assets constituting less than all of the assets of a Person, the equivalent of financial statements with respect to such assets) to the extent available, but in no event for less than the immediately preceding twelve months, and (3) pro forma financial statements reflecting the combined projected performance of the Loan Parties during the 12 months immediately following consummation of such transaction, certified to the Administrative Agent and the Lenders as being the good faith projections of the Borrower, in form and detail reasonably acceptable to the Administrative Agent, which projections shall show that such acquisition will not result in any Person or line of business or division of any Person; provided, that:Default hereunder; (iG) no Event of Default has occurred and is continuing The Borrower shall be in compliance with the financial covenants set forth in this Agreement on the date of, or will result a pro forma basis after giving effect toto the acquisition of the Proposed Target as of the last day of the Fiscal Quarter most recently ended; (H) The Administrative Agent shall prior to the proposed acquisition date have received a Compliance Certificate evidencing pro forma compliance as described in clause (G) above; (I) No Proposed Target shall be organized or domiciled under the law of any jurisdiction outside the United States, and no Proposed Target shall have more than 10% of its assets or annual revenues based in or from outside of the United States (as determined from the most recently available financial information for the Proposed Target) unless such Proposed Target will be acquired as a Foreign Subsidiary and 66% of the voting Equity Securities of such Foreign Subsidiary shall be pledged as Collateral and the other requirements of Section 5.01(i) shall have been satisfied; (J) The Administrative Agent shall hold a perfected, first priority security interest in and lien on all of the assets acquired by the Borrower or a Guarantor in such transaction (including but not limited to the assets of the Proposed Target (unless it is, or is acquired by, a Foreign Subsidiary), subject only to Permitted Liens and, if the Proposed Target survives such transaction as a separate Subsidiary, any Equity Securities in the Proposed Target to the extent required by and, in connection with any Foreign Subsidiary, within the time frame set forth in Section 5.01(i)) (it being understood that if those Equity Securities are Margin Stock, then the Loan Parties shall retire or otherwise cause such Equity Securities to no longer retain their status as Margin Stock immediately following such acquisition); (K) If such Proposed Target remains a separate Subsidiary, all action required of the Loan Parties under Section 5.01(i) shall be completed substantially concurrently with the consummation of such acquisition; (iiL) such Person (or line or division) is not primarily engaged in In any business substantially different from (A) the present business of the Company or any Subsidiary (other than any such acquired Subsidiary) or (B) any business reasonably related or ancillary thereto; and (iii) in the case of an acquisition of a Person as a new SubsidiaryFiscal Year, the Borrower aggregate amount of consideration paid or the Company’s Subsidiaries possess the power to direct payable in cash or cause the direction of the management and policies of such Person; and (c) any of the Company’s Subsidiaries may amalgamate or consolidate with or merge into any other Person or permit any other Person to merge into them property in connection with a salesuch acquisition consummated in such Fiscal Year (including seller notes, transfer “earn-out” and other contingent consideration (if contingent, determined as if such “earn-out” or other disposition contingent consideration will be earned, due and payable in such Fiscal Year) calculated at the greater of assets otherwise permitted pursuant to this Agreement (i) the maximum stated or determinable amount thereof, or if not stated or if indeterminable, the maximum amount thereof estimated in good faith by the Borrower and (ii) the amounts paid in respect thereof), when taken together with the aggregate amount of consideration paid or payable in cash or other property in connection with a joint venture investment otherwise permitted pursuant to this Agreement; provided, that, to each other Permitted Acquisition consummated on or after the extent any Loan Party is a party to any Closing Date and in such joint venture, such Loan Party Fiscal Year shall be the surviving entitynot exceed $100,000,000.

