Limitation on Transactions with Affiliates. The Company will not, and will not permit any of its Subsidiaries to, directly or indirectly, enter into any transaction or series of related transactions (including, without limitation, the sale, purchase, exchange or lease of assets, property or services) with or for the benefit of any Affiliate of the Company (other than the Company or a Wholly Owned Subsidiary) unless such transaction or series of related transactions is entered into in good faith and in writing and (a) such transaction or series of related transactions is on terms that are no less favorable to the Company or such Subsidiary, as the case may be, than those that would be reasonably expected to be available in a comparable transaction in arm's-length dealings with an unrelated third party, (b) with respect to any transaction or series of related transactions involving aggregate value in excess of $3 million, the Company delivers an Officers' Certificate to the Trustee certifying that such transaction or series of related transactions complies with clause (a) above, and (c) with respect to any transaction or series of related transactions involving aggregate value in excess of $7 million, either (A) such transaction or series of related transactions has been approved by a majority of the Disinterested Directors of the Company, or in the event there is only one Disinterested Director, by such Disinterested Director, or (B) the Company delivers to the Trustee a written opinion of an investment banking firm of national standing or other recognized independent expert with experience appraising the terms and conditions of the type of transaction or series of related transactions for which an opinion is required stating that the transactions or series of related transactions is fair to the Company or such Subsidiary from a financial point of view; provided, however, that this provision shall not apply to: (a) compensation and employee benefit arrangements with any officer, director or employee of the Company, including under any stock option or stock incentive plans, in the ordinary course of business; (b) any transaction solely between or among the Company and/or any Subsidiaries, if such transaction is otherwise in compliance with the Indenture and is on fair and reasonable terms; (c) any transaction otherwise permitted by the terms of the section of the Indenture described in Section 1009; (d) the execution and delivery of or payments made under any tax sharing agreement between or among any of the Company and any Subsidiary; (e) licensing or sublicensing of use of any intellectual property by the Company or any Subsidiary to any Subsidiary of the Company; provided that the licensor shall continue to have access to such intellectual property to the extent necessary for the conduct of its respective business; (f) arrangements between the Company and any Subsidiary of the Company for the purpose of providing services or employees to such Subsidiary; (g) any transaction entered into for the purpose of granting or altering registration rights with respect to the Capital Stock of the Company; and (h) any transaction or series of related transactions entered into prior to the date hereof.
Appears in 1 contract
Sources: Indenture (Concentric Network Corp)
Limitation on Transactions with Affiliates. (a) The Company will not, and will not permit any of its Subsidiaries Restricted Subsidiary to, directly or indirectly, enter into or conduct any transaction or series of related transactions (includingincluding the purchase, without limitation, the sale, purchase, lease or exchange or lease of assets, any property or servicesthe rendering of any service) with or for the benefit of any Affiliate of the Company (other than the Company or a Wholly Owned Subsidiaryan "Affiliate Transaction") unless such transaction or series of related transactions is entered into in good faith and in writing and (a) such transaction or series of related transactions is on terms (i) that taken as a whole are no less favorable to the Company or such Restricted Subsidiary, as the case may be, than those that would could be reasonably expected to be available in a comparable obtained at the time of such transaction in arm's-length dealings with a Person who is not such an unrelated third partyAffiliate and (ii) that, (b) with respect to any transaction or series of related transactions involving in the event such Affiliate Transaction involves an aggregate value amount in excess of $3 1.0 million, the Company delivers an Officers' Certificate to the Trustee certifying that such transaction or series of related transactions complies with clause (a) above, are not in writing and (cx) with respect to any transaction or series of related transactions involving aggregate value in excess of $7 million, either (A) such transaction or series of related transactions has have not been approved by a majority of the Disinterested Directors members of the CompanyBoard of Directors having no material personal financial interest in such Affiliate Transaction, or (y) in the event there is only one Disinterested Directorare no such members, by such Disinterested Director, or (B) as to which the Company delivers to has not obtained a Fairness Opinion (as hereinafter defined). In addition, any transaction involving aggregate payments or other transfers by the Trustee Company and its Restricted Subsidiaries in excess of $10.0 million will also require an opinion (a written opinion of "Fairness Opinion") from an independent investment banking firm or appraiser, as appropriate, of national standing or other recognized independent expert with experience appraising prominence, to the effect that the terms and conditions of such transaction taken as a whole are either (i) no less favorable to the type Company or such Restricted Subsidiary, as the case may be, than those that could be obtained at the time of such transaction in arm's-length dealings with a Person who is not an Affiliate or series of related transactions for which an opinion is required stating that the transactions or series of related transactions is (ii) fair to the Company or such Subsidiary Restricted Subsidiary, as the case may be, from a financial point of view; provided, however, that this provision .
(b) The provisions of Section 4.7(a) shall not apply to: prohibit (ai) compensation and employee benefit arrangements with any officerRestricted Payment permitted by Section 4.4, director any Permitted Investment, or employee any other transaction specifically excluded from the definition of the term "Restricted Payment", (ii) the performance of the Company, including 's or Restricted Subsidiary's obligations under any stock option employment contract, collective bargaining agreement, employee benefit plan, related trust agreement or stock incentive plans, any other similar arrangement heretofore or hereafter entered into in the ordinary course of business; , (biii) payment of compensation, performance of indemnification or contribution obligations, or any issuance, grant or award of stock, options or other securities, to employees, officers or directors in the ordinary course of business, (iv) maintenance in the ordinary course of business of benefit programs or arrangements for employees, officers or directors, including vacation plans, health and the insurance plans, deferred compensation plans, and retirement or savings plans and similar plans, (v) any transaction solely between or among the Company and/or any Subsidiaries, if such transaction is otherwise in compliance with the Indenture and is on fair and reasonable terms; (c) any transaction otherwise permitted by the terms of the section of the Indenture described in Section 1009; (d) the execution and delivery of or payments made under any tax sharing agreement between or among any of the Company and any Subsidiary; a Restricted Subsidiary or between Restricted Subsidiaries, (evi) licensing loans or sublicensing advances made to directors, officers or employees of use of any intellectual property by the Company or any Subsidiary to Restricted Subsidiary, or guarantees in respect thereof or otherwise made on their behalf (including any Subsidiary payments under such guarantees), (A) in respect of travel, entertainment or moving-related expenses incurred in the Company; provided that ordinary course of business, or (B) in the licensor shall continue to have access to such intellectual property to ordinary course of business not exceeding $500,000 in the extent necessary for aggregate outstanding at any time, (vii) guarantees of borrowings by Management Investors in connection with the conduct purchase of its respective business; (f) arrangements between the Company and any Subsidiary of the Company for the purpose of providing services or employees to such Subsidiary; (g) any transaction entered into for the purpose of granting or altering registration rights with respect to the Capital Stock of the Company by such Management Investors, which guarantees are permitted by Section 4.3, and payments thereunder, (viii) the Refinancing Transactions and the incurrence and payment of all fees and expenses payable in connection therewith, (ix) any other transaction arising out of agreements in existence on the Issue Date, (x) execution, delivery and performance of the Tax Sharing Agreement and the Management Agreements, including the ongoing payment of fees to GSCP of up to $1.75 million per year plus reasonable out of pocket expenses, (xi) any commercial or other business transaction in the ordinary course of business with any Permitted Holder or any Affiliate thereof, on terms that taken as a whole are no less favorable to the Company and its Restricted Subsidiaries than those that could be obtained at the time in arm's-length dealings with a Person who is not an Affiliate of the Company; and , (hxii) any transaction in the ordinary course of business, or series approved by a majority of related transactions entered into prior to the date hereofmembers of the Board of Directors having no material personal financial interest in such transaction, between the Company or any Restricted Subsidiary and any Affiliate of the Company controlled by the Company that is a joint venture or similar entity primarily engaged in a Related Business, and (xiii) any of the Refinancing Transactions.
Appears in 1 contract
Sources: Indenture (Telex Communications Intermediate Holdings LLC)
Limitation on Transactions with Affiliates. The Company will shall not, and will shall not permit any of its Restricted Subsidiaries to, directly or indirectly, enter into any transaction or series of related transactions (including, without limitation, the sale, transfer, disposition, purchase, exchange or lease of assets, property or services) with with, or for the benefit of, any of any Affiliate of the Company its Affiliates (other than the Company or a Wholly Owned Subsidiary) unless such transaction or series of related transactions is entered into in good faith and in writing and Restricted Subsidiaries), except (a) such transaction or series of related transactions is on terms that are no less favorable to the Company or such Restricted Subsidiary, as the case may be, than those that would be reasonably expected to be available which could have been obtained in a comparable transaction in arm's-length dealings with an unrelated third partyat such time from Persons who are not Affiliates of the Company, (b) with respect to any a transaction or series of related transactions involving aggregate payments or value in excess of equal to or greater than $3 million25,000,000, the Company delivers shall have delivered an Officers' Certificate to the Trustee certifying that such transaction or series of related transactions complies comply with the preceding clause (a) above, and (c) with respect to any transaction or series of related transactions involving aggregate value in excess of $7 million, either (A) that such transaction or series of related transactions has have been approved by a majority of the Disinterested Members of the Board of Directors of the Company, or in the event there is only one Disinterested Director, by such Disinterested Director, or Company and (Bc) the Company delivers with respect to the Trustee a written opinion of an investment banking firm of national standing or other recognized independent expert with experience appraising the terms and conditions of the type of transaction or series of related transactions for which 103 involving aggregate payments or value equal to or greater than $50,000,000 (other than agreements whereby the Company or a Restricted Subsidiary of the Company obtains or grants a license or other rights to broadcast sporting events or syndicated entertainment programs in the ordinary course of business), the Company shall have obtained a written opinion from an opinion is required Independent Financial Advisor stating that the transactions terms of such transaction or series of related transactions is fair to the Company or such Subsidiary are fair, from a financial point of view; provided, howeverto the Company or the Restricted Subsidiary involved, that as the case may be. Notwithstanding the foregoing, the restrictions set forth in this provision covenant shall not apply to: to (ai) transactions with or among the Company and the Restricted Subsidiaries of the Company, (ii) customary directors' fees, indemnification and similar arrangements, consulting fees, employee salaries, bonuses or employment agreements, compensation and or employee benefit arrangements and incentive arrangements with any officer, director or employee of the Company, including under Company or any stock option or stock incentive plans, Restricted Subsidiary entered into in the ordinary course of business; , (biii) any transaction solely between or among the Company and/or any Subsidiaries, if such transaction is otherwise Restricted Payments paid in compliance with the Indenture Section 10.9 of this Indenture, (iv) Permitted Investments, (v) loans and is on fair advances to officers, directors and reasonable terms; (c) any transaction otherwise permitted by the terms employees of the section of the Indenture described in Section 1009; (d) the execution and delivery of or payments made under any tax sharing agreement between or among any of the Company and any Subsidiary; (e) licensing or sublicensing of use of any intellectual property by the Company or any Restricted Subsidiary for travel, entertainment, moving and other relocation expenses, in each case made in the ordinary course of business, (vi) transactions pursuant to any Subsidiary of the Company; provided that the licensor shall continue to have access to such intellectual property to the extent necessary for the conduct of its respective business; (f) arrangements between the Company and any Subsidiary of the Company for the purpose of providing services or employees to such Subsidiary; (g) any transaction entered into for the purpose of granting or altering registration rights with respect to the Capital Stock of the Company; and (h) any transaction or series of related transactions entered into prior to agreements existing on the date hereofof this Indenture or (vii) the incurrence of intercompany Indebtedness which constitutes Permitted Indebtedness.
Appears in 1 contract
Sources: Indenture (FLN Finance Inc)
Limitation on Transactions with Affiliates. (a) The Company will Parent shall not, and will shall not permit any of its Restricted Subsidiaries to, directly or indirectly, enter into any transaction or series of related transactions (including, without limitation, the purchase, sale, purchase, lease or exchange or lease of assets, any property or servicesthe rendering of any service) with with, or for the benefit of, any of any its Affiliates (each an “Affiliate Transaction”), involving aggregate payment of consideration in excess of $5.0 million other than:
(i) Affiliate Transactions permitted pursuant to Section 4.11(c); and
(ii) Affiliate Transactions on terms that, in the good faith judgment of the Company (other than Parent or the Company or a Wholly Owned applicable Restricted Subsidiary) unless such transaction or series of related transactions is entered into in good faith and in writing and (a) such transaction or series of related transactions is on terms that , are no less favorable to than those that might reasonably have been obtained in a comparable transaction at such time on an arm’s-length basis from a Person that is not an Affiliate of the Company Parent or such Subsidiary.
(b) All Affiliate Transactions (and each series of related Affiliate Transactions which are similar or part of a common plan) involving aggregate payments or other property with a Fair Market Value in excess of $15.0 million shall be approved by the Board of Directors of the Parent or such Subsidiary, as the case may be, than those that would be reasonably expected such approval to be available in evidenced by a comparable transaction in arm's-length dealings with an unrelated third party, (b) with respect to any transaction or series Board Resolution stating that such Board of related transactions involving aggregate value in excess of $3 million, the Company delivers an Officers' Certificate to the Trustee certifying Directors has determined that such transaction or series of related transactions complies with clause the provisions of Section 4.11(a).
(c) The restrictions set forth in Sections 4.11 (a) aboveand 4.11(b) shall not apply to:
(i) any employment or consulting agreement, and (c) with respect to employee or director benefit plan, officer or director compensation or indemnification agreement or any transaction similar arrangement entered into by the Parent or series any of related transactions involving aggregate value its Restricted Subsidiaries in excess the ordinary course of $7 million, either (A) such transaction business or series approved in good faith by the Board of related transactions has been approved by a majority of the Disinterested Directors of the CompanyParent and payments pursuant thereto and the issuance of Equity Interests of the Parent (other than Disqualified Capital Stock) to directors, employees and consultants pursuant to stock option or stock ownership, bonus or benefit plans;
(ii) transactions between or among the Parent and any of its Restricted Subsidiaries or between or among such Restricted Subsidiaries;
(iii) transactions between the Parent or one of its Restricted Subsidiaries and any Person in which the Parent or one of its Restricted Subsidiaries has made an Investment in the ordinary course of business and such Person is an Affiliate solely because of such Investment;
(iv) transactions between the Parent or one of its Restricted Subsidiaries and any Person in which the Parent or one of its Restricted Subsidiaries holds an interest as a joint venture partner and such Person is an Affiliate solely because of such interest;
(v) any agreement or arrangement as in effect as of the Issue Date or any amendment or replacement agreement thereto or any transactions or payments contemplated thereby (including pursuant to any amendment or replacement agreement thereto) so long as any such amendment or replacement agreement is not more disadvantageous to the Holders in any material respect than the original agreement as in effect on the Issue Date (as determined by the Parent in good faith);
(vi) an agreement between a Person and an Affiliate of such Person existing at the time such Person is acquired by, or merged into, the Parent or a Restricted Subsidiary and not entered into in contemplation of such acquisition or merger;
(vii) Restricted Payments or Permitted Investments (other than pursuant to clause (1), (3) or (16) thereunder) permitted by this Indenture;
(viii) sales of Qualified Capital Stock by the event there is only one Disinterested Director, by such Disinterested DirectorParent or any Restricted Subsidiary and capital contributions to the Parent from Affiliates;
(ix) the existence of, or (B) the Company delivers to performance by the Trustee a written opinion Parent or any of an investment banking firm its Restricted Subsidiaries of national standing or other recognized independent expert with experience appraising its obligations under the terms and conditions of, any stockholders’ agreement (including any registration rights agreement or purchase agreement related thereto) to which it is a party as of the type of transaction or series of related transactions for Issue Date and any similar agreements which an opinion is required stating that the transactions or series of related transactions is fair to the Company or such Subsidiary from a financial point of viewit may enter into thereafter; provided, however, that the existence of, or the performance by the Parent or any of its Restricted Subsidiaries of obligations under any future amendment to any such existing agreement or under any similar agreement entered into after the Issue Date shall only be permitted by this provision shall clause (ix) to the extent that the terms of any such amendment or new agreement, taken as a whole, are not apply to: (a) compensation and employee benefit arrangements with any officer, director or employee disadvantageous to the Holders of the CompanyNotes in any material respect (as determined by the Parent in good faith);
(x) transactions in which the Parent or any Restricted Subsidiary of the Parent, including under any stock option as the case may be, receives an opinion from a nationally recognized investment banking, appraisal or stock incentive plansaccounting firm that such Affiliate Transaction is fair, from a financial standpoint, to the Parent or such Restricted Subsidiary;
(xi) (A) the provision of mortgage servicing, mortgage loan origination, real estate logistics, brokerage and management and similar services to Affiliates in the ordinary course of business; business and otherwise not prohibited by this Indenture that are fair to the Parent and its Restricted Subsidiaries (bas determined by the Parent in good faith) any transaction solely between or among are on terms at least as favorable as might reasonably have been obtained at such time from an unaffiliated party (as determined by the Company and/or any SubsidiariesParent in good faith), if such transaction is and (B) transactions with customers, clients, suppliers, vendors, contractors, joint venture partners or purchasers or sellers of assets or services that are Affiliates, in each case in the ordinary course of business and otherwise in compliance with the terms of this Indenture that are fair to the Parent and is its Restricted Subsidiaries or are on fair and reasonable terms; terms at least as favorable as might reasonably have been obtained at such time from an unaffiliated party (c) any transaction otherwise permitted as determined by the terms Parent in good faith);
(xii) Co-Investment Transactions;
(xiii) payroll, travel, relocation and similar advances to cover matters that are expected at the time of such advances ultimately to be treated as expenses for accounting purposes and that are made in the section ordinary course of the Indenture described business consistent with industry practice; and
(xiv) sales of accounts receivable, or participations therein, or Securitization Assets or related assets in Section 1009; (d) the execution and delivery of connection with any Permitted Securitization Indebtedness or payments made under any tax sharing agreement between or among any of the Company and any Subsidiary; (e) licensing or sublicensing of use of any intellectual property by the Company or any Subsidiary to any Subsidiary of the Company; provided that the licensor shall continue to have access to such intellectual property to the extent necessary for the conduct of its respective business; (f) arrangements between the Company and any Subsidiary of the Company for the purpose of providing services or employees to such Subsidiary; (g) any transaction entered into for the purpose of granting or altering registration rights with respect to the Capital Stock of the Company; and (h) any transaction or series of related transactions entered into prior to the date hereofPermitted Funding Indebtedness.
Appears in 1 contract
Sources: Indenture (Ocwen Financial Corp)
Limitation on Transactions with Affiliates. (a) The Company will shall not, and will shall not permit any of its Subsidiaries Restricted Subsidiary to, directly or indirectly, conduct any business or enter into or suffer to exist any transaction or series of related transactions (includingincluding the purchase, without limitation, the sale, purchasetransfer, lease or exchange of any Property or lease the rendering of assetsany service) with, property or services) with or for the benefit of of, any Affiliate of the Company (other than the Company or a Wholly Owned Subsidiaryan "Affiliate Transaction") unless (i) the terms of such transaction or series of related transactions is entered into Affiliate Transaction are in good faith and in writing and writing, (aii) such transaction or series Affiliate Transaction is in the best interest of related transactions is on terms that are no less favorable to the Company or such Restricted Subsidiary, as the case may be, than (iii) such Affiliate Transaction is on terms as favorable to the Company or such Restricted Subsidiary, as the case may be, as those that would could be reasonably expected to be available in obtained at the time of such Affiliate Transaction for a comparable similar transaction in arm's-length arms'-length dealings with a Person who is not such an unrelated third party, Affiliate and (biv) with respect to any transaction or series of related transactions each Affiliate Transaction involving aggregate value payments in excess of $3 50 million, the Company delivers to the Trustee an opinion letter from an Independent Appraiser to the effect that the consideration to be paid or received in connection with such Affiliate Transaction is fair from a financial point of view, to the Company or such Restricted Subsidiary, as the case may be, and an Officers' Certificate to the Trustee certifying that such transaction or series of related transactions complies with clause (a) above, and (c) with respect to any transaction or series of related transactions involving aggregate value in excess of $7 million, either (A) such transaction or series of related transactions has been Affiliate Transaction was approved by a majority of the Disinterested Board of Directors of the Company, or in the event there is only one Disinterested Director, by such Disinterested Director, or (B) the Company delivers to the Trustee a written opinion of an investment banking firm of national standing or other recognized independent expert with experience appraising the terms and conditions of the type of transaction or series of related transactions for which an opinion is required stating that the transactions or series of related transactions is fair to the Company or such Subsidiary from a financial point of view; provided, however, that this provision shall not apply to: (a) compensation and employee benefit arrangements with any officer, director or employee of the Company, including under any stock option or stock incentive plans, in the ordinary course of business; (b) any transaction solely between or among the Company and/or any Subsidiaries, if such transaction is otherwise in compliance with the Indenture and is on fair and reasonable terms; (c) any transaction otherwise permitted by the terms of the section of the Indenture described in Section 1009; (d) the execution and delivery of or payments made under any tax sharing agreement between or among any of the Company and any Subsidiary; that such Affiliate Transaction complies with clauses (eii) licensing or sublicensing and (iii) of use of any intellectual property by this Section 4.06
(b) Notwithstanding Section 4.06(a), the Company may enter into or suffer to exist the following: (i) any Subsidiary transaction pursuant to any Subsidiary of contract in existence on the Company; provided that the licensor shall continue to have access to such intellectual property to the extent necessary Issue Date, including contracts for the conduct acquisition of its respective business; (f) arrangements between cable television programming and renewals, extensions and replacements thereof on terms no less favorable to the Company and any Subsidiary of its Restricted Subsidiaries than those contained in such contracts on the Company for the purpose of providing services or employees to such SubsidiaryIssue Date; (gii) any transaction entered into for the purpose of granting or altering registration rights with respect Restricted Payment permitted to the Capital Stock of the Companybe made pursuant to Section 4.05; and (hiii) any transaction or series of related transactions entered into prior between the Company and one or more of its Restricted Subsidiaries or between two or more of its Restricted Subsidiaries (provided that no more than 5% of the equity interest in any such Restricted Subsidiary is owned by an Affiliate); and (iv) the payment of compensation (including amounts paid pursuant to employee benefit plans) for the date hereofpersonal services of officers, directors and employees of the Company or any of its Restricted Subsidiaries, so long as the Board of Directors in good faith shall have approved the terms thereof and deemed the services theretofore or thereafter to be performed for such compensation or fees to be fair consideration therefor.
Appears in 1 contract
Limitation on Transactions with Affiliates. The Company will Cedar Fair shall not, and will shall not permit any of its Subsidiaries Restricted Subsidiary to, directly or indirectly, sell, lease, transfer or otherwise dispose of any of Cedar Fair’s or their properties or assets to, or purchase any property or assets from, or enter into any contract, agreement, understanding, loan, advance or guarantee with, or for the benefit of, any Affiliate (including any Unrestricted Subsidiary) (each of the foregoing, an “Affiliate Transaction”) involving aggregate consideration in excess of $10.0 million, unless such Affiliate Transaction is on terms that are not materially less favorable, taken as a whole, to Cedar Fair or such Restricted Subsidiary than those that would have been obtained in a comparable transaction by Cedar Fair or series such Restricted Subsidiary with an unrelated Person; provided that such transaction shall be deemed to be at least as favorable as the terms that could have been obtained in a comparable transaction with an unrelated Person if such transaction is approved by the members of related transactions (x) Cedar Fair’s Board of Directors or (y) any duly constituted committee thereof, in each case including a majority of the disinterested members thereof who meet the independence requirements of the New York Stock Exchange or NASDAQ; provided, however, that the following shall, in each case, not be deemed Affiliate Transactions:
(i) the entry into employment agreements and the adoption of compensation or benefit plans for the benefit of, or the payment of compensation to, directors and management of Cedar Fair and its Restricted Subsidiaries (including, without limitation, salaries, fees, bonuses, equity and incentive arrangements and payments);
(ii) the salepayment of reasonable fees or expenses and the provision of indemnification or similar arrangements for current or former officers, purchasedirectors, exchange employees, agents or lease consultants of assetsCedar Fair or any of its Restricted Subsidiaries pursuant to charter, property bylaw, statutory or servicescontractual provisions;
(iii) with transactions between or for the benefit among Cedar Fair and its Restricted Subsidiaries or between Restricted Subsidiaries;
(iv) Restricted Payments not prohibited by Section 4.07 hereof;
(v) any transactions between Cedar Fair or any of its Restricted Subsidiaries and any Affiliate of Cedar Fair the Company Equity Interests of which Affiliate are owned solely by Cedar Fair or one of its Restricted Subsidiaries, on the one hand, and by Persons who are not Affiliates of Cedar Fair or its Restricted Subsidiaries, on the other hand;
(other than vi) any agreements or arrangements in effect on the Company Issue Date and described or a Wholly Owned Subsidiary) unless such transaction incorporated by reference in the Offering Memorandum and any modifications, extensions or series of related transactions is entered into in good faith and in writing and (a) such transaction or series of related transactions is on terms renewals thereof that are no less favorable to Cedar Fair or the Company applicable Restricted Subsidiary in any material respect than such agreement as in effect on the Issue Date;
(vii) so long as they comply with clause (a) above, transactions with customers, clients, lessors, landlords, suppliers, contractors, or purchasers or sellers of goods or services that are Affiliates, in each case in the ordinary course of business and otherwise in compliance with the terms of this Indenture;
(viii) the Transactions;
(ix) transactions with Persons who are Affiliates of Cedar Fair solely as a result of Cedar Fair’s or a Restricted Subsidiary’s Investment in such SubsidiaryPerson;
(x) sales of Equity Interests to Affiliates of Cedar Fair or its Restricted Subsidiaries not otherwise prohibited by this Indenture and the granting of registration and other customary rights in connection therewith;
(xi) transactions with an Affiliate where the only consideration paid is Equity Interests of Cedar Fair other than Disqualified Stock;
(xii) transactions in which Cedar Fair or any of its Restricted Subsidiaries, as the case may be, than those that would be reasonably expected to be available in a comparable transaction in arm's-length dealings with an unrelated third party, (b) with respect to any transaction or series of related transactions involving aggregate value in excess of $3 million, the Company delivers an Officers' Certificate to the Trustee certifying that such transaction or series of related transactions complies with clause (a) above, and (c) with respect to any transaction or series of related transactions involving aggregate value in excess of $7 million, either (A) such transaction or series of related transactions has been approved by a majority of the Disinterested Directors of the Company, or in the event there is only one Disinterested Director, by such Disinterested Director, or (B) the Company delivers deliver to the Trustee a written opinion of letter from an investment banking firm of national standing or other recognized independent expert with experience appraising the terms and conditions of the type of transaction or series of related transactions for which an opinion is required Independent Financial Advisor stating that the transactions or series of related transactions such transaction is fair to the Company Cedar Fair or such Restricted Subsidiary from a financial point of viewview or meets the requirements of this covenant;
(xiii) transactions with joint ventures or Unrestricted Subsidiaries entered into in the ordinary course of business;
(xiv) loans or advances to employees or consultants in the ordinary course of business of Cedar Fair or its Restricted Subsidiaries, but in any event not to exceed $5.0 million in the aggregate outstanding at any one time; and
(xv) transactions between Cedar Fair or any of its Restricted Subsidiaries and any Person, a director of which is also a director of Cedar Fair; provided, however, that this provision shall not apply to: (a) compensation and employee benefit arrangements with such director abstains from voting as a director on any officer, director or employee of the Company, including under any stock option or stock incentive plans, in the ordinary course of business; (b) any transaction solely between or among the Company and/or any Subsidiaries, if matter involving such transaction is otherwise in compliance with the Indenture and is on fair and reasonable terms; (c) any transaction otherwise permitted by the terms of the section of the Indenture described in Section 1009; (d) the execution and delivery of or payments made under any tax sharing agreement between or among any of the Company and any Subsidiary; (e) licensing or sublicensing of use of any intellectual property by the Company or any Subsidiary to any Subsidiary of the Company; provided that the licensor shall continue to have access to such intellectual property to the extent necessary for the conduct of its respective business; (f) arrangements between the Company and any Subsidiary of the Company for the purpose of providing services or employees to such Subsidiary; (g) any transaction entered into for the purpose of granting or altering registration rights with respect to the Capital Stock of the Company; and (h) any transaction or series of related transactions entered into prior to the date hereofother Person.
