Common use of Merger Transaction Clause in Contracts

Merger Transaction. Notwithstanding anything to the contrary in Section 2(a) or 2(b) hereof, if the Company shall consolidate with, merge with or sell or convey all or substantially all of its assets to any other entity ( a “Merger Transaction”) prior to the closing of the Next Qualified Financing, then the Company shall give the Lender notice of such Merger Transaction at least twenty (20) business days prior to the consummation of such transaction (the “Closing Date”) and shall provide Lender with full access to such lawful information as may be requested by Lender with respect to the Merger Transaction and the surviving corporation of such transaction, and, at the Majority Holders’ option, either: (i) this Note shall be converted, effective immediately prior to the consummation of such transaction, into the number of whole shares of the Company’s Series C Preferred Stock equal to the quotient obtained by dividing (x) the outstanding aggregate principal amount of this Note plus all accrued but unpaid interest thereon as of the consummation date of such Merger Transaction and all other amounts owing hereunder by (y) the price per share to be received by holders of the Company’s Series C Preferred Stock (or, if such Series C Preferred Stock is to be converted into the Company’s Common Stock upon or prior to such Merger Transaction, the price per share to be received by holders of the Company’s Common Stock) pursuant to such Merger Transaction, or (ii) the Company shall repay the outstanding aggregate principal amount of this Note plus all accrued but unpaid interest thereon and all other amounts owing hereunder immediately prior to or concurrently with the closing of the Merger Transaction. The Majority Holders shall give the Company and the Lender notice of their intent to proceed under Section 2(b)(i) or 2(b)(ii) within two (2) business days prior to the Closing Date, and if no such notice is given, the Majority Holders will be deemed to have elected to proceed under Section 2(b)(ii).

Merger Transaction. Notwithstanding anything to the contrary The Merger Subsidiary shall have consummated a merger with BPW in Section 2(a) or 2(b) hereof, if the Company shall consolidate with, merge accordance with or sell or convey all or substantially all Requirements of its assets to any other entity ( a “Merger Transaction”) prior to the closing of the Next Qualified Financing, then the Company shall give the Lender notice of such Merger Transaction at least twenty (20) business days prior to the consummation of such transaction (the “Closing Date”) Law and shall provide Lender with full access to such lawful information as may be requested by Lender with respect to the Merger Transaction and the surviving corporation of such transactionDocuments, and, at the Majority Holders’ option, eitherpursuant to which: (i) this Note BPW shall be convertedthe surviving entity; (ii) The Company shall have received cash consideration (the “Merger Capital”) in a minimum amount sufficient, effective immediately prior such that after giving effect to (A) the consummation Merger Transaction, (B) the repayment of all AEON Debt in the manner specified below, (C) the payment of all Transaction Expenses, (D) the borrowing of Term Loan B under the Term Loan B Documents on the Closing Date (if any) and (E) the borrowing of Revolving Loans and the Issuance of any Letters of Credit under this Agreement on the Closing Date, (I) the Borrowers shall have, on a pro forma basis minimum Availability of not less than $40,000,000 on the Closing Date (determined with trade payables being paid currently in accordance with payment practices for the Borrowers in effect as of the Closing Date, expenses and liabilities being paid in the ordinary course of business and without acceleration of sales and without any material deterioration in working capital), (II) the aggregate principal amount of all outstanding secured Indebtedness (including Indebtedness under the Loan Documents and the Term Loan B Documents (if any), but excluding the Specified Secured Debt) of the Credit Parties shall not exceed $222,000,000 on the Closing Date and (III) all such transactionoutstanding secured Indebtedness shall be as set forth on Schedule 2.1(b)(ii); (iii) the existing shareholders of BPW shall have received a majority equity ownership interest in the Company; and (iv) solely in consideration of the repayment of the AEON Debt (other than Indebtedness under the AEON Revolver Facility) and without the payment (in cash or otherwise) of any other amounts or consideration by any Credit Party, into all of the number outstanding Stock and Stock Equivalents of whole shares the Company and its Subsidiaries owned (directly or indirectly) by