Mergers, Acquisitions, Etc. None of Neither the Company or Borrower nor any of the Company’s its Subsidiaries shall amalgamate or consolidate with or merge into any other Person or permit any other Person to amalgamate or merge into them, acquire any Person as a new Subsidiary or acquire all or substantially all of the assets or line of business or division of any other Person, except for the following: (a) the Company The Borrower and the Company’s its Subsidiaries may amalgamate or merge with each other and with any other Person permitted to be acquired as a new Subsidiary under clause (b) below; provided, that, provided that (i)(Ai) (A) in any such amalgamation or merger involving the CompanyBorrower, the Company Borrower is the surviving Person, Person and (B) [reserved] and (C) in any such amalgamation or merger involving a Subsidiary Guarantor, the surviving Person is an Eligible Material Subsidiary and becomes a Subsidiary Guarantor by executing and delivering such documents of assumption, and related certificates and legal opinions as the Administrative Agent may reasonably request, and (ii) in each case, no Event of Default has occurred and is continuing on the date of, or will result after giving effect to, any such amalgamation or merger; (b) the Company The Borrower and the Company’s its Subsidiaries may acquire any Person as a new Subsidiary or all or substantially all of the assets of any Person or line of business or division of any Person; provided, provided that: (i) no Event of No Default has occurred and is continuing on the date of, or will result after giving effect to, any such acquisition; (ii) such Such Person (or line or division) is not primarily engaged in any business substantially different from (A) the present business of the Company Borrower or any Subsidiary (other than any such acquired Subsidiary) or (B) any business reasonably related or ancillary thereto; and (iii) in In the case of an acquisition of a Person as a new Subsidiary, the Borrower or the Company’s its Subsidiaries possess the power to direct or cause the direction of the management and policies of such Person; and (c) any Any of the CompanyFlex’s Subsidiaries may amalgamate or consolidate with or merge into any other Person or permit any other Person to merge into them in connection with a sale, transfer or other disposition of assets otherwise permitted pursuant to this Agreement under Section 7.03 or in connection with a joint venture investment otherwise Investment permitted pursuant to this Agreement; providedunder Section 7.05, that, provided that to the extent any Loan Party is a party to any such joint venture, such Loan Party shall be the surviving entity.

Mergers, Acquisitions, Etc. None of the Company or any of the Company’s Subsidiaries No Loan Party shall amalgamate reorganize, recapitalize or consolidate with or merge into any other Person or permit any other Person to amalgamate or merge into themit, acquire any Person as a new Subsidiary or Related Professional Corporation or acquire all or substantially all of the assets assets, or line of any identifiable business unit or division division, of any other Person, except for the following: (aA) the Company Borrower and the Company’s Subsidiaries other Loan Parties may amalgamate or merge with each other; provided that (1) no Default shall have occurred and be continuing or would result after giving effect to any such merger, (2) in any such merger involving the Borrower and another Loan Party, the Borrower is the surviving Person and (3) in any merger involving a Guarantor and another Loan Party (other than the Borrower), such Guarantor is the surviving Person; and with (B) a merger or consolidation of a Person into the Borrower or into a Guarantor which constitutes an acquisition permitted by Section 5.02(d)(ii); provided that no Default shall have occurred and be continuing or would result after giving effect to any other such merger; (ii) Acquisitions by the Borrower or a Guarantor of any Person permitted to be acquired or the assets of a Person as a new Subsidiary under clause or of all or substantially all of the assets of any other Person or identifiable business unit or division of any other Person (b) below; provided, that, (i)(A) in any such amalgamation or merger involving the Company, the Company is the surviving Person, (B) [reserved] and (C) in any such amalgamation or merger involving a Subsidiary Guarantor, the surviving Person becomes a Subsidiary Guarantor by executing and delivering such documents of assumption, and related certificates and legal opinions as the Administrative Agent may reasonably request, and (ii) in each case, no Event of the “Proposed Target”); provided that: (A) No Default has occurred and is continuing on the date of, or will result after giving effect to, any such amalgamation or mergeracquisition (actually and on a pro forma basis); (bB) The Proposed Target is in the Company and same or similar line of business as the Company’s Subsidiaries may acquire any Person Borrower; (C) The acquisition of the Proposed Target shall be completed as a new Subsidiary result of an arm’s length negotiation (i.e. on a non-hostile basis); (D) The acquisition of the Proposed Target shall be consummated, in all material respects, in accordance with all applicable Governmental Rules; (E) The Borrower has delivered to the Administrative Agent, for each acquisition when the total consideration exceeds $8,500,000, within at least ten (10) Business Days prior to the closing date of such proposed acquisition: (1) written notice of such proposed acquisition and (2) a pro forma income statement in form and detail reasonably acceptable to the Administrative Agent, which shall show (i) that such acquisition will not result in any Default hereunder and (ii) pro forma compliance with the financial covenants on a going forward basis; (F) The Administrative Agent shall prior to the proposed acquisition date have received a Compliance Certificate evidencing pro forma compliance as described in clause (E) above; (G) No Proposed Target shall be organized or all or substantially domiciled under the law of any jurisdiction outside the United States and after giving effect to the proposed acquisition, at least 80% of the pro forma consolidated revenues of the Borrower will be derived from United States, United States territories, Canada and Mexico operations; (H) The Administrative Agent shall hold a perfected, first priority security interest in and lien on all of the assets acquired by the Borrower or a Guarantor in such transaction (including but not limited to the assets of any Person or line of business or division of any Person; providedthe Proposed Target) and, that: (i) no Event of Default has occurred and is continuing on if the date of, or will result after giving effect toProposed Target survives such transaction as a separate Subsidiary, any such acquisition; (ii) such Person (or line or division) is not primarily engaged Equity Securities in any business substantially different from (A) the present business of Proposed Target to the Company or any Subsidiary (other than any such acquired Subsidiary) or (B) any business reasonably related or ancillary theretoextent required by Section 5.01(i); and (iiiI) in the case If such Proposed Target remains a separate Subsidiary or Related Professional Corporation, all action required of an acquisition of a Person as a new such Subsidiary, Related Professional Corporation and the Borrower or Loan Parties under Section 5.01(i) shall be completed substantially concurrently with the Company’s Subsidiaries possess the power to direct or cause the direction of the management and policies consummation of such Person; and (c) any of the Company’s Subsidiaries may amalgamate or consolidate with or merge into any other Person or permit any other Person to merge into them in connection with a sale, transfer or other disposition of assets otherwise permitted pursuant to this Agreement or in connection with a joint venture investment otherwise permitted pursuant to this Agreement; provided, that, to the extent any Loan Party is a party to any such joint venture, such Loan Party shall be the surviving entityacquisition.