Appears in 1 contract
Sources: Indenture (Cedar Fair L P)
Limitation on Transactions with Affiliates. The Company will not, and will not permit any of its Subsidiaries Restricted Subsidiary to, directly or indirectly, enter into or suffer to exist any transaction or series of related transactions (including, without limitation, the sale, purchase, exchange or lease of assets, property or services) with or for the benefit of any Affiliate of the Company (other than the Company or a Wholly Owned Restricted Subsidiary) unless such transaction or series of related transactions is entered into in good faith and in writing and (ai) such transaction or series of related transactions is on terms that are no less favorable to the Company or such Restricted Subsidiary, as the case may be, than those that would be reasonably expected to be available in a comparable transaction in arm's-length dealings with an unrelated third party, and (bii) (a) with respect to any transaction or series of related transactions involving aggregate value payments in excess of $3 million1,000,000, the Company delivers an Officers' Certificate to the Trustee certifying that such transaction or series of related transactions complies with clause (ai) above, above and (c) with respect to any transaction or series of related transactions involving aggregate value in excess of $7 million, either (A) such transaction or series of related transactions has been approved by a majority of the Disinterested members of the Board of Directors of the CompanyCompany (and approved by a majority of the Independent Directors or, or in the event there is only one Disinterested Independent Director, by such Disinterested Independent Director), and (b) with respect to any transaction or (B) series of transactions involving aggregate payments in excess of $5,000,000, an opinion as to the fairness to the Company delivers to the Trustee or such Restricted Subsidiary from a written opinion financial point of view issued by an investment banking firm of national standing or other recognized independent expert with experience appraising standing. Notwithstanding the terms and conditions of the type of transaction or series of related transactions for which an opinion is required stating that the transactions or series of related transactions is fair to the Company or such Subsidiary from a financial point of view; providedforegoing, however, that this provision shall will not apply to: to (ai) employment agreements or compensation and or employee benefit arrangements with any officer, director or employee of the Company, including under any stock option or stock incentive plans, Company entered into in the ordinary course of business; business (b) any transaction solely between or among the Company and/or any Subsidiariesincluding customary benefits thereunder), if such transaction is otherwise in compliance with the Indenture and is on fair and reasonable terms; (c) any transaction otherwise permitted by the terms of the section of the Indenture described in Section 1009; (d) the execution and delivery of or payments made under any tax sharing agreement between or among any of the Company and any Subsidiary; (e) licensing or sublicensing of use of any intellectual property by the Company or any Subsidiary to any Subsidiary of the Company; provided that the licensor shall continue to have access to such intellectual property to the extent necessary for the conduct of its respective business; (f) arrangements between the Company and any Subsidiary of the Company for the purpose of providing services or employees to such Subsidiary; (gii) any transaction entered into for by or among the purpose Company or one of granting its Wholly Owned Restricted Subsidiaries with one or altering registration rights more Wholly Owned Restricted Subsidiaries of the Company, and (iii) the national advertising representation agreements between the Company (or any of its Restricted Subsidiaries) and ▇▇▇▇ ▇▇▇▇▇, Inc. existing on the date of this Indenture (and any renewals, extensions or replacements thereof, and any future such agreements with respect to television stations acquired by the Capital Stock of the Company; and (h) any transaction Company or series of related transactions entered into prior to its Restricted Subsidiaries after the date hereofof this Indenture, so long as such renewals, extensions, replacements or future agreements are on terms substantially similar to those of such existing agreements) and other transactions in existence on the date of this Indenture and described or referred to in the Final Memorandum, under the caption "Certain Transactions."
Appears in 1 contract
Limitation on Transactions with Affiliates. The (a) Neither the Company nor any Subsidiary of the Company will not, and will not permit any of its Subsidiaries to, directly or indirectly, enter into any transaction or series of related transactions (including, without limitation, the sale, purchase, exchange or lease of assets, property or services) with or for the benefit of any of their Affiliates (each an "Affiliate of the Company (other than the Company or a Wholly Owned Subsidiary) unless such transaction or series of related transactions is entered into Transaction"), except in good faith and in writing and (a) such transaction or series of related transactions is on terms that are no less favorable to the Company or such Subsidiary, as the case may be, than those that would be reasonably expected to be available could have been obtained in a comparable transaction in on an arm's-length dealings with basis from a Person not an unrelated third party, Affiliate of the Company or such Subsidiary. All Affiliate Transactions (b) with respect to any transaction or and each series of related transactions Affiliate Transactions which are similar or part of a common plan) involving aggregate payments or other property with a fair market value in excess of $3 million, 1,000,000 shall be approved by the Board of Directors of the Company delivers (including a majority of the directors who are not affiliates of any Affiliate of the Company participating in the Affiliated Transactions in question), such approval to be evidenced by a Board Resolution stating that such Board of Directors has determined that such transaction complies with the foregoing provisions, and shall be certified by an officer of the Company as complying with the foregoing provisions such certification to be evidenced by an Officers' Certificate delivered to the Trustee certifying Holders. If the Company or any Subsidiary of the Company enters into an Affiliate Transaction (or a series of related Affiliate Transactions related to a common plan) that involves an aggregate fair market value of more than $2,500,000, the Company or such Subsidiary shall, prior to the consummation thereof, obtain a favorable opinion from an independent Financial Advisor (and deliver the same to the Holders) as to either the fairness of such transaction or series of related transactions complies with clause (a) aboveto the Company or the relevant Subsidiary, and (c) with respect to any transaction as the case may be, from a financial point of view or series of related transactions involving aggregate value in excess of $7 million, either (A) that such transaction or series of related transactions has been approved by a majority of the Disinterested Directors of the Company, or in the event there is only one Disinterested Director, by such Disinterested Director, or (B) the Company delivers to the Trustee a written opinion of an investment banking firm of national standing or other recognized independent expert with experience appraising the on terms and conditions of the type of transaction or series of related transactions for which an opinion is required stating that the transactions or series of related transactions is fair no less favorable to the Company or such Subsidiary Subsidiary, as the case may be, than those that could have been obtained in a comparable transaction on an arm's-length basis from a financial point Person not an Affiliate of view; provided, however, that this provision the Company or such Subsidiary.
(b) The foregoing restrictions shall not apply to: to (ai) the Cabot Stock Purchase; (ii) reasonable fees and compensation paid to and employee benefit arrangements with any officerindemnity provided on behalf of, director officers, directors, employees or employee consultants of the Company or any Subsidiary as determined in good faith by the Company, including under any stock option 's Board of Directors or stock incentive plans, in the ordinary course of businesssenior management; (biii) any transaction solely transactions exclusively between or among the Company and/or and any of its wholly owned Subsidiaries or exclusively between or among such wholly owned Subsidiaries, if ; provided such transaction is transactions are not otherwise prohibited by this Agreement; (iv) any Restricted Payment made in compliance with the Indenture and is on fair and reasonable terms; (c) Section 9.2 or any transaction otherwise other payment permitted by the terms second paragraph of the section of the Indenture described in Section 10099.2; (dv) any Permitted Investment; or (vi) the execution and delivery of or payments made under any tax sharing agreement between or among any of the Company and any Subsidiary; (e) licensing or sublicensing of use issuance of any intellectual property by the Company or any Subsidiary to any Subsidiary of the Company; provided that the licensor shall continue to have access to such intellectual property to the extent necessary for the conduct of its respective business; (f) arrangements between the Company and any Subsidiary of the Company for the purpose of providing services or employees to such Subsidiary; (g) any transaction entered into for the purpose of granting or altering registration rights with respect to the Qualified Capital Stock of the Company; and (h) Company to an Affiliate of the Company or the Incurrence of any transaction or series Indebtedness of related transactions entered into prior a Subsidiary to be owing to any Affiliate of the Company to the date hereofextent such Indebtedness was incurred under Section 9.3(b).
Appears in 1 contract
Sources: Note Purchase Agreement (Aearo Corp)
Limitation on Transactions with Affiliates. The Company will shall not, and will shall not permit any of its Restricted Subsidiaries to, directly or indirectly, enter into or suffer to exist any transaction or series of related transactions (including, without limitation, the sale, purchase, exchange or lease of assets, property or services) with or for the benefit of any Affiliate of the Company (other than the Company or a Wholly Owned SubsidiaryRestricted Subsidiary of the Company) unless such transaction or series of related transactions is entered into in good faith and in writing and (a) such transaction or series of related transactions is in writing on terms that are no less favorable to the Company or such Restricted Subsidiary, as the case may be, than those that would be reasonably expected to be available in a comparable transaction in arm's-arm's length dealings with an unrelated third party, party and (bb)(i) with respect to any transaction or series of related transactions involving aggregate value payments in excess of $3 million1,000,000, the Company delivers an Officers' Certificate to the Trustee certifying that such transaction or series of related transactions complies with clause (a) above, above and (c) with respect to any transaction or series of related transactions involving aggregate value in excess of $7 million, either (A) such transaction or series of related transactions has been approved by a majority of the Disinterested members of the Board of Directors of the CompanyCompany (and approved by a majority of Independent Directors or, or in the event there is only one Disinterested Independent Director, by such Disinterested Independent Director) and (ii) with respect to any transaction or series of transactions involving aggregate payments in excess of $5,000,000, or (B) an opinion as to the fairness to the Company delivers to the Trustee or such Restricted Subsidiary from a written opinion financial point of view issued by an investment banking firm of national standing standing. Notwithstanding the foregoing, this provision will not apply to (A) any transaction with an officer or other recognized independent expert with experience appraising the terms and conditions director of the type Company entered into in the ordinary course of transaction business (including compensation or series of related transactions for which an opinion is required stating that the transactions or series of related transactions is fair to the Company or such Subsidiary from a financial point of view; provided, however, that this provision shall not apply to: (a) compensation and employee benefit arrangements with any officer, officer or director or employee of the Company), including under any stock option or stock incentive plans, in the ordinary course of business; (b) any transaction solely between or among the Company and/or any Subsidiaries, if such transaction is otherwise in compliance with the Indenture and is on fair and reasonable terms; (c) any transaction otherwise permitted by the terms of the section of the Indenture described in Section 1009; (d) the execution and delivery of or payments made under any tax sharing agreement between or among any of the Company and any Subsidiary; (e) licensing or sublicensing of use of any intellectual property by the Company or any Subsidiary to any Subsidiary of the Company; provided that the licensor shall continue to have access to such intellectual property to the extent necessary for the conduct of its respective business; (f) arrangements between the Company and any Subsidiary of the Company for the purpose of providing services or employees to such Subsidiary; (gB) any transaction entered into for by the purpose Company or one of granting or altering registration rights its Wholly Owned Restricted Subsidiaries with respect to the Capital Stock a Wholly Owned Restricted Subsidiary of the Company; , (C) transactions in existence on the date of this Indenture and any renewal, replacement or extension thereof on substantially similar terms and (hD) any transaction or series of related transactions entered into prior to the date hereofPermitted Payment.
Appears in 1 contract
Limitation on Transactions with Affiliates. (a) The Company will shall not, and will shall not permit any of its Restricted Subsidiaries to, directly or indirectly, enter into or permit to exist any transaction or series of related transactions (including, without limitation, the purchase, sale, purchase, lease or exchange or lease of assets, any property or servicesthe rendering of any service) with with, or for the benefit of, any of any its Affiliates (each an "Affiliate of the Company (Transaction"), other than (x) Affiliate Transactions permitted under paragraph (b) below and (y) Affiliate Transactions conducted in good faith, the terms of which are fair and reasonable to the Company or a Wholly Owned Subsidiary) unless such transaction or series of related transactions is entered into in good faith Restricted Subsidiary and in writing and (a) such transaction or series of related transactions is on terms that which are no less favorable to the Company or such Restricted Subsidiary than those that might reasonably have been obtained in a comparable transaction at such time on an arm's-length basis from a Person that is not an Affiliate of the Company or such Restricted Subsidiary. All Affiliate Transactions (and each series of related Affiliate Transactions which are similar or part of a common plan) involving aggregate payments or other property with a fair market value in excess of $500,000 shall be approved by the Board of Directors of the Company or such Restricted Subsidiary, as the case may be, than those that would be reasonably expected such approval to be available in evidenced by a comparable Board Resolution stating that such Board of Directors has determined that such transaction in arm's-length dealings complies with the foregoing provisions. If the Company or any Restricted Subsidiary of the Company enters into an unrelated third party, Affiliate Transaction (b) with respect to any transaction or a series of related transactions involving Affiliate Transactions related to a common plan) that involves an aggregate fair market value in excess or payments to an Affiliate, as the case may be, of more than $3 million2,500,000, the Company delivers an Officers' Certificate or such Restricted Subsidiary, as the case may be, shall, prior to the Trustee certifying that consumma- tion thereof, obtain a favorable opinion as to the fairness of such transaction or series of related transactions complies with clause (a) above, and (c) with respect to any transaction or series of related transactions involving aggregate value in excess of $7 million, either (A) such transaction or series of related transactions has been approved by a majority of the Disinterested Directors of the Company, or in the event there is only one Disinterested Director, by such Disinterested Director, or (B) the Company delivers to the Trustee a written opinion of an investment banking firm of national standing or other recognized independent expert with experience appraising the terms and conditions of the type of transaction or series of related transactions for which an opinion is required stating that the transactions or series of related transactions is fair to the Company or such Subsidiary the relevant Restricted Subsidiary, as the case may be, from a financial point of view; provided, however, that this provision from an Independent Financial Advisor and file the same with the Trustee.
(b) The foregoing restrictions shall not apply to: to (ai) reasonable fees, compensation and employee benefit arrangements with any officerout-of-pocket expenses paid to and indemnity provided on behalf of, director officers, directors, employees or employee consultants of the Company or any Restricted Subsidiary of the Company as determined in good faith by the Company, including under any stock option 's Board of Directors or stock incentive plans, in the ordinary course of businesssenior management; (bii) any transaction solely transactions between or among the Company and/or and any Subsidiaries, if such transaction is otherwise in compliance with the Indenture and is on fair and reasonable terms; (c) any transaction otherwise permitted by the terms of the section of the Indenture described in Section 1009; (d) the execution and delivery of its Restricted Subsidiaries or payments made under any tax sharing agreement exclusively between or among any of the Company and any Subsidiarysuch Restricted Subsidiaries, provided that such transactions are not otherwise prohibited by this Indenture; (eiii) licensing or sublicensing of use of any intellectual property by the Company or any Subsidiary to any Subsidiary of the Company; provided that the licensor shall continue to have access to such intellectual property to the extent necessary for the conduct of its respective business; (f) arrangements agreement between the Company and any Subsidiary ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ Securities Corporation as in effect as of the Company for Issue Date or any amendment thereto or any transaction contemplated thereby (including pursuant to any amendment thereto) in any replacement agreement thereto so long as any such amendment or replacement agreement is not more disadvantageous to the purpose of providing services or employees to such SubsidiaryHolders in any material respect than the original agreement as in effect on the Issue Date; (giv) any transaction entered into for the purpose of granting or altering registration rights with respect to the Capital Stock of the CompanyRestricted Payments and Permitted Investments permitted by this Indenture; and (hv) any transaction or series of related transactions entered into prior to the date hereofPermitted Holdings Payment.
Appears in 1 contract
Sources: Securities Purchase Agreement (Wilson Greatbatch Technologies Inc)
Limitation on Transactions with Affiliates. The Company will Parent shall not, and will shall not permit any of its Subsidiaries toRestricted Subsidiary to enter into, amend or suffer to exist, directly or indirectly, enter into any transaction or series of related transactions (including, without limitation, the sale, purchase, exchange or lease of assets, property or services) with with, or for the benefit of of, any Affiliate of the Company Parent or any Restricted Subsidiary unless (other than the Company or a Wholly Owned Subsidiary) unless such transaction or series of related transactions is entered into in good faith and in writing and (ai) such transaction or series of related transactions is are on terms that are no less favorable to the Company Parent, or such Restricted Subsidiary, as the case may be, than those that would be reasonably expected to be available could have been obtained in a comparable transaction in an arm's-length dealings transaction with an unrelated third partyparties who are not Affiliates, (bii) with respect to any transaction or series of related transactions involving aggregate value consideration equal to or greater than (euro)5.0 million (or, to the extent not denominated in excess of $3 millionEuros, the Company delivers Euro equivalent thereof), Parent shall deliver an Officers' Officer's Certificate to the Trustee certifying that such transaction or series of related transactions complies with clause (ai) above, and (ciii) with respect to any transaction or series of related transactions involving including aggregate value consideration in excess of $7 million(euro)10.0 million (or, either to the extent not denominated in Euros, the Euro equivalent thereof), Parent shall deliver the Officer's Certificate described in clause (Aii) above which shall also certify that such transaction or series of related transactions has been approved by a majority of the Disinterested Directors Members of the Company, Management Board or in the event there is only one Disinterested Director, by such Disinterested Director, or (B) the Company delivers to the Trustee that Parent has obtained a written opinion of an from a nationally recognized U.S. investment banking firm of national standing or other recognized independent expert with experience appraising the terms and conditions of the type of certifying that such transaction or series of related transactions for which an opinion is required stating that the transactions or series of related transactions is fair to the Company Parent or such Subsidiary Restricted Subsidiary, as the case may be, from a financial point of view; and (iv) with respect to any transaction or series of related transactions including aggregate consideration in excess of (euro)15.0 million (or, to the extent not denominated in Euros, the Euro equivalent thereof), Parent shall deliver the Officer's Certificate described in clause (ii) above which shall also certify that Parent has obtained a written opinion from a nationally recognized U.S. investment banking firm certifying that such transaction or series of related transactions is fair to Parent or such Restricted Subsidiary, as the case may be, from a financial point of view provided, however, that this provision shall will not apply to: restrict (a) compensation and employee benefit arrangements with any officer, director or employee of the Company, including under any stock option or stock incentive plans, in the ordinary course of business; (b) any transaction solely between or among the Company and/or any Subsidiaries, if such transaction is otherwise in compliance with the Indenture and is on fair and reasonable terms; (c) any transaction otherwise permitted by the terms of the section of the Indenture described in Section 1009; (d) the execution and delivery of or payments made under any tax sharing agreement between or among any of the Company and any Subsidiary; (e) licensing or sublicensing of use of any intellectual property by the Company or any Subsidiary to any Subsidiary of the Company; provided that the licensor shall continue to have access to such intellectual property to the extent necessary for the conduct of its respective business; (f) arrangements between the Company and any Subsidiary of the Company for the purpose of providing services or employees to such Subsidiary; (g) any transaction entered into for the purpose of granting or altering registration rights with respect to the Capital Stock of the Company; and (h1) any transaction or series of related transactions among Parent and Restricted Subsidiaries or among Restricted Subsidiaries, (2) Investments in Qualified Capital Stock of Parent by any Person, including an Affiliate of Parent, (3) any other transaction pursuant to contractual arrangements existing on the date of this Indenture (the "Existing Affiliate Agreements"), (4) Parent from paying reasonable and customary regular compensation and fees to directors of Parent or any Restricted Subsidiary who are not employees of Parent or any Restricted Subsidiary, (5) Parent or any Restricted Subsidiary from making any Restricted Payment in compliance with Section 9.10, or (6) Parent from entering into any customary and reasonable employment and consulting agreements which have been approved by a majority of the Disinterested Members of the Management Board or (7) transactions between Parent or any Restricted Subsidiary and any holder of less than 10.0% of the outstanding Voting Stock of Parent entered into prior to in the date hereofordinary course of business.
Appears in 1 contract
Sources: Senior Secured Euro Notes Indenture (Netia Holdings Sa)
Limitation on Transactions with Affiliates. (a) The Company will shall not, and will shall not permit any of its Restricted Subsidiaries to, directly or indirectly, enter into or permit to exist any transaction or series of related transactions (including, without limitation, the purchase, sale, purchase, lease or exchange or lease of assets, any property or servicesthe rendering of any service) with with, or for the benefit of, any of any its Affiliates involving aggregate payments or other property with a Fair Market Value in excess of $5,000,000 (each, an “Affiliate Transaction”), other than (1) Affiliate Transactions permitted under Section 4.07(b) and (2) Affiliate Transactions on terms that are not materially less favorable than those that might reasonably have been obtained in a comparable transaction at such time on an arm’s-length basis from a Person that is not an Affiliate of the Company or such Restricted Subsidiary. All Affiliate Transactions (other than the Company or a Wholly Owned Subsidiary) unless such transaction or and each series of related transactions is entered into in good faith and in writing and (a) such transaction or series of related transactions is on terms Affiliate Transactions that are no less favorable to the Company similar or such Subsidiary, as the case may be, than those that would be reasonably expected to be available in part of a comparable transaction in arm's-length dealings with an unrelated third party, (bcommon plan) with respect to any transaction or series of related transactions involving aggregate value payments or other property with a Fair Market Value in excess of $3 million, the Company delivers an Officers' Certificate to the Trustee certifying that such transaction or series of related transactions complies with clause (a) above, and (c) with respect to any transaction or series of related transactions involving aggregate value in excess of $7 million, either (A) such transaction or series of related transactions has been 10,000,000 shall be approved by a majority of the Disinterested non-employee directors of the Board of Directors of the CompanyCompany disinterested with respect to such Affiliate Transaction, or in the event there is only one Disinterested Director, such approval to be evidenced by such Disinterested Director, or (B) the Company delivers to the Trustee a written opinion of an investment banking firm of national standing or other recognized independent expert with experience appraising the terms and conditions of the type of transaction or series of related transactions for which an opinion is required Board Resolution stating that such disinterested non-employee directors have in good faith determined that such transaction complies with the transactions or series of related transactions is fair to the Company or such Subsidiary from a financial point of view; provided, however, that this provision foregoing provisions.