AEON and any AEON Affiliate (other than the Company and any of the Company’s Series C Preferred Subsidiaries), shall be surrendered, retired, defeased and/or redeemed; provided, however, that AEON may receive warrants for common Stock equal to the quotient obtained by dividing (x) the outstanding aggregate principal amount of this Note plus all accrued but unpaid interest thereon as of the consummation date Company on terms and conditions reasonably acceptable to Agent and with an exercise price of such Merger Transaction and all other amounts owing hereunder by (y) not less than the price fair market value per share to be received by holders of the Company’s Series C Preferred common Stock of the Company on the Closing Date; (orall of the foregoing referred to hereinafter, if such Series C Preferred Stock is to be converted into the Company’s Common Stock upon or prior to such “Merger Transaction”). Prior to requesting any initial Loans or the Issuance of any Letters or Credit under this Agreement, the price per share to be received by holders of the Company’s Common Stock) pursuant to such Merger Transaction, or (ii) the Company Borrowers shall repay the outstanding aggregate principal amount of this Note plus have applied all accrued but unpaid interest thereon and all other amounts owing hereunder immediately prior to or concurrently with the closing proceeds of the Merger Transaction. The Majority Holders shall give the Company Capital and the Lender notice proceeds of their intent to proceed under Section 2(b)(ithe Term Loan B (if any) or 2(b)(ii) within two (2) business days prior as follows: first, to the Closing Datepayment of all AEON Debt (other than Indebtedness under the AEON Revolver Facility), second, to the payment of Indebtedness under the AEON Revolver Facility, and third, to the payment of all Transaction Expenses; provided, however, that in the event that the aggregate proceeds of the Merger Capital and the Term Loan B (if no any) shall not be sufficient to pay in full Indebtedness under the AEON Revolver Facility and/or any such notice is givenTransaction Expenses, the Majority Holders will Borrowers may, subject to the terms, conditions and limitations set forth herein, borrow Revolving Loans on the Closing Date solely to pay any such excess Indebtedness under the AEON Revolver Facility and/or such Transaction Expenses (it being understood and agreed that under no circumstances shall any proceeds from the Revolving Loans be deemed applied to have elected to proceed the payment of the AEON Debt (other than Indebtedness under Section 2(b)(iithe AEON Revolver Facility) and that in no event shall proceeds from any Loans hereunder be commingled with the proceeds of any Merger Capital or the proceeds of the Term Loan B).

Merger Transaction. Notwithstanding anything to the contrary in Section 2(a) or 2(b) hereof, if the Company shall consolidate with, merge with or sell or convey all or substantially all of its assets to any other entity ( (a “Merger Transaction”) prior to the closing of the Next Qualified Financing, then the Company shall give the Lender notice of such Merger Transaction at least twenty (20) business days prior to the consummation of such transaction (the “Closing Date”) and shall provide Lender with full access to such lawful information as may be requested by Lender with respect to the Merger Transaction and the surviving corporation of such transaction, and, at the Majority Holders’ option, either: (i) this Note shall be converted, effective immediately prior to the consummation of such transaction, into the number of whole shares of the Company’s Series C Preferred Stock equal to the quotient obtained by dividing (x) the outstanding aggregate principal amount of this Note plus all accrued but unpaid interest thereon as of the consummation date of such Merger Transaction and all other amounts owing hereunder by (y) the price per share to be received by holders of the Company’s Series C Preferred Stock (or, if such Series C Preferred Stock is to be converted into the Company’s Common Stock upon or prior to such Merger Transaction, the price per share to be received by holders of the Company’s Common Stock) pursuant to such Merger Transaction, or (ii) the Company shall repay the outstanding aggregate principal amount of this Note plus all accrued but unpaid interest thereon and all other amounts owing hereunder immediately prior to or concurrently with the closing of the Merger Transaction. The Majority Holders shall give the Company and the Lender notice of their intent to proceed under Section 2(b)(i) or 2(b)(ii) within two (2) business days prior to the Closing Date, and if no such notice is given, the Majority Holders will be deemed to have elected to proceed under Section 2(b)(ii).