Mergers, Acquisitions, Etc. None of the Company Borrowers or any of the Company’s Subsidiaries shall amalgamate or consolidate with or merge into any other Person or permit any other Person to amalgamate or merge into them, acquire any Person as a new Subsidiary or acquire all or substantially all of the assets or line of business or division of any other Person, except for the following: (a) the Company Borrowers and the Company’s Subsidiaries may amalgamate or merge with each other and with any other Person permitted to be acquired as a new Subsidiary under clause (b) below; , provided, that, (i)(Ai) (A) in any such amalgamation or merger involving the Company, the Company is the surviving Person, (B) [reserved] in any such amalgamation or merger involving any Borrower (other than the Company), such Borrower is the surviving Person and (C) in any such amalgamation or merger involving a Subsidiary Guarantor, the surviving Person is an Eligible Material Subsidiary and becomes a Subsidiary Guarantor by executing and delivering such documents of assumption, and related certificates and legal opinions as the Administrative Agent may reasonably request, and (ii) in each case, no Event of Default has occurred and is continuing on the date of, or will result after giving effect to, any such amalgamation or merger; (b) the Company Borrowers and the Company’s Subsidiaries may acquire any Person as a new Subsidiary or all or substantially all of the assets of any Person or line of business or division of any Person; , provided, that: (i) no Event of Default has occurred and is continuing on the date of, or will result after giving effect to, any such acquisition; (ii) such Person (or line or division) is not primarily engaged in any business substantially different from (A) the present business of the Company or any Subsidiary (other than any such acquired Subsidiary) or (B) any business reasonably related or ancillary thereto; and (iii) in the case of an acquisition of a Person as a new Subsidiary, the Borrower Borrowers or the Company’s Subsidiaries possess the power to direct or cause the direction of the management and policies of such Person; and (c) any of the Company’s Subsidiaries may amalgamate or consolidate with or merge into any other Person or permit any other Person to merge into them in connection with a sale, transfer or other disposition of assets otherwise permitted pursuant to this Agreement under Section 7.03 or in connection with a joint venture investment otherwise Investment permitted pursuant to this Agreement; under Section 7.05, provided, that, to the extent any Loan Party is a party to any such joint venture, such Loan Party shall be the surviving entity.

Mergers, Acquisitions, Etc. None of the Company or any of the Company’s Subsidiaries No Loan Party shall amalgamate reorganize, recapitalize, liquidate, dissolve or consolidate with or merge into any other Person or permit any other Person to amalgamate or merge into themit, acquire any Person as a new Subsidiary or acquire all or substantially all of the assets or line of business or division of any other Person, except for the following: (ai) the Company Borrower and the Company’s Subsidiaries other Loan Parties (other than GPI) may amalgamate consolidate or merge with each other other; provided that (A) no Default or Event of Default (or event or circumstance described in Section 2.06(d)) shall have occurred and with be continuing or would result after giving effect to any other such consolidation or merger and (B) in any such consolidation or merger involving the Borrower and another Loan Party, the Borrower is the surviving Person; (ii) Intentionally Omitted; (iii) Acquisitions by the Borrower or a Guarantor of any Person permitted to be acquired or the assets of a Person as a new Subsidiary under clause or of all or substantially all of the assets of any other Person or identifiable business unit or division of any other Person (b) below; provided, that, (i)(A) in any such amalgamation or merger involving the Company, the Company is the surviving Person, (B) [reserved] and (C) in any such amalgamation or merger involving a Subsidiary Guarantor, the surviving Person becomes a Subsidiary Guarantor by executing and delivering such documents of assumption, and related certificates and legal opinions as the Administrative Agent may reasonably request, and (ii) in each case, no the “Proposed Target”); provided that: (A) No Default or Event of Default (or event or circumstance described in Section 2.06(d)) has occurred and is continuing on the date of, or will result after giving effect to, any such amalgamation or mergeracquisition (actually and on a pro forma basis); (bB) The Proposed Target is in the Company and same or similar line of business as the Company’s Subsidiaries may acquire any Person Borrower; (C) The acquisition of the Proposed Target shall be completed as a new Subsidiary or result of an arm’s length negotiation (i.e. on a non-hostile basis); (D) The Proposed Target’s earnings before interest, taxes, depreciation and amortization (calculated in a manner reasonably acceptable to the Administrative Agent) for the last twelve months ending as of closing of such acquisition is not less than zero; (E) The acquisition of the Proposed Target shall be