(b) The restrictions set forth in Section 4.07(a) shall not apply to: :
(a1) reasonable fees and compensation paid to, and employee benefit arrangements with any officerindemnity provided on behalf of, director officers, directors, employees or employee consultants of the Company or any Restricted Subsidiary of the Company as determined in good faith by the Company, including under any stock option ’s Board of Directors or stock incentive plans, in the ordinary course of business; senior management;
(b2) any transaction solely transactions between or among the Company and/or and any Subsidiaries, if such transaction is otherwise in compliance with the Indenture and is on fair and reasonable terms; (c) any transaction otherwise permitted by the terms of the section of the Indenture described in Section 1009; (d) the execution and delivery of its Restricted Subsidiaries or payments made under any tax sharing agreement between or among any of the Company and any Subsidiary; (e) licensing or sublicensing of use of any intellectual property by the Company or any Subsidiary to any Subsidiary of the CompanyRestricted Subsidiaries; provided that such transactions are not otherwise prohibited by this Indenture;
(3) any agreement as in effect as of the licensor shall continue Issue Date or any amendment thereto or any transaction contemplated thereby (including pursuant to have access to any amendment thereto) in any replacement agreement thereto so long as any such intellectual property amendment or replacement agreement is not more disadvantageous to the extent necessary for Holders in any material respect than the conduct of its respective business; (f) arrangements between original agreement as in effect on the Company and any Subsidiary of the Company for the purpose of providing services or employees to such Subsidiary; (g) any transaction entered into for the purpose of granting or altering registration rights with respect to the Capital Stock of the Company; and (h) any transaction or series of related transactions entered into prior to the date hereof.Issue Date;
Appears in 1 contract
Sources: Indenture (LSB Industries Inc)
Limitation on Transactions with Affiliates. The Company will shall not, and will shall not permit any of its Restricted Subsidiaries or any Permitted Entity (or any Subsidiary of such Permitted Entity) to, directly or indirectly, enter into any transaction into, consummate or series of related transactions (including, without limitation, the sale, purchase, exchange or lease of assets, property or services) with or for the benefit of suffer to exist any Affiliate Transaction, except for:
(i) Affiliate Transactions that, together with all related Affiliate Transactions, have an aggregate value of the Company not more than $2,000,000; provided that, (other than the Company or a Wholly Owned Subsidiarya) unless such transaction or series of related transactions is entered into are conducted in good faith and in writing and (a) such transaction or series of related transactions is on terms that are no less favorable to the Company or such Subsidiary, as the case may be, relevant Restricted Subsidiary than those that would be reasonably expected to be available have been obtained in a comparable transaction in at such time by the -57- Company or such Restricted Subsidiary on an arm's-length dealings with basis from a Person that is not an unrelated third party, Affiliate of the Company or such Restricted Subsidiary and (b) with respect to any transaction or series of related transactions involving aggregate value in excess of $3 million, the Company delivers shall have delivered to the Trustee an Officers' Certificate certifying to the Trustee certifying that such transaction or series of effect;
(ii) Affiliate Transactions that, together with all related transactions complies with clause (a) aboveAffiliate Transactions, and (c) with respect to any transaction or series of related transactions involving have an aggregate value in excess of not more than $7 million5,000,000; provided that, either (Ai) such transaction or series of related transactions has been approved by a majority of the Disinterested Directors Managers that are disinterested in such transaction (or, if none of the CompanyManagers is disinterested in such transaction, or a representative appointed by the Managers to make such determination, which representative, in the event there reasonable good faith judgment of a majority of the Managers, is only one Disinterested Director, disinterested in the transaction and is qualified to make such determination) determine that such transactions are conducted in good faith and on terms that are no less favorable to the Company or the relevant Restricted Subsidiary than those that would have been obtained in a comparable transaction at such time by the Company or such Disinterested Director, Restricted Subsidiary on an arm's-length basis from a Person that is not an Affiliate of the Company or such Restricted Subsidiary and (Bii) prior to entering into such transaction the Company shall have delivered to the Trustee an Officers' Certificate certifying to such effect; or
(iii) Affiliate Transactions for which the Company delivers to the Trustee a written opinion of an investment banking firm of national standing or other recognized independent expert with experience appraising the terms and conditions of the type of transaction or series of related transactions for which an opinion is required stating that as to the transactions or series of related transactions is fair fairness to the Company or such Restricted Subsidiary from a financial point of view; providedview issued by an accounting, howeverappraisal or investment banking firm of national standing. Notwithstanding the foregoing, that this provision the following shall be deemed not apply to: to be Affiliate Transactions:
(a) compensation and employee benefit arrangements with any officer, director or employee of the Company, including under any stock option or stock incentive plans, in the ordinary course of business; Restricted Payments permitted by Section 4.7;
(b) the Management Agreement and the Expense Reimbursement Agreement, in each case, as in effect on the Issue Date, without giving effect to any transaction solely amendment, supplement or modification thereof, and payment of the Management Distributions and the receipt of the Expense Reimbursements, respectively, thereunder;
(c) the non-exclusive licensing of any service mark or other trademarks of the Company or any Restricted Subsid▇▇▇▇ to an Affiliate or Affiliates of the Company or such Restricted Subsidiary; and
(d) transactions between or among the Company and/or any Subsidiaries, if such transaction is otherwise in compliance with the Indenture and is on fair and reasonable terms; (c) any transaction otherwise permitted by the terms of the section of the Indenture described in Section 1009; (d) the execution and delivery of or payments made under any tax sharing agreement between or among any of the Company and any Subsidiary; (e) licensing or sublicensing of use of any intellectual property by the Company or any Subsidiary to any Wholly Owned Subsidiary of the Company; provided that the licensor shall continue to have access to such intellectual property to the extent necessary for the conduct of its respective business; (f) arrangements between the Company and any Subsidiary of the Company for the purpose of providing services or employees to such Subsidiary; (g) any transaction entered into for the purpose of granting or altering registration rights with respect to the Capital Stock of the Company; and (h) any transaction or series of related transactions entered into prior to the date hereof.
Appears in 1 contract
Sources: Indenture (Majestic Star Casino LLC)
Limitation on Transactions with Affiliates. The Company will not, and will not permit any of its Restricted Subsidiaries to, directly or indirectly, enter into or suffer to exist any transaction or series of related transactions (including, without limitation, the sale, purchase, exchange or lease of assets, property or services) with or for the benefit of any Affiliate of the Company (other than or any beneficial owner of ten percent or more of any class of Capital Stock of the Company or a Wholly Owned Subsidiary) any Restricted Subsidiary unless such transaction or series of related transactions is entered into in good faith and in writing and (ai) such transaction or series of related transactions is on terms that are no less favorable to the Company or such Restricted Subsidiary, as the case may be, than those that would reasonably be reasonably expected to be available in a comparable transaction in arm'sarm’s-length dealings with an unrelated third party, and (bii) (a) with respect to any transaction or series of related transactions involving aggregate value payments in excess of $3 million5,000,000, the Company delivers an Officers' Officers Certificate to the Trustee certifying that such transaction or series of related transactions complies with clause (ai) above, above and (c) with respect to any transaction or series of related transactions involving aggregate value in excess of $7 million, either (A) such transaction or series of related transactions has been approved by a majority of the Disinterested Directors members of the CompanyBoard of Directors (and approved by a majority of the Independent Directors or, or in the event there is only one Disinterested Independent Director, by such Disinterested Independent Director), and (b) with respect to any transaction or (B) series of transactions involving aggregate payments in excess of $10,000,000, the Company delivers to the Trustee an opinion to the effect that such transaction or series of transactions is fair to the Company or such Restricted Subsidiary from a written opinion financial point of view issued by an investment banking firm of national standing or other nationally recognized independent expert with experience appraising accounting firm or appraisal firm. Notwithstanding the terms and conditions of the type of transaction or series of related transactions for which an opinion is required stating that the transactions or series of related transactions is fair to the Company or such Subsidiary from a financial point of view; providedforegoing, however, that this provision shall will not apply to: to (ai) employment agreements or compensation and or employee benefit arrangements or indemnification agreements or similar arrangements with any officer, director or employee of the Company, including under any stock option or stock incentive plans, Company entered into in the ordinary course of business; business (b) any transaction solely between or among the Company and/or any Subsidiariesincluding customary benefits thereunder), if such transaction is otherwise in compliance with the Indenture and is on fair and reasonable terms; (c) any transaction otherwise permitted by the terms of the section of the Indenture described in Section 1009; (d) the execution and delivery of or payments made under any tax sharing agreement between or among any of the Company and any Subsidiary; (e) licensing or sublicensing of use of any intellectual property by the Company or any Subsidiary to any Subsidiary of the Company; provided that the licensor shall continue to have access to such intellectual property to the extent necessary for the conduct of its respective business; (f) arrangements between the Company and any Subsidiary of the Company for the purpose of providing services or employees to such Subsidiary; (gii) any transaction entered into for by or among the purpose of granting Company or altering registration rights with respect any Restricted Subsidiary and one or more Restricted Subsidiaries, (iii) transactions pursuant to agreements existing on the Capital Stock of the Company; Issue Date and (hiv) any transaction or series of related transactions entered into prior to the date hereofRestricted Payments and Permitted Investments.
Appears in 1 contract
Sources: Indenture (Gray Television Inc)
Limitation on Transactions with Affiliates. The Neither the Company will notnor the Parent shall, and will not neither shall they permit any of its Subsidiaries Restricted Subsidiary to, enter into or suffer to exist, directly or indirectly, enter into any transaction or series of related transactions (including, without limitation, the sale, purchase, exchange or lease of assets, property or services) with with, or for the benefit of of, any Affiliate of the Parent, the Company or any Restricted Subsidiary (other than a Restricted Entity so long as no Affiliate of the Company or Parent (other than a Wholly Owned SubsidiaryRestricted Entity) shall beneficially own Capital Stock in such Restricted Entity) unless such transaction or series of related transactions is entered into in good faith and in writing and (ai) such transaction or series of related transactions is are on terms terms, taken as a whole, that are no less favorable to the Company Company, the Parent, or such Restricted Subsidiary, as the case may be, than those that would be reasonably expected to be available could have been obtained in a comparable an arm's length transaction in arm's-length dealings with an unrelated third party, parties that are not Affiliates; (bii) with respect to any transaction or series of related transactions involving aggregate value consideration equal to or greater than $5,000,000 (or the equivalent thereof in excess of $3 millionone or more foreign currencies), the Company delivers Parent will deliver an Officers' Certificate to the Trustee certifying that such transaction or series of related transactions complies with clause (ai) above, ; and (ciii) with respect to any transaction or series of related transactions involving aggregate value consideration in excess of $7 million10,000,000 (or the equivalent thereof in one or more foreign currencies), either the Parent will deliver the Officers' Certificates described in clause (Aii) above, which will also certify that such transaction or series of related transactions transaction has been approved by a majority of the Disinterested Directors of the CompanyBoard of Directors of the Parent, or in that the event there is only one Disinterested Director, by such Disinterested Director, or (B) the Company delivers to the Trustee Parent has obtained a written opinion from an independent financial expert certifying that the financial terms of an investment banking firm of national standing or other recognized independent expert with experience appraising the terms and conditions of the type of such transaction or series of related transactions for which an opinion is required stating that the transactions or series of related transactions is transactions, taken as a whole, are fair to the Company Company, the Parent, or such Subsidiary the Restricted Subsidiary, as the case may be, from a financial point of view; provided, however: PROVIDED, that this provision covenant shall not apply to: restrict (a) compensation and employee benefit arrangements with any officer, director or employee of the Company, including under any stock option or stock incentive plans, in the ordinary course of business; (b) any transaction solely between or among the Company and/or any Subsidiaries, if such transaction is otherwise in compliance with the Indenture and is on fair and reasonable terms; (c) any transaction otherwise permitted by the terms of the section of the Indenture described in Section 1009; (d) the execution and delivery of or payments made under any tax sharing agreement between or among any of the Company and any Subsidiary; (e) licensing or sublicensing of use of any intellectual property by the Company or any Subsidiary to any Subsidiary of the Company; provided that the licensor shall continue to have access to such intellectual property to the extent necessary for the conduct of its respective business; (f) arrangements between the Company and any Subsidiary of the Company for the purpose of providing services or employees to such Subsidiary; (g) any transaction entered into for the purpose of granting or altering registration rights with respect to the Capital Stock of the Company; and (h1) any transaction or series of related transactions entered into prior between the Company and the Parent, (2) any transaction or series of related transactions between either the Company or the Parent (as the case may be) and one or more of the Restricted Subsidiaries or between the Restricted Subsidiaries, (3) the Company or the Parent from paying reasonable and customary regular compensation and fees to directors of any Restricted Entity who are not employees of any Restricted Entity, (4) the performance of the Parent's obligations under the Stockholders' Agreement, dated as of March 30, 2000, among the Parent and the Investors named therein, as amended and supplemented from time to time or (5) the performance of the Company's obligations under the Investment and Stockholders' Agreement, dated as of October 31, 1997, among the Company, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ and the Investors named therein, as amended; the Investment and Stockholders' Agreement, dated as of August 28, 1995, by and among the Company and the Investors named therein; the Non-Qualified Stock Option Agreement, dated August 4, 1997, between the Company and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇; and the Employment Agreement, dated August 4, 1997, between the Company and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, in each case as amended through the Issue Date; PROVIDED that any amendments or modifications to the date hereof.terms of transactions described in this clause (5) will be (x) no less favorable to the Parent or the Company, as the case may be, than those that could have been obtained in an arm's length transaction with unrelated third parties who are not Affiliates and (y) approved by the Board of Directors of the Parent or the Company, as the case may be, (including a majority of the Disinterested Directors of the relevant Board of Directors)
Appears in 1 contract
Sources: Supplemental Indenture (Pathnet Telecommunications Inc)
Limitation on Transactions with Affiliates. The Company will shall not, and will shall not permit permit, cause or suffer any of its Subsidiaries Restricted Subsidiary to, directly conduct any business or indirectly, enter into any transaction (or series of related transactions (including, without limitation, the sale, purchase, exchange which are similar or lease part of assets, property or servicesa common plan) with or for the benefit of any Affiliate of their respective Affiliates or any beneficial holder of 10% or more of the Common Stock of the Company or any officer or director of the Company (other than each, an "Affiliate Transaction"), unless the Company or a Wholly Owned Subsidiary) unless such transaction or series terms of related transactions is entered into the Affiliate Transaction are set forth in good faith writing, and in writing are fair and (a) such transaction or series of related transactions is on terms that are no less favorable reasonable to the Company or such Restricted Subsidiary, as the case may be. Each Affiliate Transaction involving aggregate payments or other Fair Market Value in excess of $5,000,000 must be approved by a majority of the Disinterested Directors or by the Board of Directors, such approval to be evidenced by a Board Resolution stating that the Board of Directors has determined that such transaction or transactions comply with the foregoing provisions provided that, in lieu of such approval by the Disinterested Directors, the Company may obtain a written opinion from an Independent Financial Advisor stating that the terms of such Affiliate Transaction to the Company or the Restricted Subsidiary, as the case may be, than those that would be reasonably expected are fair from a financial point of view. In addition to be available in a comparable transaction in arm's-length dealings with an unrelated third partythe foregoing, (b) the Company shall obtain, with respect to any transaction or series of related transactions each Affiliate Transaction involving aggregate value in excess consideration of $3 million, 25,000,000 a written opinion from an Independent Financial Advisor stating that the terms of such Affiliate Transaction to the Company delivers an Officers' Certificate to or the Trustee certifying that such transaction or series Restricted Subsidiary, as the case may be, are fair from a financial point of related transactions complies with clause (a) aboveview. For purposes of this covenant but without limiting the requirements of the two preceding sentences, and (c) with respect to when any transaction or series of related transactions involving aggregate value in excess of $7 million, either (A) such transaction or series of related transactions has been Affiliate Transaction approved by a majority of the Disinterested Directors of the Company, or in the event there is only one Disinterested Director, by such Disinterested Director, or (B) the Company delivers as to the Trustee which a written opinion of has been obtained from an investment banking firm of national standing Independent Financial Advisor, on the basis set forth in the preceding sentences, such Affiliate Transaction shall be deemed to be on terms that are fair and reasonable to the Company and the Restricted Subsidiaries, as the case may be, and therefore shall be permitted under this covenant. Notwithstanding the foregoing, the restrictions set forth in this covenant shall not apply to (i) transactions with or other recognized independent expert with experience appraising among, or solely for the terms and conditions benefit of, the Company and/or any of the type Restricted Subsidiaries, (ii) transactions under the First-Lien Credit Documents (as defined in the Intercreditor Agreement), the Note Purchase Agreement and the Registration Rights Agreement and other Transaction Documents, (iii dividends paid by the Company pursuant to and in compliance with this Section 5.14, (iv) customary directors' fees, indemnification and similar arrangements, consulting fees, employee salaries bonuses, employment agreements and arrangements, compensation or employee benefit arrangements or legal fees, (v) grants of transaction or series customary registration rights with respect to securities of related transactions for which an opinion is required stating the Company and (vi) Restricted Payments permitted under Section 5.13 provided that the transactions or series of related transactions is any Investments and purchases constituting Restricted Payments must be fair and reasonable to the Company or such Subsidiary from a financial point of view; providedRestricted Subsidiary, however, that this provision shall not apply to: (a) compensation and employee benefit arrangements with any officer, director or employee of as the Company, including under any stock option or stock incentive plans, in the ordinary course of business; (b) any transaction solely between or among the Company and/or any Subsidiaries, if such transaction is otherwise in compliance with the Indenture and is on fair and reasonable terms; (c) any transaction otherwise permitted by the terms of the section of the Indenture described in Section 1009; (d) the execution and delivery of or payments made under any tax sharing agreement between or among any of the Company and any Subsidiary; (e) licensing or sublicensing of use of any intellectual property by the Company or any Subsidiary to any Subsidiary of the Company; provided that the licensor shall continue to have access to such intellectual property to the extent necessary for the conduct of its respective business; (f) arrangements between the Company and any Subsidiary of the Company for the purpose of providing services or employees to such Subsidiary; (g) any transaction entered into for the purpose of granting or altering registration rights with respect to the Capital Stock of the Company; and (h) any transaction or series of related transactions entered into prior to the date hereofcase may be.
Appears in 1 contract
Sources: Indenture (RCN Corp /De/)
Limitation on Transactions with Affiliates. The Company will shall not, and will shall not permit any of its the Restricted Subsidiaries to, directly or indirectly, enter into or suffer to exist any transaction or series of related transactions (including, without limitation, the sale, purchase, exchange or lease of assets, property or services) with or for the benefit of any Affiliate of the Company (other than the Company or a Wholly Owned Restricted Subsidiary) unless such transaction or series of related transactions is entered into in good faith and in writing and (a) such transaction or series of related transactions is in writing and on terms that are no less favorable to the Company or such Restricted Subsidiary, as the case may be, than those that would be reasonably expected to be available in a comparable transaction in arm'sarm’s-length dealings with an unrelated third party, (b) with respect to any transaction or series of related transactions involving aggregate value payments in excess of $3 million20,000,000, the Company delivers an Officers' ’ Certificate to the Trustee certifying that such transaction or series of related transactions complies with clause (a) above, above and (c) with respect to any transaction or series of related transactions involving aggregate value in excess of $7 million, either (A) such transaction or series of related transactions has been approved by a majority of the Disinterested members of the Board of Directors of the CompanyCompany (and approved by a majority of Independent Directors or, or in the event there is only one Disinterested Independent Director, by such Disinterested Independent Director, or ) and (Bc) the Company delivers with respect to the Trustee a written opinion of an investment banking firm of national standing or other recognized independent expert with experience appraising the terms and conditions of the type of any transaction or series of related transactions for which involving aggregate payments in excess of $25,000,000, an opinion is required stating that the transactions or series of related transactions is fair to the Company or such Restricted Subsidiary from an independent investment banking, accounting or appraisal firm of nationally recognized standing that the terms of such transaction are not materially less favorable than those that might reasonably have been obtained in a financial point of view; providedcomparable transaction at such time on an arm’s-length basis from a Person that is not an Affiliate. Notwithstanding the foregoing, however, that this provision shall not apply to: to (aA) any transaction with an officer or director of the Company or Parent entered into in the ordinary course of business (including compensation and or employee benefit arrangements with any officer, officer or director or employee of the Company, including under any stock option or stock incentive plans, in the ordinary course of business; (b) any transaction solely between or among the Company and/or any Subsidiaries, if such transaction is otherwise in compliance with the Indenture and is on fair and reasonable terms; (c) any transaction otherwise permitted by the terms of the section of the Indenture described in Section 1009; (d) the execution and delivery of or payments made under any tax sharing agreement between or among any of the Company and any Subsidiary; or Parent), (e) licensing or sublicensing of use of any intellectual property by the Company or any Subsidiary to any Subsidiary of the Company; provided that the licensor shall continue to have access to such intellectual property to the extent necessary for the conduct of its respective business; (f) arrangements between the Company and any Subsidiary of the Company for the purpose of providing services or employees to such Subsidiary; (gB) any transaction entered into for by the purpose Company or one of granting or altering registration rights its Wholly Owned Restricted Subsidiaries with respect to the Capital Stock a Wholly Owned Restricted Subsidiary of the Company; , (C) transactions in existence on the Issue Date and (hD) any transaction or series of related transactions entered into prior to the date hereofRestricted Payment permitted by Section 1009.
Appears in 1 contract
Limitation on Transactions with Affiliates. The Company will Except as set forth in Part 5.8 of the Disclosure Schedule, from the date hereof until the Closing Date, the Sellers shall not, and will shall not permit any of its their Subsidiaries to, directly or indirectly, sell, lease, transfer or otherwise dispose of any of the Target Assets or to permit any Target Subsidiary to purchase any property or assets from, or enter into any transaction contract, understanding, loan, advance or series of related transactions (includingguarantee with, without limitation, the sale, purchase, exchange or lease of assets, property or services) with or for the benefit of any of, an Affiliate of the Company Sellers (other than the Company Targeted Businesses) or a Wholly Owned Subsidiaryany of their Subsidiaries (other than Target Subsidiaries) (an “Affiliate Transaction”), unless such transaction or series of related transactions is entered into in good faith and in writing and (a) such transaction or series of related transactions Affiliate Transaction is on terms that are no less favorable to the Company Targeted Businesses or such SubsidiaryTarget Subsidiary than those that could have been obtained in a comparable transaction from an unrelated Person and (b) with respect to any Affiliate Transaction (or series of related Affiliate Transactions) involving or having a potential value of more than $500,000, in addition to compliance with clause (a), such Affiliate Transaction shall also be approved by a majority of the disinterested members of the Board of Directors of Sylvan or the Board of Managers of Ventures, as the case may be, than those after determining, in their reasonable good faith judgment, that would be reasonably expected to be available in a comparable transaction in arm's-length dealings with an unrelated third party, (b) with respect to any transaction or series of related transactions involving aggregate value in excess of $3 million, the Company delivers an Officers' Certificate to the Trustee certifying that such transaction or series of related transactions complies with clause (a) above, and (c) with respect to any transaction or series of related transactions involving aggregate value in excess of $7 million, either (Ai) such transaction or series of related transactions has been approved by a majority is in the best interest of the Disinterested Directors Targeted Businesses based on full disclosure of the Company, or in the event there is only one Disinterested Director, by such Disinterested Director, or all relevant facts and circumstances and (Bii) the Company delivers to the Trustee a written opinion of an investment banking firm of national standing or other recognized independent expert with experience appraising the terms and conditions of the type of transaction or series of related transactions for which an opinion is required stating that the transactions or series of related transactions is fair to the Company or such Subsidiary from a financial point of view; provided, however, that this provision shall not apply to: (a) compensation and employee benefit arrangements with any officer, director or employee of the Company, including under any stock option or stock incentive plans, in the ordinary course of business; (b) any transaction solely between or among the Company and/or any Subsidiaries, if such transaction is otherwise in compliance with the Indenture and is on fair and reasonable terms; terms competitive with those that could be obtained from an unrelated third party (c) any transaction otherwise permitted such approval and determination to be evidenced by the terms a resolution of such disinterested directors of the section Board of Directors of Sylvan or the Indenture described in Board of Managers of Ventures, as the case may be). Notwithstanding the foregoing, the provisions of this Section 1009; (d) 5.8 shall not prevent the execution and delivery of Sellers from entering into this Agreement or payments made under any tax sharing agreement between or among any of the Company and any Subsidiary; (e) licensing or sublicensing of use of any intellectual property other Transactions contemplated by the Company or any Subsidiary to any Subsidiary of the Company; provided that the licensor shall continue to have access to such intellectual property to the extent necessary for the conduct of its respective business; (f) arrangements between the Company and any Subsidiary of the Company for the purpose of providing services or employees to such Subsidiary; (g) any transaction entered into for the purpose of granting or altering registration rights with respect to the Capital Stock of the Company; and (h) any transaction or series of related transactions entered into prior to the date hereofthis Agreement.
Appears in 1 contract
Limitation on Transactions with Affiliates. (a) The Company will shall not, and will shall not permit any of its Restricted Subsidiaries to, directly or indirectly, enter into or suffer to exist any transaction or series of related transactions (including, without limitation, the sale, purchase, exchange or lease of assets, property or services) with any Affiliate (including entities in which the Company or for any of its Restricted Subsidiaries own a minority interest) or holder of 10% or more of the benefit Company's Common Stock (an "Affiliate Transaction") or extend, renew, waive or otherwise modify the terms of any Affiliate of Transaction entered into prior to the Issue Date unless (i) such Affiliate Transaction is between or among the Company and its Wholly-Owned Subsidiaries; or (other than ii) the Company or a Wholly Owned Subsidiary) unless terms of such transaction or series of related transactions is entered into in good faith Affiliate Transaction are fair and in writing and (a) such transaction or series of related transactions is on terms that are no less favorable reasonable to the Company or such Restricted Subsidiary, as the case may be, than those that would and the terms of such Affiliate Transaction are at least as favorable as the terms which could be reasonably expected to be available obtained by the Company or such Restricted Subsidiary, as the case may be, in a comparable transaction in made on an arm's-length dealings with basis between unaffiliated parties. In any Affiliate Transaction involving an unrelated third party, (b) with respect to any transaction amount or series of related transactions involving aggregate having a value in excess of $3 million2,000,000 which is not permitted under clause (i) above, the Company delivers an Officers' Certificate to must obtain a resolution of the Trustee Board of Directors certifying that such transaction or series of related transactions Affiliate Transaction complies with clause (aii) above, and (c) . In transactions with respect to any transaction or series of related transactions involving aggregate a value in excess of $7 million25,000,000 which are not permitted under clause (i) above, either (A) such transaction or series of related transactions has been approved by a majority of the Disinterested Directors of the Company, or in the event there is only one Disinterested Director, by such Disinterested Director, or (B) the Company delivers to the Trustee or such Restricted Subsidiary must obtain a written opinion as to the fairness of such a transaction from an independent investment banking firm firm.