Merger Transaction. Notwithstanding anything (a) The parties acknowledge and agree that, subject only to receipt of a favorable fairness opinion by a qualified expert, on or before December 31, 2001, the contrary Directors of the Borrower and of ▇▇▇▇▇▇, Inc. will take all steps necessary to effect a merger (or other similar transaction) between ▇▇▇▇▇▇, Inc. and the Borrower, in which ▇▇▇▇▇▇, Inc. shall be the surviving entity (the "Merger"). For purposes of this Section 2(a21, ▇▇▇▇▇▇, Inc. shall sometimes be referred to herein as the "Surviving Entity." It is understood and agreed that upon consummation of the Merger, the Lender will increase its investment in the Borrower to an aggregate amount equal to $8,000,000 (the "Purchase Price"), and in exchange therefor the Lender will acquire 33.34% of the common stock of the Surviving Entity (the "Shares") on a basis fully diluted for the issuance of shares of common stock and all shares of common stock underlying options, warrants or 2(b) hereofother claims of ownership, if except for the Company Common Stock Purchase Warrants issued to Wand Partners, Transaction Systems Architects, Inc. and to others, which in the aggregate are equal to approximately 5,000,580 warrants, and employee stock options, all outstanding on the date hereof and any additional employee stock options outstanding on the date of the Merger (a "Fully Diluted Basis of the Surviving Entity"). In the event that the Purchase Price is in the aggregate amount of at least $7,500,000, the Lender shall consolidate with, merge with or sell or convey all or substantially all not be deemed to be in default of its assets to any other entity ( obligations under this Section 21, and in exchange therefor the Lender will acquire 31.26% of the common stock of the Surviving Entity on a “Merger Transaction”) Fully Diluted Basis of the Surviving Entity or such equity interest shall be otherwise proportionately reduced from 33.34% by the amount that the Purchase Price is less than an aggregate of $8,000,000 but more than $7,500,000, in lieu of the Shares (the "Substitute Equity"). The remaining equity of the Surviving Entity will be distributed among the security holders of the Borrower immediately prior to the closing effective time of the Next Qualified FinancingMerger and the security holders of ▇▇▇▇▇▇, then the Company shall give the Lender notice of such Merger Transaction at least twenty (20) business days Inc. immediately prior to the consummation effective time of such transaction (the “Closing Date”) and shall provide Lender with full access to such lawful information as may be requested by Lender with respect to the Merger Transaction and the surviving corporation of such transaction, and, at the Majority Holders’ option, either:Merger. (ib) In consideration for the delivery of the Shares or the Substitute Equity, as the case may be, this Note shall be converted, effective immediately prior to cancelled and the consummation of such transaction, into the number of whole shares of the Company’s Series C Preferred Stock equal to the quotient obtained by dividing (x) the outstanding aggregate entire unpaid principal amount of this the Note plus and all accrued but unpaid interest thereon as shall be credited against the Purchase Price. (c) Upon consummation of the consummation date Merger, the Board of such Merger Transaction and all other amounts owing hereunder by (y) the price per share to be received by holders Directors of the Company’s Series C Preferred Stock Surviving Entity (or, if such Series C Preferred Stock is to be converted into the Company’s Common Stock upon "Board") shall consist of either six (6) or prior to such Merger Transactionnine (9) members. Thereafter, the price per share Lender shall have the right to be received by holders of the Company’s Common Stockdesignate either (i) pursuant to such Merger Transaction, or (ii) the Company shall repay the outstanding aggregate principal amount of this Note plus all accrued but unpaid interest thereon and all other amounts owing hereunder immediately prior to or concurrently with the closing of the Merger Transaction. The Majority Holders shall give the Company and the Lender notice of their intent to proceed under Section 2(b)(i) or 2(b)(ii) within two (2) business days members of the Board if the Board consists of a total of six (6) members, or (ii) three (3) members of the Board if the Board consists of a total of nine (9) members (the "Board Representation"). The balance of the Board shall be designated as follows: (x) one half by a group of stockholders of the Surviving Entity consisting of the former stockholders of ▇▇▇▇▇▇, Inc., and (y) one half by a group of stockholders of the Surviving Entity consisting of the former stockholders of the Borrower. (d) It is contemplated that upon consummation of the Merger, the Lender, along with certain principal stockholders of each of ▇▇▇▇▇▇, Inc. and the Borrower shall enter into an agreement not to sell or otherwise transfer or dispose of any shares of common stock of the Surviving Entity, the Shares or the Substitute Equity, as the case may be, for at least a twelve-month period following the effective time of the Merger and for no longer than an eighteen-month period following the effective time of the Merger (the "Lock-Up Period"), unless a secondary public offering of the common stock of the Surviving Entity is consummated prior to the Closing Dateexpiration of the Lock-Up Period. (e) For purposes of clarification, the parties acknowledge and agree that the obligations of the Lender under this Section 21 are conditioned upon the Lender's receipt of either the Shares or the Substitute Equity, as the case may be, and if no such notice is given, the Majority Holders will be deemed to have elected to proceed under Section 2(b)(ii)Board Representation.