consummated, in all or substantially material respects, in accordance with all applicable laws and all applicable Governmental Authorizations; (F) The Borrower have delivered to the Administrative Agent, (1) written notice of such proposed acquisition at least 20 calendar days prior to the closing date of such proposed acquisition, (2) financial statements of the subject of such acquisition (or, in the case of assets constituting less than all of the assets of a Person, the equivalent of financial statements with respect to such assets) to the extent available, but in no event for less than the immediately preceding twelve months, and (3) pro forma financial statements reflecting the combined projected performance of the Loan Parties during the 12 months immediately following consummation of such transaction, certified to the Administrative Agent and the Lenders as being the good faith projections of the Borrower, in form and detail reasonably acceptable to the Administrative Agent, which projections shall show that such acquisition will not result in any Person Default hereunder (or line of business event or division of any Person; provided, that:circumstance described in Section 2.06(d)); (iG) no Event of Default has occurred The Borrower shall be in compliance with the covenants in Section 5.03 and is continuing any financial covenants set forth in this Agreement on the date of, or will result a pro forma basis after giving effect toto the acquisition of the Proposed Target as of the last day of the fiscal quarter most recently ended and, prior to the proposed acquisition date, the Administrative Agent shall have received a Compliance Certificate evidencing such pro forma compliance; (H) No Proposed Target shall be organized or domiciled under the law of any such jurisdiction outside the United States or Canada, and no Proposed Target shall have more than 10% of its assets or annual revenues based in or from outside of the United States or Canada (as determined from the most recently available financial information for the Proposed Target); (I) The Proposed Target shall be owned directly by the Borrower or, if the Proposed Target remains a separate entity, be a wholly-owned Subsidiary of the Borrower after giving effect to the acquisition; (iiJ) such Person (or line or division) is not primarily engaged The Collateral Agent shall hold a perfected, first priority security interest in any business substantially different from (A) the present business and lien on all of the Company assets acquired by the Borrower or a Guarantor in such transaction (including but not limited to the assets of the Proposed Target, subject only to Permitted Liens and, if the Proposed Target survives such transaction as a separate Subsidiary, any Equity Securities in the Proposed Target to the extent required by Section 5.01(i)); (K) If such Proposed Target remains a separate Subsidiary, all action required of the Loan Parties under Section 5.01(i) shall be completed substantially concurrently with the consummation of such acquisition or, if reasonably requested by the Administrative Agent, such Proposed Target (and any Subsidiary (other than any of the Proposed Target acquired as part of the acquisition) shall be a party to the Credit Documents as an additional borrower substantially concurrently with the consummation of such acquired Subsidiary) or (B) any business acquisition pursuant to documentation in form and substance reasonably related or ancillary theretosatisfactory to the Administrative Agent; and (iiiL) The consideration paid or payable in cash or other property (other than common Equity Securities) in connection with such acquisition (including “earn-out” or similar payments), when taken together with each other Permitted Acquisition consummated since the case Original Closing Date shall not exceed $5,000,000 in the aggregate (plus an amount equal to (1) 25% multiplied by (2) the cumulative amount of an OIBDA that is generated from and after October 1, 2007 to the extent such OIBDA exceeds $50,000,000); provided, that (x) consideration paid or payable in common Equity Securities of the Borrower or GPI shall not be subject to or included in the dollar limit set forth in this clause (L) and (y) the acquisition of a Person company disclosed to the Administrative Agent in writing prior to the Closing Date for an amount of up to $10,000,000 of cash consideration paid as a new Subsidiary, the Borrower or the Company’s Subsidiaries possess the power to direct or cause the direction of the management and policies closing of such Person; and acquisition (c) any plus an additional amount of up to $2,500,000 in earn-out payments to the Company’s Subsidiaries may amalgamate or consolidate with or merge into any other Person or permit any other Person extent actually earned pursuant to merge into them the documents executed in connection with a sale, transfer such acquisition) shall not be subject to or other disposition of assets otherwise permitted pursuant to included in the dollar limit set forth in this Agreement or in connection with a joint venture investment otherwise permitted pursuant to this Agreement; provided, that, to the extent any Loan Party is a party to any such joint venture, such Loan Party shall be the surviving entityclause (L).