(b) The foregoing provisions of national standing this Section 4.16 will not apply to (i) any Restricted Payment that is not prohibited by Section 4.13, (ii) reasonable and customary fees paid by the Company or other recognized independent expert its Restricted Subsidiaries to their respective directors or (iii) customary investment banking, underwriting, placement agent or financial advisor fees paid in connection with experience appraising the terms and conditions of the type of transaction or series of related transactions for which an opinion is required stating that the transactions or series of related transactions is fair services rendered to the Company or such Subsidiary from a financial point of view; provided, however, that this provision shall not apply to: (a) compensation and employee benefit arrangements with any officer, director or employee of the Company, including under any stock option or stock incentive plans, in the ordinary course of business; (b) any transaction solely between or among the Company and/or any its Subsidiaries, if such transaction is otherwise in compliance with the Indenture and is on fair and reasonable terms; (c) any transaction otherwise permitted by the terms of the section of the Indenture described in Section 1009; (d) the execution and delivery of or payments made under any tax sharing agreement between or among any of the Company and any Subsidiary; (e) licensing or sublicensing of use of any intellectual property by the Company or any Subsidiary to any Subsidiary of the Company; provided that the licensor shall continue to have access to such intellectual property to the extent necessary for the conduct of its respective business; (f) arrangements between the Company and any Subsidiary of the Company for the purpose of providing services or employees to such Subsidiary; (g) any transaction entered into for the purpose of granting or altering registration rights with respect to the Capital Stock of the Company; and (h) any transaction or series of related transactions entered into prior to the date hereof.
Appears in 1 contract
Limitation on Transactions with Affiliates. The Company will shall not, and will shall not permit any of its Subsidiaries Restricted Subsidiary to, directly or indirectly, enter into or suffer to exist any transaction or series of related transactions (includingwith, without limitation, the sale, purchase, exchange or lease of assets, property or services) with or for the benefit of of, any Affiliate of the Company (other than the Company or a Wholly Owned Subsidiary) "Interested Persons"), unless such transaction or series of related transactions is entered into in good faith and in writing and (a) such transaction or series of related transactions is on terms that are no less favorable to the Company or such Restricted Subsidiary, as the case may be, than those that would be reasonably expected to be available could have been obtained in a comparable an arm's length transaction in arm's-length dealings with an unrelated third party, parties who are not Interested Persons and (b) the Company delivers to the Trustee (i) with respect to any transaction or series of related transactions entered into after the Closing Date involving aggregate value payments in excess of $3 1.0 million, a resolution of the Company delivers Board set forth in an Officersofficers' Certificate to the Trustee certificate certifying that such transaction or series of related transactions complies comply with clause (a) above, above and that such transaction or transactions have been approved by the Board (including a majority of the Disinterested Directors) of the Company and (cii) with respect to any a transaction or series of related transactions involving aggregate value in excess of payments equal to or greater than $7 10 million, either (A) a written opinion as to the fairness to the Company or such Restricted Subsidiary of such transaction or series of related transactions has been approved from a financial point of view issued by a majority an accounting, appraisal or investment banking firm, in each case of national standing. The foregoing covenant will not restrict:
(A) transactions among the Disinterested Directors of the Company, or in the event there is only one Disinterested Director, by such Disinterested Director, or Company and/or its Restricted Subsidiaries;
(B) the Company delivers from paying reasonable and customary regular compensation and fees to the Trustee a written opinion directors of an investment banking firm of national standing or other recognized independent expert with experience appraising the terms and conditions of the type of transaction or series of related transactions for which an opinion is required stating that the transactions or series of related transactions is fair to the Company or such any Restricted Subsidiary from a financial point of view; provided, however, that this provision shall who are not apply to: (a) compensation and employee benefit arrangements with any officer, director or employee employees of the CompanyCompany or any Restricted Subsidiary;
(C) transactions permitted by Section 1011;
(D) advances to employees for moving, including under any stock option or stock incentive plans, entertainment and travel expenses and similar expenditures in the ordinary course of businessbusiness and consistent with past practice; and
(bE) any transaction solely between or among purchases of equipment, supplies and related services made on an arm's length basis in the Company and/or any Subsidiaries, if such transaction is otherwise in compliance with the Indenture and is on fair and reasonable terms; (c) any transaction otherwise permitted ordinary course of business by the terms of the section of the Indenture described in Section 1009; (d) the execution and delivery of or payments made under Company, any tax sharing agreement between or among any of the Company and any Subsidiary; (e) licensing or sublicensing of use of any intellectual property by the Company Restricted Subsidiary or any Subsidiary to Permitted Joint Venture from any Subsidiary of the Company; provided that the licensor shall continue to have access to such intellectual property to the extent necessary for the conduct of its respective business; (f) arrangements between the Company and any Subsidiary of the Company for the purpose of providing services or employees to such Subsidiary; (g) any transaction entered into for the purpose of granting or altering registration rights with respect to the Capital Stock of the Company; and (h) any transaction or series of related transactions entered into prior to the date hereofAffiliate.
Appears in 1 contract
Limitation on Transactions with Affiliates. The Company will not, and will not permit any of its Subsidiaries to, directly or indirectly, enter Enter into any transaction transaction, including any purchase, sale, lease or series exchange of related transactions (including, without limitationProperty, the sale, purchase, exchange or lease of assets, property or services) with or for the benefit rendering of any service or the payment of any management, advisory or similar fees, with any Affiliate of the Company (other than the Company Parent, any Restricted Subsidiary or any Person that becomes a Wholly Owned SubsidiaryRestricted Subsidiary as a result of such transaction) unless such transaction or series of related transactions is entered into in good faith otherwise permitted under this Agreement and in writing and (a) such transaction or series of related transactions is on fair and reasonable terms that are no less favorable to Parent and the Company Restricted Subsidiaries, taken as a whole, than could be obtained in a comparable arm’s-length transaction with a Person that is not an Affiliate. Notwithstanding the foregoing, Parent and the Restricted Subsidiaries may:
(a) enter into and consummate the transactions listed on Schedule 6.9(b);
(b) make Restricted Payments permitted pursuant to Section 6.6;
(c) make Investments (i) in Unrestricted Subsidiaries permitted by Section 6.7 and (ii) in any Person to the extent permitted by Section 6.7(a), (c), (d), (h), (v) or (cc) (provided, that any Investment in a Person permitted under Section 6.7 shall be permitted under this Section 6.9(d) to the extent such Investment constitutes a transaction with an Affiliate solely because a Group Member owns any Capital Stock in, or controls such Person);
(d) enter into employment and severance arrangements with officers, directors and employees of Parent and the Restricted Subsidiaries and, to the extent relating to services performed for Parent and the Restricted Subsidiaries (as determined in good faith by the senior management of the relevant Person), pay director, officer and employee compensation (including bonuses) and other benefits (including retirement, health, stock option and other benefit plans) and indemnification and expense reimbursement arrangements; provided, that any purchase of Capital Stock of Parent in connection with the foregoing shall be subject to Section 6.6;
(e) [reserved];
(f) make payments to or receive payments from, and enter into and consummate transactions with, joint ventures (to the extent any such joint venture is only an Affiliate as a result of Investments by Parent and the Restricted Subsidiaries in such joint venture) in the ordinary course of business or consistent with past practice to the extent otherwise permitted hereunder;
(g) pay reasonable out-of-pocket costs and expenses relating to registration rights and indemnities provided to holders of Capital Stock of Parent pursuant to any stockholders’ agreement or registration and participation rights agreement as in effect on the US-DOCS\73723759.13 Closing Date or entered into after the Closing Date in connection with any financing transaction, the net proceeds of which are contributed to Parent;
(h) enter into transactions between Parent or any Restricted Subsidiary and any Person other than an Unrestricted Subsidiary which would constitute a transaction with an Affiliate solely because a director of such Person is also a director of Parent or any direct or indirect Subsidiary of Parent; provided, however, that such director abstains from voting as a director of Parent or such Subsidiarydirect or indirect parent, as the case may be, on any matter involving such other Person;
(i) engage in the non-exclusive licensing of Intellectual Property in the ordinary course of business or consistent with past practice to permit the commercial exploitation of Intellectual Property between or among Affiliates of Parent;
(j) any transaction between or among Parent or any Restricted Subsidiary and any Person that is an Affiliate of Parent or any Restricted Subsidiary solely because Parent or a Restricted Subsidiary owns an equity interest in or otherwise controls such Person;
(k) [reserved];
(l) (i) investments by Affiliates in securities of Parent or any of the Restricted Subsidiaries (and payment of reasonable out-of-pocket expenses incurred by such Affiliates in connection therewith) so long as the investment is being offered by Parent or such Restricted Subsidiary generally to other non-affiliated third party investors on the same or more favorable terms and (ii) payments to Affiliates in respect of securities of Parent or any of the Restricted Subsidiaries contemplated by the foregoing subclause (i) or that were acquired from Persons other than those that would be reasonably expected to be available Parent and the Restricted Subsidiaries, in a comparable transaction each case, in arm's-length dealings accordance with the terms of such securities;
(m) transactions entered into by an Unrestricted Subsidiary with an unrelated third party, Affiliate prior to the day such Unrestricted Subsidiary is redesignated as a Restricted Subsidiary as described in Section 5.13; provided that such transaction was not entered into in contemplation of such Unrestricted Subsidiary becoming a Restricted Subsidiary; and
(bn) enter into transactions with respect to which Parent or any transaction of the Restricted Subsidiaries, as the case may be, obtains a letter from an independent financial advisory, investment banking or series of related transactions involving aggregate value in excess of $3 million, the Company delivers an Officers' Certificate to the Trustee certifying appraisal firm stating that such transaction or series of related transactions complies with clause (a) above, and (c) with respect to any transaction or series of related transactions involving aggregate value in excess of $7 million, either (A) such transaction or series of related transactions has been approved by a majority of the Disinterested Directors of the Company, or in the event there is only one Disinterested Director, by such Disinterested Director, or (B) the Company delivers to the Trustee a written opinion of an investment banking firm of national standing or other recognized independent expert with experience appraising the terms and conditions of the type of transaction or series of related transactions for which an opinion is required stating that the transactions or series of related transactions is fair to the Company Parent or such Restricted Subsidiary from a financial point of view; provided, however, that this provision shall not apply to: (a) compensation and employee benefit arrangements with any officer, director view or employee meets the requirements of the Company, including under any stock option or stock incentive plans, in the ordinary course first sentence of business; (b) any transaction solely between or among the Company and/or any Subsidiaries, if such transaction is otherwise in compliance with the Indenture and is on fair and reasonable terms; (c) any transaction otherwise permitted by the terms of the section of the Indenture described in this Section 1009; (d) the execution and delivery of or payments made under any tax sharing agreement between or among any of the Company and any Subsidiary; (e) licensing or sublicensing of use of any intellectual property by the Company or any Subsidiary to any Subsidiary of the Company; provided that the licensor shall continue to have access to such intellectual property to the extent necessary for the conduct of its respective business; (f) arrangements between the Company and any Subsidiary of the Company for the purpose of providing services or employees to such Subsidiary; (g) any transaction entered into for the purpose of granting or altering registration rights with respect to the Capital Stock of the Company; and (h) any transaction or series of related transactions entered into prior to the date hereof6.9.
Appears in 1 contract
Sources: Credit Agreement (Herbalife Ltd.)
Limitation on Transactions with Affiliates. The Company Borrower will not, and will not cause or permit any of its Subsidiaries Restricted Subsidiary to, directly or indirectly, conduct any business or enter into into, renew or extend any transaction with any of their respective Affiliates or series any beneficial holder of related transactions (10% or more of any class of Capital Stock of the Borrower or Holdings, including, without limitation, the purchase, sale, purchaselease or exchange of property, exchange or lease of assets, property or services) with or for the benefit rendering of any Affiliate service, or the making of any Guarantee, loan, advance or Investment, either directly or indirectly, unless the Company (other than the Company or a Wholly Owned Subsidiary) unless terms of such transaction or series of related transactions is entered into in good faith and in writing and (a) such transaction or series of related transactions is on are at least as favorable as the terms that are no less favorable to could be obtained at such time by the Company Borrower or such Restricted Subsidiary, as the case may be, than those that would be reasonably expected to be available in a comparable transaction made on an arms’–length basis with a Person that is not such an Affiliate; provided, however, that (x) in arm's-length dealings with an unrelated third party, (b) with respect to any transaction or series of related transactions involving aggregate value consideration in excess of $3 million10,000,000, the Company delivers Borrower shall deliver an Officers' Officer’s Certificate to the Trustee certifying Administrative Agent stating that such transaction or series of related transactions complies with clause (a) above, and (c) with respect to any transaction or series of related transactions involving aggregate value in excess of $7 million, either (A) such transaction or series of related transactions has been approved by a majority of the Disinterested Directors of either (i) the CompanyBoard of Directors of Holdings, or in if, at the event there time of such transaction, the Borrower is only one Disinterested Director, by such Disinterested Director, a Subsidiary of Holdings or (Bii) the Company delivers Board of Directors of the Borrower, if, at the time of such transaction, the Borrower is not a Subsidiary of Holdings, have determined, in their good faith judgment, that the terms of such transaction are at least as favorable as the terms that could be obtained by the Borrower or such Restricted Subsidiary, as the case may be, in a comparable transaction made on an arms’–length basis between unaffiliated parties and (y) if the aggregate consideration is in excess of $25,000,000, the Borrower shall also deliver to the Trustee a Administrative Agent, prior to the consummation of the transaction, the favorable written opinion of an a nationally recognized accounting, appraisal or investment banking firm of national standing or other recognized independent expert with experience appraising as to the terms and conditions fairness of the type of transaction or series of related transactions for which an opinion is required stating that the transactions or series of related transactions is fair to the Company or such Subsidiary Lenders, from a financial point of view. Notwithstanding the foregoing, the restrictions set forth in this Section 5.01 shall not apply to (i) transactions between or among the Borrower and/or any Restricted Subsidiaries, (ii) any Restricted Payment, Permitted Investment, other Investment or payment in respect of Indebtedness, in each case permitted by Section 5.04 or Section 5.20, (iii) directors’ fees, indemnification and similar arrangements, officers’ indemnification, employee stock option or employee benefit plans and employee salaries and bonuses paid or created in the ordinary course of business, (iv) any other agreement in effect on the Effective Date, as the same shall be amended from time to time; provided, however, that this provision any material amendment shall not apply to: (a) compensation and employee benefit arrangements be required to comply with any officer, director or employee the provisions of the Companypreceding paragraph of this Section 5.01, including under (v) transactions involving the leasing or sharing or other use by the Borrower or any stock option Restricted Subsidiary of communications network facilities (including, without limitation, cable or stock incentive plansfiber lines, equipment or transmission capacity) of any Affiliate of the Borrower or any beneficial holder of 10% or more of any class of Capital Stock of the Borrower or Holdings (such Affiliate or holder being a “Related Person”) on terms that are no less favorable (when taken as a whole) to the Borrower or such Restricted Subsidiary, as applicable, than those available from such Related Person to unaffiliated third parties, (vi) transactions involving the provision of telecommunication services by a Related Person in the ordinary course of business; its business to the Borrower or any Restricted Subsidiary, or by the Borrower or any Restricted Subsidiary to a Related Person, on terms that are no less favorable (bwhen taken as a whole) to the Borrower or such Restricted Subsidiary, as applicable, than those available from such Related Person to unaffiliated third parties, (vii) any transaction solely between sales agency agreements pursuant to which an Affiliate has the right to market any or among the Company and/or any Subsidiaries, if such transaction is otherwise in compliance with the Indenture and is on fair and reasonable terms; (c) any transaction otherwise permitted by the terms all of the section products or services of the Indenture described in Section 1009; (d) the execution and delivery of Borrower or payments made under any tax sharing agreement between or among any of the Company and any Subsidiary; Restricted Subsidiaries, (eviii) licensing customary commercial banking, investment banking, underwriting, placement agent or sublicensing of use of any intellectual property by the Company or any Subsidiary to any Subsidiary of the Company; provided that the licensor shall continue to have access to such intellectual property financial advisory fees paid in connection with services rendered to the extent necessary for Borrower and its subsidiaries in the conduct of its respective business; (f) arrangements between the Company and any Subsidiary of the Company for the purpose of providing services or employees to such Subsidiary; (g) any transaction entered into for the purpose of granting or altering registration rights with respect to the Capital Stock of the Company; ordinary course and (hix) any transaction or series of related transactions entered into prior to the date hereofExchange Agreement Transactions.
Appears in 1 contract
Limitation on Transactions with Affiliates. The Company will shall not, and will shall not permit permit, cause or suffer any of its Subsidiaries Restricted Subsidiary to, directly or indirectly, conduct any business, sell, lease, transfer or otherwise dispose of any of its properties or assets to, or purchase any property or assets from, or enter into any contract, agreement, loan, advance or Guarantee or engage in any other transaction (or series of related transactions (including, without limitation, the sale, purchase, exchange which are similar or lease part of assets, property or servicesa common plan) with or for the benefit of any Affiliate of their respective Affiliates or any beneficial owner of 10% or more of the Common Stock of the Company (other than or any officer, director of the Company or any Subsidiary (each, an "Affiliate Transaction"), unless the terms of the Affiliate Transaction are set forth in writing and are no less favorable to the Company or such Restricted Subsidiary, as the case may be, than would be available in a Wholly Owned Subsidiary) unless such comparable transaction with an unaffiliated third party. Each Affiliate Transaction (or series of related Affiliate Transactions) involving aggregate payments and/or other consideration having Fair Market Value (i) in excess of $1 million shall be approved by a majority of the Board, such approval to be evidenced by a Board Resolution stating that the Board has determined that such transaction or transactions is entered into comply with the foregoing provisions, (ii) in good faith and in writing excess of $5 million shall further require the approval of a majority of the Disinterested Directors and (aiii) in excess of $10 million shall further require that the Company obtain a written opinion from an Independent Financial Advisor stating that the terms of such transaction Affiliate Transaction (or series of related transactions is Affiliate Transactions) are fair to the Company or the Restricted Subsidiary, as the case may be, from a financial point of view; PROVIDED, that this clause (iii) shall not apply to purchases of goods and/or services in the ordinary course of the Company's business, and on terms no less favorable to the Company than those customarily granted to purchasers of such goods and/or services, from Paradyne Corporation or Xylan Corporation. For purposes of this Section 10.14, any Affiliate Transaction approved by a majority of the Disinterested Directors or as to which a written opinion has been obtained from an Independent Financial Advisor, on the basis set forth in the preceding sentence, shall be deemed to be on terms that are no less favorable to the Company or such Restricted Subsidiary, as the case may be, than those that would be reasonably expected to be available in a comparable transaction in arm's-length dealings with an unrelated unaffiliated third partyparty and, therefore, shall be permitted under this Section 10.14. Notwithstanding the foregoing, the restrictions set forth in this Section 10.14 shall not apply to (bi) transactions with respect to any transaction or series of related transactions involving aggregate value in excess of $3 millionamong, or solely for the benefit of, the Company delivers an Officers' Certificate to the Trustee certifying that such transaction or series of related transactions complies with clause (a) above, and (c) with respect to and/or any transaction or series of related transactions involving aggregate value in excess of $7 million, either (A) such transaction or series of related transactions has been approved by a majority of the Disinterested Directors of the CompanyRestricted Subsidiaries, or PROVIDED that in the event there is only one Disinterested Directorany such case, by such Disinterested Director, or (B) the Company delivers to the Trustee a written opinion of an investment banking firm of national standing or other recognized independent expert with experience appraising the terms and conditions of the type of transaction or series of related transactions for which an opinion is required stating that the transactions or series of related transactions is fair to the Company or such Subsidiary from a financial point of view; provided, however, that this provision shall not apply to: (a) compensation and employee benefit arrangements with any no officer, director or employee beneficial owner of 10% or more of any class of Capital Stock of the CompanyCompany shall beneficially own any Capital Stock of any such Restricted Subsidiary, including under (ii) transactions pursuant to agreements and arrangements existing on the Issue Date and specified on a schedule to the Indenture, (iii) any Restricted Payment made in compliance with Section 10.13, (iv) the payment of reasonable and customary regular fees to directors of the Company or any Restricted Subsidiary who are not employees of the Company or any Restricted Subsidiary, (v) employment agreements, stock option agreements and indemnification arrangements entered into by the Company or stock incentive plans, any of its Restricted Subsidiaries in the ordinary course of business; business and consistent with industry practice, (bvi) any transaction solely between or among the Company and/or any Subsidiaries, if such transaction is otherwise in compliance with the Indenture granting and is on fair and reasonable terms; (c) any transaction otherwise permitted by the terms performance of registration rights for securities of the section Company, (vii) loans and advances to officers, directors and employees of the Indenture described in Section 1009; (d) the execution and delivery of or payments made under any tax sharing agreement between or among any of the Company and any Subsidiary; (e) licensing or sublicensing of use of any intellectual property by the Company or any Restricted Subsidiary to any Subsidiary for travel, entertainment, moving and other relocation expenses, in each case made in the ordinary course of the Company; provided that the licensor shall continue to have access to such intellectual property to the extent necessary for the conduct of its respective business; business and consistent with industry practice, and (f) arrangements between the Company and any Subsidiary of the Company for the purpose of providing services or employees to such Subsidiary; (gviii) any transaction entered into for the purpose of granting or altering registration rights with respect to the Capital Stock of the Company; and (h) any transaction or series of related transactions entered into prior to the date hereofPermitted Investment.
Appears in 1 contract
Limitation on Transactions with Affiliates. The Company will not, and will not cause or permit any of its Restricted Subsidiaries to, directly or indirectly, enter into any transaction or series of related transactions (including, without limitation, the sale, purchase, exchange or lease of assets, property or services) with or for the benefit of any Affiliate of the Company (other than the Company or a Wholly Owned Restricted Subsidiary) unless such transaction or series of related transactions is entered into in good faith and in writing and (a) such transaction or series of related transactions is on terms that are no less favorable to the Company or such Restricted Subsidiary, as the case may be, than those that would be reasonably expected to be available in a comparable transaction in arm's-length dealings with an unrelated third party, (b) with respect to any transaction or series of related transactions involving aggregate value in excess of $3 million500,000, the Company delivers an Officers' Certificate to the Trustee certifying that such transaction or series of related transactions complies with clause (a) aboveabove or such transaction or series of related transactions is approved by a majority of the Disinterested Directors of the Board of Directors of the Company, or in the event there is only one Disinterested Director, by such Disinterested Director, and (c) with respect to any transaction or series of related transactions involving aggregate value in excess of $7 1 million, either (A) such transaction or series of related transactions has been approved by a majority of the Disinterested Directors of the Company, or in the event there is only one Disinterested Director, by such Disinterested Director, or (B) the Company delivers to the Trustee a written opinion of an investment banking firm of national standing or other recognized independent expert with experience appraising the terms and conditions of the type of transaction or series of related transactions for which an opinion is required stating that the transactions or series of related transactions is fair to the Company or such Restricted Subsidiary from a financial point of view; provided, however, that this provision shall not apply to: to (ai) compensation and employee benefit arrangements with any officer, officer or director or employee of the Company, including under any stock option or stock incentive plans, entered into in the ordinary course of business; (bii) any transaction solely between or among the Company and/or any Subsidiaries, if such transaction is otherwise in compliance with the Indenture and is on fair and reasonable terms; (c) any transaction otherwise permitted by the terms of the section of the Indenture described in as a Restricted Payment pursuant to Section 1009; (diii) the execution and delivery payment of or payments made under any tax sharing agreement between or among any customary fees to directors of the Company and any Subsidiaryits Restricted Subsidiaries; (eiv) licensing any transaction with any officer or sublicensing of use of any intellectual property by the Company or any Subsidiary to any Subsidiary member of the Company; provided that the licensor shall continue to have access to such intellectual property to the extent necessary for the conduct Board of its respective business; (f) arrangements between the Company and any Subsidiary Directors of the Company for the purpose of providing services or employees to such Subsidiary; (g) any transaction entered into for the purpose of granting or altering registration rights with respect to the Capital Stock of the Companyinvolving indemnification arrangements; and (hv) loans or advances to officers of the Company in the ordinary course of business not to exceed $1 million in any transaction or series of related transactions entered into prior to the date hereofcalendar year.