Merger Transaction. Notwithstanding anything (a) Subject to all of the terms and conditions of this Agreement and pursuant to the contrary terms and conditions set forth in Section 2(athose certain Articles of Merger attached hereto and incorporated herein by reference as Exhibit 1.2(a) or 2(b) (the "Articles of Merger"), on the Merger Closing Date, as defined in ARTICLE 8 hereof, if the Company BBS shall consolidate with, merge with or sell or convey all or substantially all and into Acquisition by filing the Articles of its assets to any other entity ( a “Merger Transaction”with the State Department of Assessments and Taxation of Maryland (the "SDAT"). (b) prior to the closing Within five (5) days of the Next Qualified Financingdate of this Agreement, then the Company Acquisition shall give the Lender notice deliver to Acquisition's counsel, McGuire, Woods, Battle & ▇▇▇▇▇▇ LLP, 200,000 shares of such Merger Transaction at least twenty (20) business days prior to the consummation of such transaction Office Solutions common stock, par value $0.000001 per share (the “Closing Date”"Merger Shares") in the names of JPB and PAB in such amounts as set forth in the Articles of Merger. The Merger Shares shall provide Lender with full access to such lawful information as may be requested held in escrow by Lender with respect said counsel pursuant to the Merger Transaction Escrow Agreement attached hereto and incorporated herein by reference as Exhibit 1.2(b) until the surviving corporation Merger Closing Date. Acquisition agrees that promptly upon the filing and acceptance for record of the Articles of Merger by SDAT, it will cause its counsel to deliver to JPB and PAB stock certificates evidencing the Merger Shares in such transactionamounts as set forth in the Articles of Merger. In exchange therefor, and, PAB and JPB agree to deliver at the Majority Holders’ optionMerger Closing, either:against delivery of the Merger Shares, stock certificates evidencing the JPB and PAB Stock, for cancellation as provided in the Articles of Merger. (ic) this Note shall be converted, effective immediately prior The parties hereto intend that the Merger Transaction qualify as a tax-free reorganization pursuant to the consummation of such transaction, into the number of whole shares Sections 368(a)(1)(A) and 368(a)(2)(D) of the Company’s Series C Preferred Stock equal Internal Revenue Code of 1986 (the "Code"). The parties hereto agree to take no action inconsistent with the quotient obtained by dividing (x) the outstanding aggregate principal amount of this Note plus all accrued but unpaid interest thereon as treatment of the consummation date of such Merger Transaction as a reorganization under Code Sections 368(a)(1)(A) and 368(a)(2)(D) and further agree to comply with all applicable Internal Revenue Service filing and other amounts owing hereunder by (y) the price per share to be received by holders of the Company’s Series C Preferred Stock (or, if such Series C Preferred Stock is to be converted into the Company’s Common Stock upon or prior requirements with respect to such Merger Transaction. Nevertheless, the price per share to be received by holders no private letter ruling or opinion of the Company’s Common Stock) pursuant to counsel is being sought in this regard and such tax treatment is not a condition of Merger Transaction, or (ii) the Company shall repay the outstanding aggregate principal amount of this Note plus all accrued but unpaid interest thereon and all other amounts owing hereunder immediately prior to or concurrently with the closing of the Merger Transaction. The Majority Holders shall give the Company and the Lender notice of their intent to proceed under Section 2(b)(i) or 2(b)(ii) within two (2) business days prior to the Closing Date, and if no such notice is given, the Majority Holders will be deemed to have elected to proceed under Section 2(b)(ii)hereunder.