Appears in 1 contract
Sources: Exhibit (Autobahn Inc)
Limitation on Transactions with Affiliates. The Company will not, and will not permit, cause or suffer any Restricted Subsidiary to, conduct any business or enter into any transaction (or series of related transactions which are similar or part of a common plan) with or for the benefit of any of their respective Affiliates or any beneficial holder of 10% or more of the Common Stock of the Company or any officer or director of the Company or any Restricted Subsidiary (each an "Affiliate Transaction"), unless the terms of the Affiliate Transaction are fair and reasonable to the Company or such Restricted Subsidiary, as the case may be, and to the extent the Affiliate Transaction involves aggregate payments or other Fair Market Value involving $250,000 or more, are set forth in writing. Each Affiliate Transaction (and each series of related Affiliate Transactions which are similar or part of a common plan) involving aggregate payments or other Fair Market Value in excess of $500,000 shall be approved by a majority of the Board, such approval to be evidenced by a Board Resolution stating that the Board has determined that such transaction or transactions comply with the foregoing provisions. In addition to the foregoing, each Affiliate Transaction involving aggregate consideration of $5,000,000 or more shall be approved by a majority of the Disinterested Directors; provided that, in lieu of such approval by the Disinterested Directors, the Company may obtain a written opinion from an Independent Financial Advisor stating that the terms of such Affiliate Transaction to the Company or the Restricted Subsidiary, as the case may be, are fair from a financial point of view. For purposes of this Section 10.15, any Affiliate Transaction approved by a majority of the Disinterested Directors or as to which a written opinion has been obtained from an Independent Financial Advisor, on the basis set forth in the preceding sentence, shall be deemed to be on terms that are fair and reasonable to the Company and the Restricted Subsidiaries, as the case may be, and, therefore, shall be permitted under this Section 10.15. Notwithstanding the foregoing, the restrictions set forth in this Section 10.15 shall not apply to (i) transactions with or among, or solely for the benefit of, the Company and/or any of the Restricted Subsidiaries, (ii) transactions pursuant to agreements and arrangements existing on the Issue Date, including payments of management fees to VPC in an aggregate amount not to exceed $350,000 (plus travel expenses incurred in providing management services) in any Fiscal Year of the Company, (iii) the making of Deeply Subordinated Shareholder Loans pursuant to and in compliance with Section 10.12, (iv) dividends paid by the Company pursuant to and in compliance with Section 10.14, (v) customary directors' fees, indemnification and similar arrangements, consulting fees, employee salaries, loans and bonuses or legal fees and (vi) transactions contemplated by the License Co. Documents. 93 -86- Notwithstanding any provision of this Indenture to the contrary, the Company will not, and will not permit any of its Subsidiaries Restricted Subsidiary to, directly amend, modify or indirectly, enter into waive any transaction or series of related transactions (including, without limitation, the sale, purchase, exchange or lease of assets, property or services) with or for the benefit of any Affiliate provision of the Company (other than the Company or a Wholly Owned Subsidiary) unless such transaction or series of related transactions is entered into in good faith and in writing and (a) such transaction or series of related transactions is on terms that are no less favorable to the Company or such Subsidiary, as the case may be, than those that would be reasonably expected to be available License Co. Documents in a comparable transaction in arm's-length dealings with an unrelated third partymanner that is adverse, (b) with respect to any transaction or series from the perspective of related transactions involving aggregate value in excess of $3 million, the Company delivers an Officers' Certificate to the Trustee certifying that such transaction or series of related transactions complies with clause (a) above, and (c) with respect to any transaction or series of related transactions involving aggregate value in excess of $7 million, either (A) such transaction or series of related transactions has been approved by a majority of the Disinterested Directors of the Company, or in the event there is only one Disinterested Director, by such Disinterested Director, or (B) the Company delivers to the Trustee a written opinion of an investment banking firm of national standing or other recognized independent expert with experience appraising the terms and conditions of the type of transaction or series of related transactions for which an opinion is required stating that the transactions or series of related transactions is fair to the Company or such Subsidiary from a financial point of view; provided, however, that this provision shall not apply to: (a) compensation and employee benefit arrangements with any officer, director or employee of the Company, including under any stock option or stock incentive plans, in the ordinary course of business; (b) any transaction solely between or among the Company and/or any Subsidiaries, if such transaction is otherwise in compliance with the Indenture and is on fair and reasonable terms; (c) any transaction otherwise permitted by the terms of the section of the Indenture described in Section 1009; (d) the execution and delivery of or payments made under any tax sharing agreement between or among any creditors of the Company and the Restricted Subsidiaries, in any Subsidiary; (e) licensing or sublicensing of use of any intellectual property by the Company or any Subsidiary to any Subsidiary of the Company; provided that the licensor shall continue to have access to such intellectual property to the extent necessary for the conduct of its respective business; (f) arrangements between the Company and any Subsidiary of the Company for the purpose of providing services or employees to such Subsidiary; (g) any transaction entered into for the purpose of granting or altering registration rights with respect to the Capital Stock of the Company; and (h) any transaction or series of related transactions entered into prior to the date hereofmaterial respect.
Appears in 1 contract
Sources: Indenture (Optel Inc)
Limitation on Transactions with Affiliates. (a) The Company will not, and will not permit any of its Subsidiaries to, directly or indirectly, enter into or suffer to exist any transaction or series of related transactions (including, without limitation, the sale, purchase, exchange or lease of assets, property or services) with any Affiliate (including Parent and entities in which the Company or for any of its Subsidiaries own a minority interest) or holder of 10% or more of the benefit Company's Common Stock (an "Affiliate Transaction") or extend, renew, waive or otherwise modify the terms of any Affiliate of Transaction entered into prior to the Issue Date unless (i) such Affiliate Transaction is between or among the Company (other than the Company or a and its Wholly Owned SubsidiarySubsidiaries; or (ii) unless the terms of such transaction or series of related transactions is entered into in good faith Affiliate Transaction are fair and in writing and (a) such transaction or series of related transactions is on terms that are no less favorable reasonable to the Company or such Subsidiary, as the case may be, than those that would and the terms of such Affiliate Transaction are at least as favorable as the terms which could be reasonably expected to be available obtained by the Company or such Subsidiary, as the case may be, in a comparable transaction in made on an arm's-length dealings with basis between unaffiliated parties. In any Affiliate Transaction involving an unrelated third party, (b) with respect to any transaction amount or series of related transactions involving aggregate having a value in excess of $3 million5,000,000 which is not permitted under clause (i) above, the Company delivers an Officers' Certificate to the Trustee must obtain a Board Resolution certifying that such transaction or series of related transactions Affiliate Transaction complies with clause (aii) above, and (c) . In transactions with respect to any transaction or series of related transactions involving aggregate a value in excess of $7 million, either 10,000,000 which are not permitted under clause (Ai) such transaction or series of related transactions has been approved by above (other than loans from the Parent to the Company at a majority rate not in excess of the Disinterested incremental borrowing rate of the Company as determined in good faith by the Board of Directors of the Company, or loans from the Company or any Subsidiary to the Parent, in each case at a rate not in excess of the Parent's incremental borrowing rate, as determined in good faith by the Board of Directors of the Company), the Company must obtain a written opinion as to the fairness of such a transaction from an independent investment banking firm.
(b) The limitations set forth in Section 4.10(a) will not apply to (i) any Restricted Payment that is not prohibited by Section 4.08 hereof, (ii) Indebtedness incurred by the Company to the Parent, provided such Indebtedness has terms no more onerous than those contained in the event there is only one Disinterested Director, by such Disinterested DirectorCredit Facility, or (Biii) the Company delivers to the Trustee a written opinion of any compensation-related transaction, approved by an investment banking firm of national standing or other recognized independent expert with experience appraising the terms and conditions committee of the type Board of transaction or series of related transactions for which an opinion is required stating that the transactions or series of related transactions is fair to the Company or such Subsidiary from a financial point of view; provided, however, that this provision shall not apply to: (a) compensation and employee benefit arrangements with any officer, director or employee Directors of the Company, including under with an officer or director of the Company or of any stock option Subsidiary in his or stock incentive plans, her capacity as officer or director entered into in the ordinary course of business; (b) any transaction solely between or among the Company and/or any Subsidiaries, if such transaction is otherwise in compliance with the Indenture and is on fair and reasonable terms; (c) any transaction otherwise permitted by the terms of the section of the Indenture described in Section 1009; (d) the execution and delivery of or payments made under any tax sharing agreement between or among any of the Company and any Subsidiary; (e) licensing or sublicensing of use of any intellectual property by the Company or any Subsidiary to any Subsidiary of the Company; provided that the licensor shall continue to have access to such intellectual property to the extent necessary for the conduct of its respective business; (f) arrangements between the Company and any Subsidiary of the Company for the purpose of providing services or employees to such Subsidiary; (g) any transaction entered into for the purpose of granting or altering registration rights with respect to the Capital Stock of the Company; and (h) any transaction or series of related transactions entered into prior to the date hereof.
Appears in 1 contract
Sources: Indenture (Cole National Group Inc)
Limitation on Transactions with Affiliates. (a) The Company will shall not, and will shall not permit any of its Restricted Subsidiaries to, directly or indirectly, enter into or suffer to exist any transaction or series of related transactions (including, without limitation, the sale, purchase, exchange or lease of assets, property or services) with any Affiliate (including entities in which the Company or for any of its Restricted Subsidiaries owns a minority interest) or holder of 10% or more of the benefit Company's Common Stock (an "AFFILIATE TRANSACTION") or extend, renew, waive or otherwise modify the terms of any Affiliate of Transaction entered into prior to the Issue Date unless (i) such Affiliate Transaction is between or among the Company and its Wholly-Owned Subsidiaries; or (other than ii) the Company or a Wholly Owned Subsidiary) unless terms of such transaction or series of related transactions is entered into in good faith Affiliate Transaction are fair and in writing and (a) such transaction or series of related transactions is on terms that are no less favorable reasonable to the Company or such Restricted Subsidiary, as the case may be, than those that would and the terms of such Affiliate Transaction are at least as favorable as the terms which could be reasonably expected to be available obtained by the Company or such Restricted Subsidiary, as the case may be, in a comparable transaction in made on an arm's-length dealings with basis between unaffiliated parties. In any Affiliate Transaction involving an unrelated third party, (b) with respect to any transaction amount or series of related transactions involving aggregate having a value in excess of $3 million1.0 million which is not permitted under clause (i) above, the Company delivers an Officers' Certificate to must obtain a resolution of the Trustee Board of Directors certifying that such transaction or series of related transactions Affiliate Transaction complies with clause (aii) above, and (c) . In transactions with respect to any transaction or series of related transactions involving aggregate a value in excess of $7 million3.0 million which are not permitted under clause (i) above, either the Company must obtain a written opinion as to the fairness of such a transaction from an independent investment banking firm selected by the Company.
(Ab) such transaction The foregoing provisions will not apply to (i) any Restricted Payment that is not prohibited by the provisions of Section 4.09 or series of related transactions has been (ii) any transaction, approved by a majority the Board of the Disinterested Directors of the Company, with an officer or in the event there is only one Disinterested Director, by such Disinterested Director, or (B) the Company delivers to the Trustee a written opinion director of an investment banking firm of national standing or other recognized independent expert with experience appraising the terms and conditions of the type of transaction or series of related transactions for which an opinion is required stating that the transactions or series of related transactions is fair to the Company or such of any Subsidiary from a financial point in his or her capacity as officer or director entered into in the ordinary course of view; provided61 -53- business, however, that this provision shall not apply to: (a) including compensation and employee benefit arrangements with any officer, officer or director or employee of the Company, including under any stock option or stock incentive plans, in the ordinary course of business; (b) any transaction solely between or among the Company and/or any Subsidiaries, if such transaction is otherwise in compliance with the Indenture and is on fair and reasonable terms; (c) any transaction otherwise permitted by the terms of the section of the Indenture described in Section 1009; (d) the execution and delivery of or payments made under any tax sharing agreement between or among any of the Company and any Subsidiary; (e) licensing or sublicensing of use of any intellectual property by Subsidiary that are customary for public companies in the Company or any Subsidiary to any Subsidiary of the Company; provided that the licensor shall continue to have access to such intellectual property to the extent necessary for the conduct of its respective business; (f) arrangements between the Company and any Subsidiary of the Company for the purpose of providing services or employees to such Subsidiary; (g) any transaction entered into for the purpose of granting or altering registration rights with respect to the Capital Stock of the Company; and (h) any transaction or series of related transactions entered into prior to the date hereofmanufacturing industry.
Appears in 1 contract
Limitation on Transactions with Affiliates. (A) The Company will not, and will not permit any of its Restricted Subsidiaries to, directly or indirectly, enter into or suffer to exist any transaction or series of related transactions (including, without limitation, the sale, purchase, exchange or lease of assets, property or services) with or for the benefit of any Affiliate of (each an "Affiliate Transaction") unless:
(1) such Affiliate Transaction is between or among the Company and its Restricted Subsidiaries; or
(other than 2) the Company or a Wholly Owned Subsidiary) unless terms of such transaction or series of related transactions is entered into in good faith Affiliate Transaction are fair and in writing and (a) such transaction or series of related transactions is on terms that are no less favorable reasonable to the Company or such Restricted Subsidiary, as the case may be, than those that would and the terms of such Affiliate Transaction are at least as favorable as the terms which could be reasonably expected to be available obtained by the Company or such Restricted Subsidiary, as the case may be, in a comparable transaction in made on an arm's-length dealings with an unrelated third party, basis between unaffiliated parties. In any Affiliate Transaction (b) with respect to or any transaction or series of related transactions Affiliate Transactions that are similar or part of a common plan) involving aggregate an amount or having a fair market value in excess of $3 million(Euro)2,000,000 that is not permitted under clause (1) above, the Company delivers an Officers' Certificate to must obtain a resolution of the Trustee Board of Directors of the Company certifying that such transaction or series of related transactions Affiliate Transaction complies with clause (a2) above, and . In any Affiliate Transaction (c) with respect to or any transaction or series of related transactions Affiliate Transactions which are similar or part of a common plan) involving aggregate an amount or having a fair market value in excess of $7 million(Euro)5,000,000 that is not permitted under clause (1) above, either (A) the Company must obtain a favorable written opinion as to the fairness of such transaction or series of related transactions has been approved by a majority of transactions, as the Disinterested Directors of the Companycase may be, or in the event there is only one Disinterested Director, by such Disinterested Director, or from an Independent Financial Advisor.
(B) the Company delivers to the Trustee a written opinion The foregoing provisions will not apply to:
(1) reasonable fees and compensation and customary expense reimbursement paid to, and indemnity provided on behalf of, officers, directors, employees, or consultants of an investment banking firm of national standing or other recognized independent expert with experience appraising the terms and conditions of the type of transaction or series of related transactions for which an opinion is required stating that the transactions or series of related transactions is fair to the Company or such any Restricted Subsidiary from a financial point of view; provided, however, that this provision shall not apply to: (a) compensation and employee benefit arrangements with any officer, director or employee of the Company as determined in good faith by the Company, including under any stock option 's board of directors or stock incentive plans, in the ordinary course of business; senior management;
(b2) any transaction solely between or among agreement as in effect as of the Company and/or Issue Date (including, without limitation, any Subsidiaries, if such transaction is otherwise agreement entered into on the Issue Date in compliance connection with the Indenture and is on fair and reasonable terms; (cTransactions) or any amendment thereto or any transaction otherwise permitted by contemplated thereby (including pursuant to any amendment thereto) in any replacement agreement thereto so long as any such amendment or replacement agreement is not more disadvantageous to the terms of holders in any material respect than the section of original agreement as in effect on the Indenture described in Section 1009; Issue Date;
(d3) the execution loans and delivery of advances to employees or payments made under any tax sharing agreement between or among any officers of the Company and any Subsidiary; its Restricted Subsidiaries permitted by clause (e3) licensing of the definition of "Permitted Investments";
(4) Restricted Payments permitted by the Indenture;
(5) transactions with Affiliates solely in their capacity as holders of Indebtedness or sublicensing Capital Stock of use of any intellectual property by the Company or any Subsidiary to any Subsidiary of the Company; provided that the licensor shall continue to have access to such intellectual property to the extent necessary for the conduct of its respective business; (f) arrangements between the Company and any Subsidiary Subsidiaries, so long as such Affiliates are treated no more favorably than holders of the Company for the purpose of providing services such Indebtedness or employees to such Subsidiary; (g) any transaction entered into for the purpose of granting or altering registration rights with respect to the Capital Stock of the Companygenerally; and or
(h6) any transaction or series of related transactions entered into prior to the date hereofwith a Receivables Subsidiary in connection with Permitted Receivables Financing.
Appears in 1 contract
Sources: Indenture (Ifco Systems Nv)
Limitation on Transactions with Affiliates. (a) The Company will shall not, and will shall not cause or permit any of its Restricted Subsidiaries to, directly or indirectly, enter into or suffer to exist any transaction or series of related transactions (including, without limitation, the sale, purchase, exchange or lease of assets, property or services) with any Affiliate (each an "AFFILIATE TRANSACTION") or for extend, renew, waive or otherwise modify the benefit terms of any Affiliate of Transaction entered into prior to August 14, 2001, unless (i) such Affiliate Transaction is between or among the Company and its Restricted Subsidiaries or between or among Restricted Subsidiaries; or (other than ii) the Company or a Wholly Owned Subsidiary) unless terms of such transaction or series of related transactions is entered into in good faith and in writing and (a) such transaction or series of related transactions is on terms that Affiliate Transaction are no less favorable to the Company or such Restricted Subsidiary, as the case may be, than those that would the terms which could reasonably be reasonably expected to be available obtained by the Company or such Restricted Subsidiary, as the case may be, at such time in a comparable transaction in made on an arm's-length dealings with an unrelated third party, basis between unaffiliated parties. In any Affiliate Transaction (b) with respect to or any transaction or series of related transactions Affiliate Transactions) involving aggregate value an amount or having a Fair Market Value in excess of $3 million5,000,000 which is not permitted under clause (a)(i) of this Section 4.09, the Company delivers shall obtain a resolution of the disinterested members of the Board of Directors of the Company certifying that they have approved such Affiliate Transaction and determined that such Affiliate Transaction complies with clause (a)(ii) of this Section 4.09. In addition, in any Affiliate Transaction (or any series of related Affiliate Transactions) involving an Officers' Certificate to amount or having a Fair Market Value in excess of $50,000,000 which is not permitted under clause (a)(i) of this Section 4.09, the Trustee certifying Company must obtain a written opinion from an Independent Financial Advisor that such transaction or series of related transactions complies with clause (a) above, and (c) with respect to any transaction or series of related transactions involving aggregate value in excess of $7 million, either (A) such transaction or series of related transactions has been approved by a majority of the Disinterested Directors of the Company, or in the event there is only one Disinterested Director, by such Disinterested Director, or (B) the Company delivers to the Trustee a written opinion of an investment banking firm of national standing or other recognized independent expert with experience appraising the terms and conditions of the type of transaction or series of related transactions for which an opinion is required stating that the transactions or series of related transactions is are fair to the Company or such Subsidiary Restricted Subsidiary, as the case may be, from a financial point of view; provided, however, that this provision shall .
(b) The provisions of Section 4.09(a) will not apply to: to (ai) compensation any Restricted Payment made in compliance with Section 4.07 hereof, (ii) any payment of customary and employee benefit arrangements with any officer, director or employee reasonable fees to directors of the Company, including under (iii) any stock option employment agreement or stock incentive planscompensation arrangement in effect on August 14, 2001, or entered into thereafter by the -50- Company or any of its Restricted Subsidiaries in the ordinary course of business; (b) any transaction solely between or among the Company and/or any Subsidiaries, if such transaction is otherwise in compliance business and consistent with the Indenture and is on fair and reasonable terms; (c) any transaction otherwise permitted by the terms of the section of the Indenture described in Section 1009; (d) the execution and delivery of or payments made under any tax sharing agreement between or among any past practice of the Company and any Subsidiary; its Restricted Subsidiaries, (eiv) licensing or sublicensing transactions in the ordinary course of use of any intellectual property by the Company or any Subsidiary business pursuant to any Subsidiary pension, share or partnership unit option, profit sharing, partnership unit or share appreciation rights or other employee benefit plan or agreement (including insurance, indemnification and reimbursement plans and arrangements for directors, officers and employees), (v) loans to employees not to exceed $10,000,000 in aggregate amount at any one time outstanding, or (vi) issuances of Capital Stock (other than Disqualified Capital Stock) of the Company; provided that the licensor shall continue to have access to such intellectual property to the extent necessary for the conduct of its respective business; (f) arrangements between the Company and any Subsidiary of the Company for the purpose of providing services or employees to such Subsidiary; (g) any transaction entered into for the purpose of granting or altering registration rights with respect to the Capital Stock of the Company; and (h) any transaction or series of related transactions entered into prior to the date hereof.
Appears in 1 contract
Sources: Indenture (Norske Skog Canada LTD)
Limitation on Transactions with Affiliates. (a) The Company will shall not, and will shall not cause or permit any of its Subsidiaries Restricted Subsidiary to, directly conduct any business or indirectly, enter into any transaction or series of related transactions (including, without limitation, the sale, purchase, exchange or lease of assets, property or services) with or for the benefit of any of their Affiliates (each an "Affiliate of the Company (other than the Company or a Wholly Owned Subsidiary) unless such transaction or series of related transactions is entered into Transaction"), except in good faith and in writing and (a) such transaction or series of related transactions is on terms that are no less favorable to the Company or such Subsidiary, as the case may be, than those that would be reasonably expected to be available could have been obtained in a comparable transaction in arm'son an arms-length dealings with basis from a Person not an unrelated third party, Affiliate of the Company or such Subsidiary. All Affiliate Transactions (b) with respect to any transaction or and each series of related transactions Affiliate Transactions which are similar or part of a common plan) involving aggregate payments or other property with a fair market value in excess of $3 million1,000,000 shall be approved by the Board of Directors of the Company, such approval to be evidenced by a Board Resolution stating that such board of directors has determined that such transaction complies with the foregoing provisions. If the Company or any Subsidiary of the Company enters into an Affiliate Transaction (or a series of related Affiliate Transactions related to a common plan) that involves an aggregate fair market value of more than $5,000,000, the Company delivers an Officers' Certificate or such Subsidiary shall, prior to the Trustee certifying that consummation thereof, obtain a favorable opinion as to the fairness of such transaction or series of related transactions complies with clause (a) above, and (c) with respect to any transaction or series of related transactions involving aggregate value in excess of $7 million, either (A) such transaction or series of related transactions has been approved by a majority of the Disinterested Directors of the Company, or in the event there is only one Disinterested Director, by such Disinterested Director, or (B) the Company delivers to the Trustee a written opinion of an investment banking firm of national standing or other recognized independent expert with experience appraising the terms and conditions of the type of transaction or series of related transactions for which an opinion is required stating that the transactions or series of related transactions is fair to the Company or such Subsidiary the relevant Subsidiary, as the case may be, from a financial point of view; provided, however, that this provision from an Independent Financial Advisor and promptly file the same with the Trustee.
(b) The foregoing restrictions shall not apply to: to (ai) reasonable fees and compensation paid to and employee benefit arrangements with any officerindemnity provided on behalf of, director officers, directors, employees or employee consultants of the Company or any Subsidiary as determined in good faith by the Company, including under any stock option 's Board of Directors or stock incentive plans, in the ordinary course of businesssenior management; (bii) any transaction solely transactions exclusively between or among the Company and/or and any of its Wholly Owned Restricted Subsidiaries or exclusively between or among such Wholly Owned Restricted Subsidiaries, if provided such transaction is transactions are not otherwise in compliance with the Indenture and is on fair and reasonable termsprohibited by this Indenture; (ciii) any transaction otherwise Restricted Payments permitted by the terms of the section of the Indenture described in Section 1009this Indenture; (div) the execution and delivery of or payments made under the Tax Sharing Agreement as in effect on the Issue Date or any tax sharing amendment thereto or replacement agreement between thereto so long as any such amendment or among any replacement is no less favorable to Holders than the original agreement as in effect on the Issue Date; and (v) management fees payable to Affiliates of the Company and any Subsidiary; (e) licensing or sublicensing of use of any intellectual property by not to exceed $200,000 per annum in the Company or any Subsidiary to any Subsidiary of the Company; provided that the licensor shall continue to have access to such intellectual property to the extent necessary for the conduct of its respective business; (f) arrangements between the Company and any Subsidiary of the Company for the purpose of providing services or employees to such Subsidiary; (g) any transaction entered into for the purpose of granting or altering registration rights with respect to the Capital Stock of the Company; and (h) any transaction or series of related transactions entered into prior to the date hereofaggregate.
Appears in 1 contract
Sources: Indenture (Toms Foods Inc)
Limitation on Transactions with Affiliates. The Company will not, and will not permit any of its Subsidiaries to, directly or indirectly, enter into or suffer to exist any transaction or series of related transactions (including, without limitation, the sale, purchase, exchange or lease of assets, property or services) with or for the benefit of any Affiliate of the Company (other than including any Affiliate in which the Company or any Subsidiary thereof owns a Wholly Owned Subsidiaryminority interest) unless or holder of 10% or more of the Company's Equity Interests (each such transaction transaction, an "Affiliate Transaction") or series extend, renew, waive or otherwise modify the terms of related transactions is any Affiliate Transaction entered into prior to the Issue Date unless (i) such Affiliate Transaction is solely between or among the Company and its Wholly-Owned Subsidiaries; (ii) such Affiliate Transaction is solely between or among Wholly-Owned Subsidiaries of the Company; (iii) such Affiliate Transaction is for reasonable fees and compensation paid to, and indemnity provided on behalf of, officers, directors, employees or consultants of the Company or any Subsidiary thereof as reasonably determined in good faith by the Board of Directors (when required as described below) or senior management of the Company or of such Subsidiary having no interest in such Affiliate Transaction; or (iv) the terms of such Affiliate Transaction are fair and in writing and (a) such transaction or series of related transactions is on terms that are no less favorable reasonable to the Company or such Subsidiary, as the case may be, than those that would and the terms of such Affiliate Transaction are at least as favorable as the terms which could be reasonably expected to be available obtained by the Company or such Subsidiary, as the case may be, in a comparable transaction in made on an arm's-length dealings with basis between unaffiliated parties. In any Affiliate Transaction involving an unrelated third party, (b) with respect to any transaction amount or series of related transactions involving aggregate having a value in excess of $3 million5 million in any one year which is not permitted under clause (i) or (ii) above, the Company delivers or such Subsidiary, as the case may be, must obtain a resolution of an Officers' Certificate to the Trustee independent committee of its Board of Directors certifying that such transaction or series of related transactions Affiliate Transaction complies with clause (aiii) or (iv) above, and as the case may be. The foregoing provisions will not apply to (ci) with respect the payment of reasonable annual compensation to any transaction directors or series of related transactions involving aggregate value in excess of $7 million, either (A) such transaction or series of related transactions has been approved by a majority of the Disinterested Directors executive officers of the Company, or and (ii) the continued performance of transactions with Affiliates disclosed in the event there is only one Disinterested DirectorPlan of Reorganization, by such Disinterested Director, or (B) on the Company delivers to the Trustee a written opinion of an investment banking firm of national standing or other recognized independent expert with experience appraising the same terms and conditions of the type of transaction or series of related transactions for which an opinion is required stating that the transactions or series of related transactions is fair to the Company or such Subsidiary from a financial point of view; provided, however, that this provision shall not apply to: (a) compensation and employee benefit arrangements with any officer, director or employee of the Company, including under any stock option or stock incentive plans, as disclosed in the ordinary course Plan of business; (b) any transaction solely between or among the Company and/or any Subsidiaries, if such transaction is otherwise in compliance with the Indenture and is on fair and reasonable terms; (c) any transaction otherwise permitted by the terms of the section of the Indenture described in Section 1009; (d) the execution and delivery of or payments made under any tax sharing agreement between or among any of the Company and any Subsidiary; (e) licensing or sublicensing of use of any intellectual property by the Company or any Subsidiary to any Subsidiary of the Company; provided that the licensor shall continue to have access to such intellectual property to the extent necessary for the conduct of its respective business; (f) arrangements between the Company and any Subsidiary of the Company for the purpose of providing services or employees to such Subsidiary; (g) any transaction entered into for the purpose of granting or altering registration rights with respect to the Capital Stock of the Company; and (h) any transaction or series of related transactions entered into prior to the date hereofReorganization.
Appears in 1 contract
Limitation on Transactions with Affiliates. (a) The Company will Issuer shall not, and will shall not permit any of its Subsidiaries Restricted Subsidiary to, directly or indirectly, enter into or suffer to exist any transaction or series of related transactions (includingincluding the purchase, without limitation, the sale, purchasetransfer, assignment, lease, conveyance or exchange of any Property or lease the rendering of assetsany service) with, property or services) with or for the benefit of of, any Affiliate of the Company Issuer (other than an "Affiliate Transaction"), unless:
(1) the Company or a Wholly Owned Subsidiary) unless terms of such transaction or series of related transactions is entered into in good faith and in writing and (a) such transaction or series of related transactions is on terms that Affiliate Transaction are no less favorable to the Company Issuer or such Restricted Subsidiary, as the case may be, than those that would could be reasonably expected to be available obtained in a comparable transaction in arm's-length dealings transaction with a Person that is not an unrelated third party, Affiliate of the Issuer,
(b2) with respect to any transaction if such Affiliate Transaction involves aggregate payments or series of related transactions involving aggregate value in excess of $3 10.0 million, a majority of the Company delivers an Officers' Certificate to disinterested members of the Trustee certifying Board of Directors of the Issuer or, if there is only one disinterested director, such disinterested director determines that such transaction or series of related transactions Affiliate Transaction complies with clause Section 4.14(a)(1) as evidenced in the minutes or other evidence of Board action, and
(a3) above, and (c) with respect to any transaction if such Affiliate Transaction involves aggregate payments or series of related transactions involving aggregate value in excess of $7 50.0 million, either (A) such transaction or series of related transactions has been approved by a majority of the Disinterested Directors of the Company, or in the event there is only one Disinterested Director, by such Disinterested Director, or (B) the Company delivers to the Trustee Issuer obtains a written opinion of from an investment banking firm of national standing or other recognized independent expert with experience appraising the terms and conditions of the type of transaction or series of related transactions for which an opinion is required stating that the transactions or series of related transactions is fair Independent Financial Advisor to the Company effect that (i) the consideration to be paid or received in connection with such Subsidiary Affiliate Transaction is fair, from a financial point of view; provided, howeverto the Issuer or such Restricted Subsidiary, that as applicable, or (ii) is not less favorable to the Issuer and its Restricted Subsidiaries than could reasonably be expected to be obtained at the time in an arm's length transaction with a Person who was not an Affiliate. For purposes of this provision shall not apply to: (aSection 4.14(a)(3) compensation and employee benefit arrangements with only, any officer, director contract or employee series of related contracts for the Company, including under any stock option or stock incentive plans, rendering of services entered into in the ordinary course of business; business by the Issuer or any Restricted Subsidiary with any other Person will not be deemed to be in excess of $50.0 million if, when entered into, (x) the payments made or to be made by the Issuer and the Restricted Subsidiaries, and (y) the value of services performed by the Issuer and the Restricted Subsidiaries in connection with such contract or series of related contracts do not exceed, and are not then reasonably expected by the Board of Directors of the Issuer in its good faith judgment to exceed, $50.0 million.
(b) any transaction solely between or among Notwithstanding the Company and/or any Subsidiariesforegoing limitation, if such transaction is otherwise in compliance with the Indenture and is on fair and reasonable terms; (c) any transaction otherwise permitted by the terms of the section of the Indenture described in Section 1009; (d) the execution and delivery of or payments made under any tax sharing agreement between or among any of the Company and any Subsidiary; (e) licensing or sublicensing of use of any intellectual property by the Company Issuer or any Restricted Subsidiary may make, engage in, enter into or suffer to any Subsidiary of exist the Company; provided that the licensor shall continue to have access to such intellectual property to the extent necessary for the conduct of its respective business; following:
(f) arrangements between the Company and any Subsidiary of the Company for the purpose of providing services or employees to such Subsidiary; (g) any transaction entered into for the purpose of granting or altering registration rights with respect to the Capital Stock of the Company; and (h1) any transaction or series of related transactions entered into prior between or among the Issuer or one or more Restricted Subsidiaries or between or among two or more Restricted Subsidiaries;
(2) any Restricted Payment permitted to be made pursuant to Section 4.10 or any Permitted Investment;
(3) the payment of reasonable compensation (including awards or grants in cash, securities or other payments) for the personal services of officers, directors, consultants and employees of the Issuer or any Restricted Subsidiary in the ordinary course of business;
(4) entering into, or adoption or modification or amendment to, or transaction or other arrangements or payments or reimbursements pursuant to employment agreements, collective bargaining agreements, employee benefit plans or arrangements for employees, officers or directors, including vacation plans, health and life insurance plans, deferred compensation plans, directors' and officers' indemnification arrangements and retirement or savings plans, stock option, stock ownership and similar plans so long as the Board of Directors of the Issuer in good faith shall have approved the terms thereof;
(5) loans and advances to officers, directors or employees (or guarantees of third party loans to officers, directors or employees) made in the ordinary course of business, provided that such loans and advances do not exceed $8.0 million in the aggregate at any one time outstanding;
(6) transactions with customers, clients, suppliers or purchasers or sellers of goods or services, in each case in the ordinary course of business and otherwise in compliance with the terms of this Indenture, which are fair to the date hereofIssuer or the Restricted Subsidiary, as the case may be, or are on terms no less favorable than might reasonably have been obtained at such time from an unaffiliated party; provided that such transactions are approved by a majority of disinterested directors of the Board of Directors of the Issuer or, if there is only one disinterested director, such director;
(7) payments pursuant to the Management Agreements as in effect on the Merger Date or any amendment or replacement thereto or any transaction contemplated thereby (including pursuant to any amendment or replacement thereto) so long as such amendment or replacement agreement is not materially less favorable to the Holders of the Notes than the original agreements in effect on the Merger Date;
(8) transactions with Persons in their capacity as Holders of Debt or Capital Stock, of the Issuer or any Restricted Subsidiary where such Persons are treated no more favorably than Holders of such Debt or Capital Stock generally;
(9) sale or issuance of Capital Stock (other than Disqualified Stock) of the Issuer to Affiliates of the Issuer;
(10) transactions pursuant to any agreement as in effect on the Merger Date as the same may be amended or replaced from time to time in any manner not materially less favorable to the Holders of the Notes and any agreement or replacement thereto as in effect on the Merger Date and described in the Offering Memorandum under the caption "Certain Relationships and Related Party Transactions" and "Management -- Management Arrangements" or any transaction contemplated thereby, including pursuant to any amendment or any replacement thereto so long as any such amendment or replacement thereto is not materially less favorable to the Holders of the Notes than the original agreement as in effect on the Merger Date;
(11) any transaction permitted by Section 5.01;
(12) any tax sharing or arrangement and payments pursuant thereto among the Issuer and its Subsidiaries and other Persons (including Holding) with which the Issuer or any of its Subsidiaries is required or permitted to file a consolidated tax return or with which the Issuer or any of its Restricted Subsidiaries is or could be a part of a consolidated group for tax purposes in amounts not otherwise prohibited by this Indenture;
(13) any change of control or severance payments made to employees of the Issuer on or after the Issue Date in connection with the Merger, as required by agreements in effect on the Merger Date;
(14) the payment of transaction fees and expenses or other costs relating to the issuance of the Notes or the repurchase of Preferred Stock of Holding, whether paid to a third party or reimbursed to such party, other than to Affiliates of the Issuer; and
(15) remaining payments, if any, pursuant to the Fee Agreement, Subscription Agreements and DG Equity Rollover Agreement each as in effect on the Merger Date or any amendment or replacement thereto so long as such amendment or replacement thereto is not materially less favorable to the Holders of the Notes than the original Fee Agreement, Subscription Agreements and DG Equity Rollover Agreement each as in effect on the Merger Date.
Appears in 1 contract
Sources: Indenture (Pharma Services Intermediate Holding Corp)
Limitation on Transactions with Affiliates. (a) The Company Issuer will not, and the Issuer will not permit any of its Subsidiaries Restricted Subsidiary to, directly or indirectly, indirectly enter into any transaction Transaction (including without limitation making any payment to, or series selling, leasing, transferring or otherwise disposing of related transactions (includingany of its properties or assets to, without limitation, the sale, purchase, exchange or lease of assets, purchasing any property or servicesassets from, or entering into or making or amending any Transaction) with with, or for the benefit of, any of any their Affiliates involving aggregate consideration in excess of $1.0 million (each, an “Affiliate of the Company Transaction”), unless:
(other than the Company or a Wholly Owned Subsidiary) unless such transaction or series of related transactions is entered into in good faith and in writing and (ai) such transaction or series of related transactions Affiliate Transaction is on terms that are no less favorable to the Company Issuer or the relevant Subsidiary than those that would have been obtained in a comparable arm’s-length Transaction by the Issuer or such SubsidiaryRestricted Subsidiary with an unaffiliated party; and
(ii) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $20.0 million, the terms of such transaction shall have been approved by a majority of the members of the Board of Directors of the Issuer and by a majority of the Disinterested Members (or, if there is only one Disinterested Member, such Disinterested Member), if any, and the Issuer delivers to the Trustee a resolution adopted by such majority or majorities, as the case may be, than those of the Board of Directors of the Issuer approving such Affiliate Transaction and resolving that would be reasonably expected to be available in a comparable transaction in arm's-length dealings such Affiliate Transaction complies with an unrelated third party, Section 4.10(a)(i).
(b) with respect Section 4.10(a) shall not limit, and shall not apply to;
(i) Transactions between or among the Issuer and/or the Restricted Subsidiaries;
(ii) Permitted Investments and Restricted Payments that are permitted by Section 4.8;
(iii) any issuance or sale of Equity Interests (other than Disqualified Stock) of the Issuer;
(iv) transactions pursuant to agreements or arrangements in effect on the Issue Date, or any transaction amendment, modification, or series supplement thereto or replacement thereof, as long as such agreement or arrangement, as so amended, modified, supplemented or replaced, taken as a whole, is not materially more disadvantageous to the Issuer and the Restricted Subsidiaries than the agreement or arrangement in existence on the Issue Date (as determined in good faith by the Board of related transactions involving Directors of the Issuer);
(v) loans or advances to employees, officers or directors of the Issuer or any Restricted Subsidiary in an aggregate value amount not in excess of $3 million, the Company delivers an Officers' Certificate to the Trustee certifying that such transaction or series 5.0 million at any one time outstanding;
(vi) payment of related transactions complies with clause (a) abovereasonable and customary fees and expenses to, and reasonable and customary indemnification arrangements and similar arrangements and payments on behalf of, directors of the Issuer or any Subsidiary of the Issuer;
(cvii) any employment, consulting, service or termination agreement, or reasonable and customary indemnification arrangements, entered into by the Issuer or any Restricted Subsidiary with respect officers and employees of the Issuer or any Subsidiary thereof and the payment of compensation to officers and employees of the Issuer or any transaction Subsidiary thereof (including amounts paid pursuant to employee benefit plans, employee stock option or series of related transactions involving aggregate value in excess of $7 millionsimilar plans), either (A) so long as such transaction agreement or series of related transactions payment has been approved by a majority of the Disinterested Directors of the CompanyMembers (or, or in the event if there is only one Disinterested DirectorMember, by such Disinterested DirectorMember);
(viii) Transactions with customers, clients, suppliers or purchasers or sellers of goods or services, in each case in the ordinary course of the business of the Issuer and its Restricted Subsidiaries and otherwise in compliance with the terms of this Indenture; provided that in the reasonable determination of the members of the Board of Directors or senior management of the Issuer, such Transactions are on terms that are no less favorable to the Issuer or the relevant Restricted Subsidiary than those that would have been obtained in a comparable Transaction by the Issuer or such Restricted Subsidiary with an unrelated Person;
(ix) any sale or other issuance of Equity Interests (other than Disqualified Stock) of the Issuer to, or receipt of a capital contribution from, an Affiliate (Bor a Person that becomes an Affiliate) of the Company Issuer;
(x) direct or indirect sales of equipment, supplies, products and services by the Issuer or any of the Restricted Subsidiaries to any direct or indirect joint venture of the Issuer or one of the Restricted Subsidiaries at or above Cost;
(xi) transactions in which the Issuer or any Restricted Subsidiary delivers to the Trustee a written opinion of letter from an investment banking firm of national standing or other recognized independent expert with experience appraising the terms and conditions of the type of transaction or series of related transactions for which an opinion is required financial advisor stating that the transactions or series of related transactions such transaction is fair to the Company Issuer or such Restricted Subsidiary from a financial point of view; providedand
(xii) transactions pursuant to the Master Frac Services Agreement, howeveror any amendment, that this provision shall modification or supplement thereto or replacement thereof so long as such agreement, as so amended, modified, supplemented or replaced, taken as a whole, is not apply to: (a) compensation and employee benefit arrangements with any officer, director or employee materially adverse to the Holders of the Company, including under any stock option or stock incentive plans, in the ordinary course of business; (b) any transaction solely between or among the Company and/or any Subsidiaries, if such transaction is otherwise in compliance with the Indenture and is on fair and reasonable terms; (c) any transaction otherwise permitted by the terms of the section of the Indenture described in Section 1009; (d) the execution and delivery of or payments made under any tax sharing agreement between or among any of the Company and any Subsidiary; (e) licensing or sublicensing of use of any intellectual property by the Company or any Subsidiary to any Subsidiary of the Company; provided that the licensor shall continue to have access to such intellectual property to the extent necessary for the conduct of its respective business; (f) arrangements between the Company and any Subsidiary of the Company for the purpose of providing services or employees to such Subsidiary; (g) any transaction entered into for the purpose of granting or altering registration rights with respect to the Capital Stock of the Company; and (h) any transaction or series of related transactions entered into prior to the date hereofNotes.
Appears in 1 contract
Sources: Indenture (FTS International, Inc.)
Limitation on Transactions with Affiliates. The Company will not, and will not permit any of its Subsidiaries Restricted Subsidiary to, directly or indirectly, enter into or suffer to exist any transaction or series of related transactions (including, without limitation, the sale, purchase, exchange or lease of assets, property or services) with or for the benefit of any Affiliate of the Company (other than the Company or a Wholly Owned Restricted Subsidiary) unless such transaction or series of related transactions is entered into in good faith and in writing and (ai) such transaction or series of related transactions is on terms that are no less favorable to the Company or such Restricted Subsidiary, as the case may be, than those that would be reasonably expected to be available in a comparable transaction in arm's-length dealings with an unrelated third party, and (bii) (a) with respect to any transaction or series of related transactions involving aggregate value payments in excess of $3 million1,000,000, the Company delivers an Officers' Certificate to the Trustee certifying that such transaction or series of related transactions complies with clause (ai) above, above and (c) with respect to any transaction or series of related transactions involving aggregate value in excess of $7 million, either (A) such transaction or series of related transactions has been approved by a majority of the Disinterested members of the Board of Directors of the CompanyCompany (and approved by a majority of the Independent Directors or, or in the event there is only one Disinterested Independent Director, by such Disinterested Independent Director), and (b) with respect to any transaction or (B) series of transactions involving aggregate payments in excess of $5,000,000, an opinion as to the fairness to the Company delivers to the Trustee or such Restricted Subsidiary from a written opinion financial point of view issued by an investment banking firm of national standing or other recognized independent expert with experience appraising standing. Notwithstanding the terms and conditions of the type of transaction or series of related transactions for which an opinion is required stating that the transactions or series of related transactions is fair to the Company or such Subsidiary from a financial point of view; providedforegoing, however, that this provision shall will not apply to: to (ai) employment agreements or compensation and or employee benefit arrangements with any officer, director or employee of the Company, including under any stock option or stock incentive plans, Company entered into in the ordinary course of business; business (b) any transaction solely between or among the Company and/or any Subsidiariesincluding customary benefits thereunder), if such transaction is otherwise in compliance with the Indenture and is on fair and reasonable terms; (c) any transaction otherwise permitted by the terms of the section of the Indenture described in Section 1009; (d) the execution and delivery of or payments made under any tax sharing agreement between or among any of the Company and any Subsidiary; (e) licensing or sublicensing of use of any intellectual property by the Company or any Subsidiary to any Subsidiary of the Company; provided that the licensor shall continue to have access to such intellectual property to the extent necessary for the conduct of its respective business; (f) arrangements between the Company and any Subsidiary of the Company for the purpose of providing services or employees to such Subsidiary; (gii) any transaction entered into for by or among the purpose Company or one of granting its Wholly Owned Restricted Subsidiaries with one or altering registration rights more Wholly Owned Restricted Subsidiaries of the Company, and (iii) the national advertising representation agreements between the Company (or any of its Restricted Subsidiaries) and Adam Young, Inc. existing on the date of this Indenture (and any ren▇▇▇▇▇, ▇▇▇ensions or replacements thereof, and any future such agreements with respect to television stations acquired by the Capital Stock of the Company; and (h) any transaction Company or series of related transactions entered into prior to its Restricted Subsidiaries after the date hereofof this Indenture, so long as such renewals, extensions, replacements or future agreements are on terms substantially similar to those of such existing agreements) and other transactions in existence on the date of this Indenture and described or referred to in the Final Memorandum, under the caption "Certain Transactions."
Appears in 1 contract
Limitation on Transactions with Affiliates. (a) The Company will Issuers shall not, and will shall not permit any of its their Restricted Subsidiaries to, directly or indirectly, enter into or suffer to exist any transaction or series of related transactions (including, without limitation, the sale, purchase, exchange or lease of assets, property or services) with any Affiliate (including entities in which the Issuers or for any of its Restricted Subsidiaries own a minority interest) or holder of 10% or more of the benefit Issuers' Common Stock (an "Affiliate Transaction") other than transactions existing on the date hereof and described on Schedule 4.11 hereto, or extend, renew, waive or otherwise modify the terms of any Affiliate of Transaction entered into prior to the Company (Issue Date if such extension, renewal, waiver or other modification is more disadvantageous to the Holders in any material respect than the Company or a Wholly Owned Subsidiary) original agreement as in effect on the Issue Date unless such transaction or series of related transactions is entered into in good faith and in writing and (ai) such transaction Affiliate Transaction is between or series among the Issuers and their Wholly-Owned Subsidiaries; or (ii) the terms of related transactions is on terms that such Affiliate Transaction are no less favorable fair and reasonable to the Company Issuers or such Restricted Subsidiary, as the case may be, than those that would and the terms of such Affiliate Transaction are at least as favorable as the terms which could be reasonably expected to be available obtained by the Issuers or such Restricted Subsidiary, as the case may be, in a comparable transaction in made on an arm's-length dealings with basis between unaffiliated parties. In any Affiliate Transaction involving an unrelated third party, (b) with respect to any transaction amount or series of related transactions involving aggregate having a value in excess of $3 million1,000,000 which is not permitted under clause (i) above, the Company delivers an Officers' Certificate to Issuers must obtain a resolution of the Trustee Board of Directors certifying that such transaction or series of related transactions Affiliate Transaction complies with clause (aii) above, and (c) . In transactions with respect to any transaction or series of related transactions involving aggregate a value in excess of $7 million3,000,000 which are not permitted under clause (i) above, either the Issuers must obtain a written opinion as to the fairness of such a transaction from an independent investment banking firm.
(Ab) such transaction or series of related transactions has been The limitations set forth in Section 4.11(a) shall not apply to (i) any Restricted Payment that is not prohibited by Section 4.09 hereof, (ii) any transaction, approved by a majority the Board of the Disinterested Directors of the CompanyIssuers, with an officer or in the event there is only one Disinterested Director, by such Disinterested Director, or (B) the Company delivers to the Trustee a written opinion of an investment banking firm of national standing or other recognized independent expert with experience appraising the terms and conditions director of the type Issuers or of transaction any Subsidiary in his or series of related transactions for which an opinion is required stating that the transactions her capacity as officer or series of related transactions is fair to the Company or such Subsidiary from a financial point of view; provided, however, that this provision shall not apply to: (a) compensation and employee benefit arrangements with any officer, director or employee of the Company, including under any stock option or stock incentive plans, entered into in the ordinary course of business; , (biii) any transaction solely between or among the Company and/or any Subsidiaries, if such transaction is otherwise in compliance with the Indenture and is on fair and reasonable terms; (c) any transaction otherwise transactions permitted by Section 5.01 hereof or (iv) transactions after the terms date of the section of the this Indenture described in Section 1009; (d) the execution and delivery of or payments made under any tax sharing agreement between or among any of the Company and any Subsidiary; (e) licensing or sublicensing of use of any intellectual property that are expressly contemplated by the Company Securities Purchase Agreement and the Securityholders Agreement (including any registration rights described therein) and are not prohibited by any other provision of this Indenture or any Subsidiary to any Subsidiary of the CompanyNotes; provided that the licensor shall continue aggregate management, advisory, consulting and similar fees paid by the Company to have access to such intellectual property ▇▇▇▇▇▇ ▇▇▇▇▇ and its Affiliates pursuant to the extent necessary for Securities Purchase Agreement or otherwise shall not exceed (y) $1,000,000 during any fiscal year less (z) the conduct amount of its respective business; (f) arrangements between any distributions made by the Company and any Subsidiary during such fiscal year pursuant to clause (vi) of the second paragraph of Section 4.09, and provided, further, that any such fees may accrue but shall not be paid by the Company for at any time after the purpose occurrence and during the continuance of providing services a Default or employees to such Subsidiary; (g) any transaction entered into for the purpose Event of granting or altering registration rights with respect to the Capital Stock of the Company; and (h) any transaction or series of related transactions entered into prior to the date hereofDefault.
Appears in 1 contract
Sources: Indenture (Petersen Holdings LLC)
Limitation on Transactions with Affiliates. (a) The Company will shall not, and will shall not permit any of its Subsidiaries to, directly or indirectly, enter into or permit to exist any transaction or series of related transactions (including, without limitation, the purchase, sale, purchase, lease or exchange or lease of assets, any property or servicesthe rendering of any service) with with, or for the benefit of, any of any its Affiliates (each an "Affiliate of the Company (Transaction"), other than (x) Affiliate Transactions permitted under paragraph (b) below and (y) Affiliate Transactions conducted in good faith, the terms of which are fair and reasonable to the Company or a Wholly Owned Subsidiary) unless such transaction or series of related transactions is entered into in good faith Subsidiary and in writing and (a) such transaction or series of related transactions is on terms that which are no less favorable to the Company or such Subsidiary than those that might reasonably have been obtained in a comparable transaction at such time on an arm's-length basis from a Person that is not an Affiliate of the Company or such Subsidiary. All Affiliate Transactions (and each series of related Affiliate Transactions which are similar or part of a common plan) involving aggregate payments or other property with a fair market value in excess of $250,000 shall be approved by the Board of Directors of the Company or such Subsidiary, as the case may be, than those that would be reasonably expected including a majority of the disinterested Directors, if any, such approval to be available in evidenced by a comparable Board Resolution stating that such Board of Directors has determined that such transaction in arm's-length dealings complies with the foregoing provisions. If the Company or any Subsidiary of the Company enters into an unrelated third party, Affiliate Transaction (b) with respect to any transaction or a series of related transactions involving Affiliate Transactions related to a common plan) that involves an aggregate fair market value in excess or payments to an Affiliate, as the case may be, of more than $3 million1,000,000, the Company delivers an Officers' Certificate or such Subsidiary, as the case may be, shall, prior to the Trustee certifying that consummation thereof, obtain a favorable opinion as to the fairness of such transaction or series of related transactions complies with clause (a) above, and (c) with respect to any transaction or series of related transactions involving aggregate value in excess of $7 million, either (A) such transaction or series of related transactions has been approved by a majority of the Disinterested Directors of the Company, or in the event there is only one Disinterested Director, by such Disinterested Director, or (B) the Company delivers to the Trustee a written opinion of an investment banking firm of national standing or other recognized independent expert with experience appraising the terms and conditions of the type of transaction or series of related transactions for which an opinion is required stating that the transactions or series of related transactions is fair to the Company or such Subsidiary the relevant Subsidiary, as the case may be, from a financial point of view; provided, however, that this provision from an Independent Financial Advisor and file the same with the Trustee.
(b) The foregoing restrictions shall not apply to: :
(ai) reasonable compensation and employee benefit arrangements with any officerout-of-pocket expenses paid to and indemnity provided on behalf of, director officers, directors or employee employees of the Company or any Subsidiary of the Company as determined in good faith by the Company, including under any stock option 's Board of Directors or stock incentive plans, in the ordinary course of business; senior management;
(bii) any transaction solely transactions between or among the Company and/or any and one or more of its Subsidiaries or exclusively between or among one or more of the Company's Subsidiaries, if ; provided that such transaction is transactions are not otherwise prohibited by this Indenture;
(iii) payments to KRG in compliance accordance with the Indenture and is on fair and reasonable terms; (c) any transaction otherwise permitted by the terms of the section of the Indenture described in Section 1009Management Agreement; and
(div) the execution Restricted Payments and delivery of or payments made under any tax sharing agreement between or among any of the Company and any Subsidiary; (e) licensing or sublicensing of use of any intellectual property Permitted Investments permitted by the Company or any Subsidiary to any Subsidiary of the Company; provided that the licensor shall continue to have access to such intellectual property to the extent necessary for the conduct of its respective business; (f) arrangements between the Company and any Subsidiary of the Company for the purpose of providing services or employees to such Subsidiary; (g) any transaction entered into for the purpose of granting or altering registration rights with respect to the Capital Stock of the Company; and (h) any transaction or series of related transactions entered into prior to the date hereofthis Indenture.
Appears in 1 contract
Limitation on Transactions with Affiliates. (a) The Company will shall not, and will shall not permit any of its Subsidiaries Restricted Subsidiary to, directly or indirectly, conduct any business or enter into or suffer to exist any transaction or series of related transactions (includingincluding the purchase, without limitation, the sale, purchasetransfer, assignment, lease, conveyance or exchange of any Property or lease the rendering of assetsany service) with, property or services) with or for the benefit of of, any Affiliate of the Company (other than an "Affiliate Transaction"), unless:
(1) the terms of such Affiliate Transaction are
(A) fair and reasonable to the Company or a Wholly Owned such Restricted Subsidiary, as the case may be, and
(B) unless such transaction or series of related transactions is entered into in good faith and in writing and (a) such transaction or series of related transactions is on terms that are no less favorable to the Company or such Restricted Subsidiary, as the case may be, than those that would could be reasonably expected to be available obtained in a comparable transaction in arm's-length dealings transaction with a Person that is not an unrelated third partyAffiliate of the Company;
(2) if such Affiliate Transaction involves aggregate payments or value in excess of $1.0 million, the Company obtains and promptly delivers to the Trustee a resolution of its Board of Directors (including a majority of the disinterested members of the Board of Directors) approving such Affiliate Transaction and certifying that, in its good faith judgment, such Affiliate Transaction complies with clauses (a)(1)(A) and (a)(1)(B) above; and
(3) if such Affiliate Transaction involves aggregate payments or value in excess of $5.0 million, the Company obtains a written opinion from an Independent Financial Advisor that the transaction is fair to the Company and the Restricted Subsidiaries.
(b) with respect Without regard to the foregoing limitations, the Company or any Restricted Subsidiary may enter into or suffer to exist the following:
(1) any transaction or series of related transactions involving aggregate value in excess of $3 million, between the Company delivers an Officers' Certificate to the Trustee certifying that such transaction and one or series of related transactions complies with clause (a) above, and (c) with respect to any transaction more Restricted Subsidiaries or series of related transactions involving aggregate value in excess of $7 million, either (A) such transaction between two or series of related transactions has been approved by a majority of the Disinterested Directors of the Company, or in the event there is only one Disinterested Director, by such Disinterested Director, or (B) the Company delivers to the Trustee a written opinion of an investment banking firm of national standing or other recognized independent expert with experience appraising the terms and conditions of the type of transaction or series of related transactions for which an opinion is required stating that the transactions or series of related transactions is fair to the Company or such Subsidiary from a financial point of view; provided, however, that this provision shall not apply to: (a) compensation and employee benefit arrangements with any officer, director or employee of the Company, including under any stock option or stock incentive plans, more Restricted Subsidiaries in the ordinary course of business; (b) any transaction solely between or among the Company and/or any Subsidiaries, if such transaction is otherwise in compliance with the Indenture and is on fair and reasonable terms; (c) any transaction otherwise permitted by the terms provided that no more than 5% of the section total voting power of the Indenture described in Section 1009; Voting Stock (don a fully diluted basis) the execution and delivery of or payments made under any tax sharing agreement between or among any such Restricted Subsidiary is owned by an Affiliate of the Company (other than a Restricted Subsidiary);
(2) any Restricted Payment permitted to be made pursuant to Section 4.08 or any Permitted Investment;
(3) any transaction, including compensation and any Subsidiary; (e) licensing employee benefit arrangements, with an officer or sublicensing director of use of any intellectual property by the Company or any Subsidiary to any Subsidiary of the CompanyRestricted Subsidiaries in his or her capacity as an officer or director, so long as the Board of Directors in good faith shall have approved the terms thereof;
(4) loans and advances to employees made in the ordinary course of business and consistent with the past practices of the Company or such Restricted Subsidiary, as the case may be; provided that such loans and advances do not exceed $1.0 million to any one employee and $5.0 million in the licensor shall continue to have access to such intellectual property aggregate at any one time outstanding;
(5) agreements in effect on the Issue Date and any modifications, extensions or renewals thereto that are no less favorable to the extent necessary for Company or any Restricted Subsidiary than such agreement as in effect on the conduct Issue Date; and
(6) sales of its respective business; (f) arrangements between the Company and accounts receivable, or participations therein, in connection with any Subsidiary of the Company for the purpose of providing services or employees to such Subsidiary; (g) any transaction entered into for the purpose of granting or altering registration rights with respect to the Capital Stock of the Company; and (h) any transaction or series of related transactions entered into prior to the date hereofReceivables Facility.
Appears in 1 contract
Limitation on Transactions with Affiliates. The Company will shall not, and will shall not permit permit, cause or suffer any of its Subsidiaries Restricted Subsidiary to, directly conduct any business or indirectly, enter into any transaction (or series of related transactions (including, without limitation, the sale, purchase, exchange which are similar or lease part of assets, property or servicesa common plan) with or for the benefit of any Affiliate of their respective Affiliates or any beneficial holder of 10% or more of the Common Stock of the Company or any officer or director of the Company (other than each, an “Affiliate Transaction”), unless the Company or a Wholly Owned Subsidiary) unless such transaction or series terms of related transactions is entered into the Affiliate Transaction are set forth in good faith writing, and in writing are fair and (a) such transaction or series of related transactions is on terms that are no less favorable reasonable to the Company or such Restricted Subsidiary, as the case may be. Each Affiliate Transaction involving aggregate payments or other Fair Market Value in excess of $5,000,000 must be approved by a majority of the Disinterested Directors or by the Board of Directors, such approval to be evidenced by a Board Resolution stating that the Board of Directors has determined that such transaction or transactions comply with the foregoing provisions provided that, in lieu of such approval by the Disinterested Directors, the Company may obtain a written opinion from an Independent Financial Advisor stating that the terms of such Affiliate Transaction to the Company or the Restricted Subsidiary, as the case may be, than those that would be reasonably expected are fair from a financial point of view. In addition to be available in a comparable transaction in arm's-length dealings with an unrelated third partythe foregoing, (b) the Company shall obtain, with respect to any transaction or series of related transactions each Affiliate Transaction involving aggregate value in excess consideration of $3 million, 25,000,000 a written opinion from an Independent Financial Advisor stating that the terms of such Affiliate Transaction to the Company delivers an Officers' Certificate to or the Trustee certifying that such transaction or series Restricted Subsidiary, as the case may be, are fair from a financial point of related transactions complies with clause (a) aboveview. For purposes of this covenant but without limiting the requirements of the two preceding sentences, and (c) with respect to when any transaction or series of related transactions involving aggregate value in excess of $7 million, either (A) such transaction or series of related transactions has been Affiliate Transaction approved by a majority of the Disinterested Directors of the Company, or in the event there is only one Disinterested Director, by such Disinterested Director, or (B) the Company delivers as to the Trustee which a written opinion of has been obtained from an investment banking firm of national standing Independent Financial Advisor, on the basis set forth in the preceding sentences, such Affiliate Transaction shall be deemed to be on terms that are fair and reasonable to the Company and the Restricted Subsidiaries, as the case may be, and therefore shall be permitted under this covenant. Notwithstanding the foregoing, the restrictions set forth in this covenant shall not apply to (i) transactions with or other recognized independent expert with experience appraising among, or solely for the terms and conditions benefit of, the Company and/or any of the type Restricted Subsidiaries, (ii) transactions under the First-Lien Credit Documents (as defined in the Intercreditor Agreement), the Note Purchase Agreement and the Registration Rights Agreement and other Transaction Documents, (iii dividends paid by the Company pursuant to and in compliance with this Section 5.14, (iv) customary directors’ fees, indemnification and similar arrangements, consulting fees, employee salaries bonuses, employment agreements and arrangements, compensation or employee benefit arrangements or legal fees, (v) grants of transaction or series customary registration rights with respect to securities of related transactions for which an opinion is required stating the Company and (vi) Restricted Payments permitted under Section 5.13 provided that the transactions or series of related transactions is any Investments and purchases constituting Restricted Payments must be fair and reasonable to the Company or such Subsidiary from a financial point of view; providedRestricted Subsidiary, however, that this provision shall not apply to: (a) compensation and employee benefit arrangements with any officer, director or employee of as the Company, including under any stock option or stock incentive plans, in the ordinary course of business; (b) any transaction solely between or among the Company and/or any Subsidiaries, if such transaction is otherwise in compliance with the Indenture and is on fair and reasonable terms; (c) any transaction otherwise permitted by the terms of the section of the Indenture described in Section 1009; (d) the execution and delivery of or payments made under any tax sharing agreement between or among any of the Company and any Subsidiary; (e) licensing or sublicensing of use of any intellectual property by the Company or any Subsidiary to any Subsidiary of the Company; provided that the licensor shall continue to have access to such intellectual property to the extent necessary for the conduct of its respective business; (f) arrangements between the Company and any Subsidiary of the Company for the purpose of providing services or employees to such Subsidiary; (g) any transaction entered into for the purpose of granting or altering registration rights with respect to the Capital Stock of the Company; and (h) any transaction or series of related transactions entered into prior to the date hereofcase may be.
Appears in 1 contract
Sources: Indenture (RCN Corp /De/)
Limitation on Transactions with Affiliates. The Neither ------------------------------------------- the Company will not, and will not permit nor any of its Subsidiaries to, directly or indirectly, will enter into any contract, arrangement, understanding or transaction or series of related with an Affiliate (an "Affiliate Transaction") except for (i) transactions (including, without limitation, evidenced by an Officers' Certificate addressed and delivered to the sale, purchase, exchange or lease of assets, property or services) with or for the benefit of any Trustee stating that such Affiliate of the Company (other than the Company or a Wholly Owned Subsidiary) unless such transaction or series of related transactions Transaction is entered into made in good faith and in writing that the terms of such Affiliate Transaction are fair and (a) such transaction or series of related transactions is on terms that are no less favorable reasonable to the Company or such Subsidiary, as the case may be, than those that would and at least as favorable as the terms which could be reasonably expected to be available obtained by the Company or such Subsidiary, as the case may be, in a comparable transaction in arm's-made on an arm's length dealings basis with an unrelated third partypersons who are not Affiliates; provided, (b) with respect however, that any such transaction shall be deemed to any transaction or series of related transactions involving aggregate value in excess of $3 million, be on terms which are fair and reasonable to the Company delivers or such Subsidiary, as applicable, and on terms which are at least as favorable as the terms which could be obtained on an Officers' Certificate to the Trustee certifying that arm's length basis with persons who are not so affiliated, if such transaction or series of related transactions complies with clause (a) above, and (c) with respect to any transaction or series of related transactions involving aggregate value in excess of $7 million, either (A) such transaction or series of related transactions has been is approved by a majority of the Disinterested members of the Manager's Board of Directors (or, if the Company is a corporation, by the members of the Company's Board of Directors) who are disinterested in the terms thereof; provided, further, however, (a) that Affiliate Transactions during a single fiscal year involving HET or any Subsidiary of HET shall not in the aggregate involve consideration to either party in excess of a threshold to be determined by the Manager's Board of Directors (or, if the Company is a corporation, by the Company's Board of Directors) (including, without limitation, any decisions regarding the exercise, waiver or modification of rights or obligations, or the determination of fees with respect to project development services, under the Management Agreement), unless such Affiliate Transactions (y) have been approved by the Board of Directors of the CompanyManager (or, or in if the event there Company is only one Disinterested Directora corporation, by the Company's Board of Directors) or such Disinterested DirectorSubsidiary, as applicable, in accordance with the applicable governance documents of such entity, or (Bz) are pursuant to or in connection with agreements or plans (including, without limitation, any business plans, operating plans, financing plans or marketing plans) (I) approved by the Board of Directors of the Manager (or, if the Company delivers is a corporation, of the Company) or such Subsidiary, as applicable, in accordance with the governance documents of such entity, (II) approved by the Bankruptcy Court for the Eastern District of Louisiana in connection with the Plan of Reorganization, or (III) entered into by the Company prior to, on, or substantially concurrently with, the Issue Date, and (b) that with respect to any Affiliate Transaction (including any series of related transactions) involving consideration to either party in excess of $2.5 million, the Company must, prior to the Trustee consummation thereof, obtain a written favorable opinion as to the fairness of such transaction to the Company or Subsidiary, as the case may be, from a financial point of view from an independent investment banking firm of national standing reputation, or other recognized independent expert with experience appraising the terms and conditions of the type of transaction or series of related transactions for which an opinion is required stating that the transactions or series of related transactions is fair to the Company or such Subsidiary from a financial point of view; provided, however, that this provision shall not apply to: (a) compensation and employee benefit arrangements with any officer, director or employee of the Company, including under any stock option or stock incentive plans, in the ordinary course case of business; a real estate transaction) an independent investment banking firm or a real estate appraisal firm of national reputation, (bii) any transaction transactions solely between or among the Company and/or any Subsidiaries, if such transaction is otherwise in compliance with the Indenture and is on fair and reasonable terms; (c) any transaction otherwise permitted by the terms of the section of the Indenture described in Section 1009; (d) the execution and delivery of or payments made under any tax sharing agreement between or among any of the Company and any Subsidiary; (e) licensing or sublicensing of use of any intellectual property by the Company or any Subsidiary to any Subsidiary of the Company; provided that the licensor shall continue to have access to such intellectual property to the extent necessary for the conduct of its respective business; (f) arrangements between the Company and any Subsidiary wholly owned Subsidiaries or solely among wholly owned Subsidiaries, (iii) transactions effected pursuant to, and in accordance with the terms of, the Management Agreement, the Completion Guarantees, the Administrative Services Agreement, the Development Agreement, the Completion Loan Agreement, the Indemnity Agreement, the HET Loan Guaranty, the Credit Enhancement Fee Agreement, the Minimum Payment Guaranty Documents, the HET/JCC Agreement, the HET Warrant, the Second Floor Sublease, a Slot Machine Lease, and any payments under the Bank Credit Facilities, as such terms in such agreements exist on the Issue Date or, in the case of the Company for the purpose of providing services Bank Credit Facilities, as they may be subsequently amended, modified, supplemented or employees to such Subsidiary; replaced, and (giv) any transaction entered into for the purpose of granting or altering registration rights with respect Restricted Payments to the Capital Stock of the Company; and (h) any transaction or series of related transactions entered into prior to the date hereofextent permitted by Section 5.3.
Appears in 1 contract
Sources: Indenture (Jazz Casino Co LLC)
Limitation on Transactions with Affiliates. The Company will shall not, and will shall not permit any of its Restricted Subsidiaries to, directly or indirectly, enter into or permit to exist any transaction or series of related transactions (including, without limitation, the purchase, sale, purchase, lease or exchange or lease of assets, any property or servicesthe rendering of any service) with or for the benefit of any of, an Affiliate of the Company or any Restricted Subsidiary (other than transactions between the Company or and a Wholly Owned Subsidiarywholly owned Restricted Subsidiary of the Company) unless such transaction or series of related transactions is entered into in good faith and in writing and (a) such transaction or series of related transactions is an "Affiliate Transaction"), other than Affiliate Transactions on terms that are no less favorable to in the Company or such Subsidiary, as the case may be, aggregate than those that would be might reasonably expected to be available have been obtained or are obtainable in a comparable transaction in on an arm's-length dealings with basis from a Person that is not an unrelated third party, (b) with respect to Affiliate; provided that neither the Company nor any transaction of its Restricted Subsidiaries shall enter into an Affiliate Transaction or series of related transactions Affiliate Transactions involving aggregate or having a value in excess of $3 million, the Company delivers an Officers' Certificate to the Trustee certifying that such transaction 10 million or series of related transactions complies with clause (a) above, and (c) with respect to any transaction or series of related transactions involving aggregate value in excess of $7 million, either (A) such transaction or series of related transactions has been approved by more unless a majority of the Disinterested disinterested members of the Board of Directors of the Company, or Company determines in good faith as evidenced by a Board Resolution that the terms are no less favorable in the event there is only one Disinterested Director, by such Disinterested Director, or (B) the Company delivers to the Trustee a written opinion of an investment banking firm of national standing or other recognized independent expert with experience appraising the terms and conditions of the type of transaction or series of related transactions for which an opinion is required stating that the transactions or series of related transactions is fair aggregate to the Company or such Subsidiary than those that might reasonably have been obtained in a comparable transaction on an arm's-length basis from a financial point of viewPerson that is not an Affiliate; provided, however, that this provision shall not apply to: (ai) compensation and employee benefit arrangements with any officer, director employment agreement or employee of the Company, including under any stock option agreement entered into by the Company or stock incentive plans, any of its Restricted Subsidiaries in the ordinary course of business; , (bii) any transaction solely between or among the Company and/or any Subsidiariestransactions permitted under Section 4.03, if such transaction is otherwise in compliance with the Indenture and is on fair and reasonable terms; (c) any transaction otherwise permitted by the terms of the section of the Indenture described in Section 1009; (diii) the execution payment of reasonable fees and delivery of or payments made under any tax sharing agreement between or among any expenses to directors 66 -57- of the Company or its Restricted Subsidiaries, (iv) any issuance of securities or other payments, awards or grants in cash, securities or otherwise pursuant to, or the funding of employment arrangements, stock options and any Subsidiary; (e) licensing or sublicensing of use of any intellectual property by the Company or any Subsidiary to any Subsidiary of the Company; provided that the licensor shall continue to have access to such intellectual property to the extent necessary for the conduct of its respective business; (f) arrangements between the Company and any Subsidiary stock ownership plans of the Company for the purpose of providing services or employees to such Subsidiary; (g) any transaction entered into for in the purpose ordinary course of granting business and (v) transactions pursuant to agreements existing on the Issue Date or altering registration rights with respect any amendment thereto or any transactions contemplated thereby (including pursuant to any amendment thereto) in any replacement agreement thereto, so long as any such amendment or replacement is not more disadvantageous to the Capital Stock of holders in any material respect than the Company; and (h) any transaction or series of related transactions entered into prior to original agreement as in effect on the date hereofIssue Date, in each case, shall not be deemed Affiliate Transactions.
Appears in 1 contract
Limitation on Transactions with Affiliates. (a) The Company will not, and will not permit any of its Restricted Subsidiaries to, directly or indirectly, enter into or permit to exist any transaction or series of related transactions (including, without limitation, the purchase, sale, purchase, lease or exchange or lease of assets, any property or servicesthe rendering of any service) with with, or for the benefit of, any of any its Affiliates (each an "Affiliate of the Company (Transaction"), other than the Company or a Wholly Owned Subsidiary(x) unless such transaction or series of related transactions is entered into in good faith and in writing Affiliate Transactions permitted under paragraph (b) below and (ay) such transaction or series of related transactions is Affiliate Transactions on terms that are no less favorable to than those that might reasonably have been obtained in a comparable transaction at such time on an arm's-length basis from a Person that is not an Affiliate of the Company or such Restricted Subsidiary. All Affiliate Transactions (and each series of related Affiliate Transactions which are similar or part of a common plan) involving aggregate payments or other property with a fair market value in excess of $250,000 shall be approved by the Board of Directors of the Company or such Restricted Subsidiary, as the case may be, than those that would be reasonably expected such approval to be available in evidenced by a comparable Board Resolution stating that such Board of Directors has determined that such transaction in arm's-length dealings complies with the foregoing provisions. If the Company or any Restricted Subsidiary of the Company enters into an unrelated third party, Affiliate Transaction (b) with respect to any transaction or a series of related transactions involving Affiliate Transactions related to a common plan) that involves an aggregate fair market value in excess of more than $3 million2,500,000, the Company delivers an Officers' Certificate or such Restricted Subsidiary, as the case may be, shall, prior to the Trustee certifying that consummation thereof, obtain a favorable opinion as to the fairness of such transaction or series of related transactions complies with clause (a) above, and (c) with respect to any transaction or series of related transactions involving aggregate value in excess of $7 million, either (A) such transaction or series of related transactions has been approved by a majority of the Disinterested Directors of the Company, or in the event there is only one Disinterested Director, by such Disinterested Director, or (B) the Company delivers to the Trustee a written opinion of an investment banking firm of national standing or other recognized independent expert with experience appraising the terms and conditions of the type of transaction or series of related transactions for which an opinion is required stating that the transactions or series of related transactions is fair to the Company or such Subsidiary the relevant Restricted Subsidiary, as the case may be, from a financial point of view; provided, however, that this provision from an Independent Financial Advisor and file the same with the Trustee.
(b) The restrictions set forth in clause (a) shall not apply to: to (ai) reasonable fees and compensation paid to and employee benefit arrangements with any officerindemnity provided on behalf of, director officers, directors, employees or employee consultants of the Company or any Restricted Subsidiary of the Company as determined in good faith by the Company, including under any stock option 's Board of Directors or stock incentive plans, in the ordinary course of businesssenior management; (bii) any transaction solely transactions exclusively between or among the Company and/or and any Subsidiaries, if such transaction is otherwise in compliance with the Indenture and is on fair and reasonable terms; (c) any transaction otherwise permitted by the terms of the section of the Indenture described in Section 1009; (d) the execution and delivery of its Wholly Owned Restricted Subsidiaries or payments made under any tax sharing agreement exclusively between or among such Wholly Owned Restricted Subsidiaries, provided such transactions are not otherwise prohibited by this Indenture; (iii) any agreement as in effect as of the Company and any Subsidiary; (e) licensing or sublicensing of use of any intellectual property by the Company Issue Date or any Subsidiary amendment thereto or any transaction contemplated thereby (including pursuant to any Subsidiary of the Company; provided that the licensor shall continue to have access to amendment thereto) in any replacement agreement thereto so long as any such intellectual property amendment or replacement agreement is not more disadvantageous to the extent necessary for Holders in any material respect than the conduct of its respective business; (f) arrangements between original agreement as in effect on the Company and any Subsidiary of the Company for the purpose of providing services or employees to such Subsidiary; (g) any transaction entered into for the purpose of granting or altering registration rights with respect to the Capital Stock of the CompanyIssue Date; and (hiv) any transaction or series of related transactions entered into prior to the date hereofRestricted Payments permitted by this Indenture.
Appears in 1 contract
Limitation on Transactions with Affiliates. (a) The Company will Issuer shall not, and will shall not permit any of its Subsidiaries Restricted Subsidiary to, directly or indirectly, enter into any transaction or series of related transactions (including, without limitation, the sale, purchase, exchange or lease having a value in excess of assets, property or services) $10.0 million with or for the benefit of any an Affiliate of the Company (other than the Company Issuer or a Wholly Owned Restricted Subsidiary) , including any Investment, either directly or indirectly, unless such transaction or series of related transactions is entered into in good faith and in writing and (a) such transaction or series of related transactions is on terms that are no less favorable to the Company Issuer or such Subsidiary, as the case may be, Restricted Subsidiary than those that would could be reasonably expected to be available obtained in a comparable transaction in arm'sarm’s-length dealings transaction with an unrelated third party, (b) with respect entity that is not an Affiliate or is otherwise fair to the Issuer from a financial point of view. For any transaction or series of related transactions involving aggregate value in excess of $3 15.0 million, the Company delivers an Officers' Certificate to the Trustee certifying that such transaction or series of related transactions complies with clause (a) above, and (c) with respect to any transaction or series of related transactions involving aggregate value in excess of $7 million, shall be approved by either (Ax) such transaction or series of related transactions has been approved by a majority of the Disinterested Directors of the CompanyBoard of Directors of the Issuer, if any, or in the event there is only one Disinterested Director, by such Disinterested Director, or (By) the Company audit committee of the Board of Directors of the Issuer (with any Director on such committee that is not a Disinterested Director recusing himself or herself).
(b) The preceding requirements shall not apply to:
(1) any transaction pursuant to agreements in effect on the Issue Date, as these agreements may be amended, modified, supplemented, extended or renewed from time to time, so long as any such amendment, modification, supplement, extension or renewal is not more disadvantageous to the Holders in any material respect in the good faith judgment of the Board of Directors or senior management of the Issuer, when taken as a whole, than the terms of the agreements in effect on the Issue Date;
(2) any employment agreement or employee benefit arrangements with any officer or director, including under any stock option or stock incentive plans, entered into by the Issuer or any of its Restricted Subsidiaries in the ordinary course of business of the Issuer or such Restricted Subsidiary or approved by a majority of the disinterested members of the Board of Directors;
(3) transactions between or among the Issuer and/or its Restricted Subsidiaries and any Guarantees issued by the Issuer or a Restricted Subsidiary for the benefit of the Issuer or a Restricted Subsidiary, as the case may be, in accordance with Section 4.9;
(4) any transaction with any Person (x) that is not an Affiliate of the Issuer immediately before the consummation of such transaction that becomes an Affiliate of the Issuer as a result of such transaction or (y) that is an Affiliate of the Issuer solely because the Issuer, directly or indirectly, owns Capital Stock in, or controls, such Person;
(5) transactions with joint ventures entered into in the ordinary course of business, provided that no other Affiliate of the Issuer (other than a Subsidiary thereof) directly or indirectly holds any Capital Stock of such joint venture;
(6) payment of reasonable directors fees to Persons who are not otherwise employees of the Issuer;
(7) indemnities of officers, directors and employees of the Issuer or any Subsidiary of the Issuer pursuant to bylaws, or statutory provisions or indemnification agreements or the purchase of indemnification insurance for any director or officer;
(8) any Restricted Payment or Permitted Investment that is permitted to be made pursuant to Section 4.7;
(9) transactions with customers, clients, suppliers or purchasers or sellers of goods or services, in each case in the ordinary course of the business of the Issuer and its Restricted Subsidiaries and otherwise in compliance with the terms of this Indenture; provided that in the reasonable determination of the Issuer, such transactions are on terms that are no less favorable to the Issuer or the relevant Restricted Subsidiary than those that could have been obtained at the time of such transactions in a comparable transaction by the Issuer or such Restricted Subsidiary with an unrelated Person;
(10) the grant, issuance or sale of Capital Stock (other than Redeemable Stock) to Affiliates of the Issuer and the granting of registration rights and other customary rights in connection therewith;
(11) any transaction as to which the Issuer delivers to the Trustee a written opinion of an investment banking firm of national standing or other recognized independent expert with experience in appraising the terms and conditions of the type of transaction or series of related transactions for which an opinion is required stating that the transactions transaction or series of related transactions is fair to the Company Issuer or such Restricted Subsidiary from a financial point of view; provided, however, view or stating that this provision shall not apply to: (a) compensation and employee benefit arrangements with any officer, director or employee of the Company, including under any stock option or stock incentive plans, in the ordinary course of business; (b) any transaction solely between or among the Company and/or any Subsidiaries, if such transaction is otherwise in compliance with the Indenture and is on fair and reasonable terms; (c) any transaction otherwise permitted by the terms are no less favorable to the Issuer or such Restricted Subsidiary than those that could be obtained in a comparable arm’s-length transaction with an entity that is not an Affiliate; and
(12) written agreements entered into or assumed in connection with mergers or acquisitions of the section of the Indenture described in Section 1009; (d) the execution and delivery of or payments made under any tax sharing agreement between or among any of the Company and any Subsidiary; (e) licensing or sublicensing of use of any intellectual property by the Company or any Subsidiary other businesses with Persons who were not Affiliates prior to any Subsidiary of the Companysuch transactions; provided that the licensor shall continue to have access to such intellectual property agreement was not entered into in contemplation of such merger or acquisition, and any amendment thereto, so long as any such amendment is not disadvantageous to the extent necessary for Holders in the conduct of its respective business; (f) arrangements between the Company and any Subsidiary good faith judgment of the Company for Board of Directors or senior management of the purpose of providing services or employees to such Subsidiary; (g) any transaction entered into for the purpose of granting or altering registration rights with respect Issuer, when taken as a whole, as compared to the Capital Stock of the Company; and (h) any transaction or series of related transactions entered into prior to applicable agreement as in effect on the date hereofof such acquisition or merger.
Appears in 1 contract
Limitation on Transactions with Affiliates. The Company will shall not, and will shall not permit any of its Restricted Subsidiaries to, directly or indirectly, enter into or permit to exist any transaction or series of related transactions (including, without limitation, the purchase, sale, purchase, lease or exchange or lease of assets, any property or servicesthe rendering of any service) with or for the benefit of any of, an Affiliate of the Company or any Restricted Subsidiary (other than transactions between the Company or and a Wholly Owned Subsidiarywholly owned Restricted Subsidiary of the Company) unless such transaction or series of related transactions is entered into in good faith and in writing and (a) such transaction or series of related transactions is an "Affiliate Transaction"), other than Affiliate Transactions on terms that are no less favorable to in the Company or such Subsidiary, as the case may be, aggregate than those that would be might reasonably expected to be available have been obtained or are obtainable in a comparable transaction in on an arm's-length dealings with basis from a Person that is not an unrelated third party, (b) with respect to Affiliate; provided that neither the Company nor any transaction of its Restricted Subsidiaries shall enter into an Affiliate Transaction or series of related transactions Affiliate Transactions involving aggregate or having a value in excess of $3 million10 million or more, the Company delivers an Officers' Certificate to the Trustee certifying that such transaction or series of related transactions complies with clause (a) above, and (c) with respect to any transaction or series of related transactions involving aggregate value in excess of $7 million, either (A) such transaction or series of related transactions has been approved by unless a majority of disinterested members of the Disinterested Board of Directors of the Company, or Company determines in good faith as evidenced by a Board Resolution that the terms are no less favorable in the event there is only one Disinterested Director, by such Disinterested Director, or (B) the Company delivers to the Trustee a written opinion of an investment banking firm of national standing or other recognized independent expert with experience appraising the terms and conditions of the type of transaction or series of related transactions for which an opinion is required stating that the transactions or series of related transactions is fair aggregate to the Company or such Subsidiary than those that might reasonably have been obtained in a comparable transaction on an arm's-length basis from a financial point of viewPerson that 66 -58- is not an Affiliate; provided, however, that this provision shall not apply to: (ai) compensation and employee benefit arrangements with any officer, director employment agreement or employee of the Company, including under any stock option agreement entered into by the Company or stock incentive plans, any of its Restricted Subsidiaries in the ordinary course of business; , (bii) any transaction solely between or among the Company and/or any Subsidiariestransactions permitted under Section 4.03, if such transaction is otherwise in compliance with the Indenture and is on fair and reasonable terms; (c) any transaction otherwise permitted by the terms of the section of the Indenture described in Section 1009; (diii) the execution payment of reasonable fees and delivery of or payments made under any tax sharing agreement between or among any expenses to directors of the Company or its Restricted Subsidiaries, (iv) any issuance of securities or other payments, awards or grants in cash, securities or otherwise pursuant to, or the funding of employment arrangements, stock options and any Subsidiary; (e) licensing or sublicensing of use of any intellectual property by the Company or any Subsidiary to any Subsidiary of the Company; provided that the licensor shall continue to have access to such intellectual property to the extent necessary for the conduct of its respective business; (f) arrangements between the Company and any Subsidiary stock ownership plans of the Company for the purpose of providing services or employees to such Subsidiary; (g) any transaction entered into for in the purpose ordinary course of granting business and (v) transactions pursuant to agreements existing on the Issue Date or altering registration rights with respect any amendment thereto or any transactions contemplated thereby (including pursuant to any amendment thereto) in any replacement agreement thereto, so long as any such amendment or replacement is not more disadvantageous to the Capital Stock of holders in any material respect than the Company; and (h) any transaction or series of related transactions entered into prior to original agreement as in effect on the date hereofIssue Date, in each case, shall not be deemed Affiliate Transactions.
Appears in 1 contract
Limitation on Transactions with Affiliates. The Company will shall not, and shall not permit any of its Restricted Subsidiaries to, enter directly or indirectly into, or permit to exist, any transaction or series of related transactions with or for the benefit of any Affiliate except for transactions made in good faith, the terms of which are fair and reasonable to the Company or such Restricted Subsidiary, as the case may be, and are at least as favorable as the terms which could be obtained by the Company or such Restricted Subsidiary, as the case may be, in a comparable transaction made on an arm's length basis with Persons who are not Affiliates and the Company delivers to the Trustee (i) with respect to any transaction or series of related transactions with an Affiliate involving aggregate consideration in excess of $1,000,000, an Officers' Certificate certifying that such transaction or transactions comply with this covenant, (ii) with respect to any transaction or series of related transactions with an Affiliate involving aggregate consideration in excess of $2,000,000, a Board Resolution of the Board of Directors of the Company set forth in an Officers' Certificate certifying that such transaction or transactions comply with this covenant and that such transaction or transactions have been approved in good faith by a majority of the Disinterested Directors of such Board of Directors (which Board Resolution shall be conclusive evidence of compliance with this provision), provided that if there is not a majority of Disinterested Directors able to approve such transaction, the Company shall also deliver an opinion as to the fairness, from a financial point of view, to the Company or such Restricted Subsidiary of such transaction or transactions issued by an investment banking firm of recognized national standing, which opinion shall be conclusive evidence of compliance with this provision, and (iii) with respect to any transaction or series of related transactions with an Affiliate involving aggregate consideration in excess of $5,000,000, a Board Resolution of the Board of Directors of the Company set forth in an Officers' Certificate as described in subclause (ii) immediately above and an opinion as to the fairness, from a financial point of view, to the Company or such Restricted Subsidiary of such transaction or transactions issued by an investment banking firm of recognized national standing, which Board Resolution and opinion shall be conclusive evidence of compliance with this provision; provided, however, that this covenant will not restrict (a) transactions between the Company and any Subsidiary Guarantor or transactions between Subsidiary Guarantors, (b) Restricted Payments permitted by the provisions of Section 4.8, (c) any employee compensation arrangement by the Company or any of its Restricted Subsidiaries which has been approved by a majority of the Company's Disinterested Directors and found in good faith by such directors to be in the best interests of the Company or such Restricted Subsidiary, as the case may be, and (d) customary directors' fees and indemnification and similar arrangements. Notwithstanding the foregoing, the Company will not and will not permit any of its Subsidiaries to, directly or indirectly, enter into any transaction remunerate or series of related transactions (including, without limitation, the sale, purchase, exchange be or lease of assets, property become directly or services) with indirectly liable or obligated for the benefit remuneration of, director's or similar fees to any person solely by reason of serving as a director of the Board of Directors of any Affiliate of them in an amount for any fiscal year of the Company (which, when aggregated with all other than such fees paid or payable to such person by the Company and its Subsidiaries (as applicable) during such period solely by reason of serving as a director of all or any of them, exceeds $30,000, regardless of the number of entities for which such person served as a Wholly Owned Subsidiary) unless director; and for purposes of computing the $30,000 limitation in such transaction or series of related transactions is entered into in good faith and in writing and (a) such transaction or series of related transactions is on terms that are no less favorable to the Company or such Subsidiary, as the case may be, than those that would be reasonably expected to be available in a comparable transaction in arm's-length dealings with an unrelated third party, (b) with respect to any transaction or series of related transactions involving aggregate value in excess of $3 millionannual fees, the Company delivers an Officers' Certificate fair market value of all property transferred and services provided to the Trustee certifying that such transaction or series of related transactions complies with clause (a) aboveperson, and (c) with respect to any transaction or series of related transactions involving aggregate value without payment therefor, in excess of $7 million, either (A) such transaction or series of related transactions has been approved by a majority of the Disinterested Directors of the Company, or in the event there is only one Disinterested Directorcash, by such Disinterested Directorperson at the same fair market value of such property or services (as applicable), or (B) other than in exchange for, or incidental to, the Company delivers performance of services to the Trustee a written opinion of an investment banking firm of national standing or other recognized independent expert with experience appraising the terms and conditions of the type of transaction or series of related transactions for which an opinion is required stating that the transactions or series of related transactions is fair to the Company or such Subsidiary from a financial point of view; provided, however, that this provision shall not apply to: (a) compensation and employee benefit arrangements with any officer, director or employee of the Company, including under any stock option or stock incentive plans, in the ordinary course of business; (b) any transaction solely between or among the Company and/or any Subsidiaries, if such transaction is otherwise in compliance with the Indenture and is on fair and reasonable terms; (c) any transaction otherwise permitted by the terms of the section of the Indenture described in Section 1009; (d) the execution and delivery of or payments made under any tax sharing agreement between or among any of the Company and any Subsidiary; (e) licensing or sublicensing of use of any intellectual property by the Company or any Subsidiary by such person as an employee of any of them, will be added to any Subsidiary all cash payments of the Companysuch fees; provided that the licensor value of Capital Stock issued to a director as a director's fee or similar fee shall continue to have access not be subject to such intellectual property to the extent necessary for the conduct of its respective business; (f) arrangements between the Company and any Subsidiary of the Company for the purpose of providing services or employees to such Subsidiary; (g) any transaction entered into for the purpose of granting or altering registration rights with respect to the Capital Stock of the Company; and (h) any transaction or series of related transactions entered into prior to the date hereof$30,000 limitation.
Appears in 1 contract
Sources: Indenture (Ram Energy Inc/Ok)
Limitation on Transactions with Affiliates. The Company will not, and will not permit any of its Subsidiaries Restricted Subsidiary to, directly or indirectly, enter into any transaction or series with any of related transactions (their respective Affiliates, including, without limitation, the purchase, sale, purchaselease or exchange of property, exchange or lease of assets, property or services) with or for the benefit rendering of any Affiliate service, or the making of any guarantee, loan, advance or Investment, unless the Company (other than the Company or a Wholly Owned Subsidiary) unless terms of such transaction or series of related transactions is entered into in good faith and in writing and (a) such transaction or series of related transactions is on are at least as favorable as the terms that are no less favorable to could be obtained at such time by the Company or such Restricted Subsidiary, as the case may be, than those that would be reasonably expected to be available in a comparable transaction in arm's-length dealings made on an arms'-length basis with a Person that is not such an unrelated third partyAffiliate; provided, however, that (bx) with respect to any transaction or series of related transactions involving if the aggregate value in excess of consideration exceeds $3 1.0 million, the Company delivers shall deliver an Officers' Certificate to the Trustee certifying stating that such transaction or series of related transactions complies with clause (a) above, and (c) with respect to any transaction or series of related transactions involving aggregate value in excess of $7 million, either (A) such transaction or series of related transactions has been approved by a majority of the Disinterested Directors have determined, in their good faith judgment, that the terms of such transaction are at least as favorable as the terms that could be obtained at such time by the Company or such Restricted Subsidiary, as the case may be, in a comparable transaction made on an arms'-length basis with a Person that is not such an Affiliate and (y) if the aggregate consideration exceeds $5.0 million the Company shall also deliver to the Trustee, prior to the consummation of the Companytransaction, or in the event there is only one Disinterested Director, by such Disinterested Director, or (B) the Company delivers to the Trustee a favorable written opinion of an a nationally recognized accounting, appraisal or investment banking firm of national standing or other recognized independent expert with experience appraising as to the terms and conditions fairness of the type of transaction or series of related transactions for which an opinion is required stating that the transactions or series of related transactions is fair to the Company or such Subsidiary Restricted Subsidiary, from a financial point of view; provided, however, that this provision clause (y) shall not apply to: to (aI) compensation and employee benefit arrangements with any officer, director or employee transactions relating to the assumption by Trace of liabilities of the CompanyCompany or any Restricted Subsidiary under extended service contracts (or Trace's indemnification of the Company or any Restricted Subsidiary for liabilities thereof) or (II) the writing of extended service contracts by Trace to customers of the Company or any Restricted Subsidiary. The provisions of this covenant shall not apply to (i) transactions permitted by Section 4.06, including under (ii) reasonable fees and compensation paid to, and indemnity provided on behalf of, officers, directors and employees of the Company or any stock option or stock incentive plans, Restricted Subsidiary in the ordinary course of business; business and on ordinary business terms or as determined in good faith by the Board of Directors of the Company and (biii) any transaction transactions solely between or among the Company and/or any one or more Restricted Subsidiaries, if such transaction is otherwise in compliance with the Indenture and is on fair and reasonable terms; (c) any transaction otherwise permitted by the terms of the section of the Indenture described in . Section 1009; (d) the execution and delivery of or payments made under any tax sharing agreement between or among any of the Company and any Subsidiary; (e) licensing or sublicensing of use of any intellectual property by the Company or any Subsidiary to any Subsidiary of the Company; provided that the licensor shall continue to have access to such intellectual property to the extent necessary for the conduct of its respective business; (f) arrangements between the Company and any Subsidiary of the Company for the purpose of providing services or employees to such Subsidiary; (g) any transaction entered into for the purpose of granting or altering registration rights with respect to the Capital Stock of the Company; and (h) any transaction or series of related transactions entered into prior to the date hereof4.4.
Appears in 1 contract
Sources: Indenture (United Auto Group Inc)
Limitation on Transactions with Affiliates. (a) The Company will not, and will not permit any of its Subsidiaries to, directly or indirectly, enter into or permit to exist any transaction or series of related transactions (including, without limitation, the sale, purchase, exchange or lease of assets, assets or property or the rendering of services) with or for the benefit of any Affiliate of the Company (other than including entities in which the Company or any Subsidiary thereof owns a Wholly Owned Subsidiaryminority interest) unless (each such transaction transaction, an "Affiliate Transaction") or series extend, renew, waive or otherwise modify the terms of related transactions is any Affiliate Transaction entered into in good faith and in writing and prior to the Restatement Date other than Affiliate Transactions: (ai) such transaction or series of related transactions is on terms that are no less favorable Intercompany Transactions; or (ii) the terms of which are fair and reasonable to the Company or such Subsidiary, as the case may be, than those that would and the terms of such Affiliate Transaction are at least as favorable as the terms which could be reasonably expected to be available obtained by the Company or such Subsidiary, as the case may be, in a comparable transaction in made on an arm's-length dealings with basis between unaffiliated parties. In an unrelated third party, (b) with respect to any transaction Affiliate Transaction or series of related transactions Affiliate Transactions involving aggregate an amount or having a value in excess of $3 million100,000 that are not Intercompany Transactions, the Company delivers an Officers' Certificate to or such Subsidiary, as the Trustee certifying that such transaction or series of related transactions complies with clause (a) abovecase may be, and (c) with respect to any transaction or series of related transactions involving aggregate value in excess of $7 million, either (A) such transaction or series of related transactions has been approved by must obtain a majority resolution of the Disinterested Board of Directors of the Company, or in the event there is only one Disinterested Director, by such Disinterested Director, or (B) the Company delivers to the Trustee a written opinion of an investment banking firm of national standing or other recognized independent expert with experience appraising the terms and conditions of the type of transaction or series of related transactions for which an opinion is required stating that the transactions or series of related transactions is fair to the Company or such Subsidiary from a financial point as the case may be, certifying that such Affiliate Transaction or series of view; provided, however, that this provision related Affiliate Transactions complies with clause (ii) above.
(b) Section 4.12(a) shall not apply to: (ai) compensation and employee benefit arrangements any transaction with any current or former officer, director or employee of the CompanyCompany (in his or her capacity as such) (or the estate, including under heirs or legatees of any stock option or stock incentive plans, such individual) entered into in the ordinary course of business, including entering into employment or termination agreements, indemnification agreements and compensation and employee benefit plans; and (bii) any transaction solely between or among the Company and/or any Subsidiaries, if such transaction is otherwise in compliance with the Indenture and is on fair and reasonable terms; (c) any transaction otherwise permitted by the terms of the section of the Indenture described in Section 1009; (d) the execution and delivery of or payments made under any tax sharing agreement between or among any of the Company and any Subsidiary; (e) licensing or sublicensing of use of any intellectual property by the Company or any Subsidiary to any Subsidiary of the Company; provided that the licensor shall continue to have access to such intellectual property Restricted Payments to the extent necessary for not prohibited by Section 4.8 and other transactions specifically excluded from the conduct definition of its respective business; (f) arrangements between the Company and any Subsidiary "Restricted Payments" by reason of the Company for the purpose of providing services or employees to exceptions set forth in such Subsidiary; (g) any transaction entered into for the purpose of granting or altering registration rights with respect to the Capital Stock of the Company; and (h) any transaction or series of related transactions entered into prior to the date hereofdefinition.
Appears in 1 contract
Sources: Indenture (Healthcor Holdings Inc)
Limitation on Transactions with Affiliates. The Company will not, and will not permit any of its Restricted Subsidiaries to, directly or indirectly, enter into or suffer to exist any transaction or series of related transactions (including, without limitation, the sale, purchase, exchange or lease of assets, property or servicesservices or enter into or make any payment, loan, advance or guarantee) with or for the benefit of any Affiliate of the Company (other than the Company or a Wholly Owned Subsidiary) such Restricted Subsidiary unless such transaction or series of related transactions is entered into in good faith and in writing and (a) such transaction or series of related transactions is on terms that are no less favorable to the Company or such Restricted Subsidiary, as the case may be, than those that would be reasonably expected to be available in a comparable transaction in arm's-length dealings with an unrelated third party; provided, (b) with respect to any transaction or series of related transactions involving aggregate value in excess of $3 millionhowever, that, the Company delivers an Officers' Certificate will not, and will not permit any of its Restricted Subsidiaries to, enter into or suffer to the Trustee certifying that exist any such transaction or series of related transactions complies with clause which, individually or in the aggregate, involve payments in excess of (a) above$750,000, and unless an Officers' Certificate stating that such transaction complies with this covenant shall be delivered to the Trustee, (cb) with respect to any transaction or series of related transactions involving aggregate value in excess of $7 1.0 million, either (A) such transaction or series unless the prior good faith approval of related transactions has been approved by a majority of the Disinterested Directors of the Company, or Company shall have been obtained and Board Resolution relating thereto shall have been passed and set forth in an Officers' Certificate delivered to the event there is only one Disinterested Director, by such Disinterested DirectorTrustee, or (Bc) $5.0 million, unless the prior good faith approval of a majority of the Disinterested Directors of the Company delivers to shall have been obtained and the Trustee a written opinion Board of an Directors shall have obtained from any nationally recognized investment banking firm a favorable opinion as to the fairness to it of national standing or other recognized independent expert the transaction (copies of which shall be filed with experience appraising the Trustee); and provided, further that, the terms and conditions of the type of transaction or series of related transactions for which an opinion is required stating that the transactions or series of related transactions is fair to the Company or such Subsidiary from a financial point of view; provided, however, that this provision shall not apply to: to (ai) compensation reasonable fees and employee benefit arrangements with compensation, loans or options to purchase Common Stock, indemnification and other benefits paid or made available to directors and full time officers and employees of the Company or any of its Restricted Subsidiaries for services rendered in such person's capacity as an officer, director or employee of the CompanyCompany or the applicable Restricted Subsidiary, including under any stock option or stock incentive plans, in each case entered into in the ordinary course of business; business consistent with past practice, (bii) any transaction transactions with or among, or solely between or among for the Company and/or any Subsidiariesbenefit of, if such transaction is otherwise in compliance with the Indenture and is on fair and reasonable terms; (c) any transaction otherwise permitted by the terms of the section of the Indenture described in Section 1009; (d) the execution and delivery of or payments made under any tax sharing agreement between or among any of the Company and any Subsidiary; (e) licensing or sublicensing of use of any intellectual property by the Company or any of its Wholly-Owned Restricted Subsidiaries, (iii) transactions with an Unrestricted Subsidiary effected as part of a Securitization Transaction, and (iv) payments and other transactions pursuant to any Subsidiary of agreements in effect on the CompanyIssue Date and described in the Exchange Offer and Consent Solicitation Statement, as from time to time amended thereafter; provided that, as so amended, such agreements shall provide for terms that the licensor shall continue to have access to such intellectual property are, in aggregate, not more disadvantageous to the extent necessary for Holders of Securities in any material respect than as in effect on the conduct of its respective business; (f) arrangements between the Company and any Subsidiary of the Company for the purpose of providing services or employees to such Subsidiary; (g) any transaction entered into for the purpose of granting or altering registration rights with respect to the Capital Stock of the Company; and (h) any transaction or series of related transactions entered into prior to the date hereofIssue Date.
Appears in 1 contract
Sources: Indenture (510152 N B LTD)
Limitation on Transactions with Affiliates. The Company will shall not, and will shall not permit any of its Restricted Subsidiaries to, directly or indirectly, enter into or suffer to exist any transaction or series of related transactions (including, without limitation, the sale, purchase, exchange or lease of assets, property Property or services) with or for the benefit of any Affiliate of the Company (other than the Company or a Wholly Owned Restricted Subsidiary) unless such transaction or series of related transactions is entered into in good faith and in writing and (ai) such transaction or series of related transactions is on terms that are no less favorable to the Company or such Restricted Subsidiary, as the case may be, than those that would be reasonably expected to be available in a comparable transaction in arm's-length dealings with an unrelated third party, (bii) with respect to any a transaction or series of related transactions involving aggregate value payments in excess of $3 million1,000,000 in the aggregate, the Company delivers an Officers' Certificate to the Trustee certifying that such transaction or series of related transactions complies with clause (ai) above, and (ciii) with respect to any a transaction or series of related transactions involving aggregate value payments in excess of $7 million5,000,000 but less than $25,000,000 in the aggregate, either the Company delivers an Officers' Certificate to the Trustee certifying that (A) such transaction or series of related transactions complies with clause (i) above and (B) such transaction or series of related transactions shall have been approved by a majority of the Disinterested Directors of the Company and (iv) with respect to a transaction or series of related transactions involving payments of $25,000,000 or more in the aggregate, the Company delivers an Officers' Certificate to the Trustee certifying that (A) such transaction or series of related transactions complies with clause (i) above, (B) such transaction or series of related transactions shall have been approved by a majority of the Disinterested Directors of the Company and (C) the Company shall have received the written opinion of a nationally recognized investment banking firm or appraisal firm in the United States that such transaction or series of related transactions is fair, from a financial point of view, to the Company or such Restricted Subsidiary; provided, however, that the foregoing restriction shall not apply to (s) the provision of services and payments under the Torch Agreement, so long as the Torch Agreement (including any modifications, renewals, replacements or substitutions thereof or amendments thereto entered into on or after the date of this Indenture) has been approved by a majority of the Disinterested Directors of the Company, (t) loans or in the event there is only one Disinterested Directoradvances to officers, by such Disinterested Director, or (B) the Company delivers to the Trustee a written opinion directors and employees of an investment banking firm of national standing or other recognized independent expert with experience appraising the terms and conditions of the type of transaction or series of related transactions for which an opinion is required stating that the transactions or series of related transactions is fair to the Company or such any Restricted Subsidiary from a financial point of view; provided, however, that this provision shall not apply to: (a) compensation and employee benefit arrangements with any officer, director or employee of the Company, including under any stock option or stock incentive plans, made in the ordinary course of business; (b) any transaction solely between or among the Company and/or any Subsidiaries, if such transaction is otherwise in compliance business and consistent with the Indenture and is on fair and reasonable terms; (c) any transaction otherwise permitted by the terms of the section of the Indenture described in Section 1009; (d) the execution and delivery of or payments made under any tax sharing agreement between or among any past practices of the Company and its Restricted Subsidiaries in an aggregate amount not to exceed $3,000,000 outstanding at any Subsidiary; one time, (eu) licensing the payment of reasonable and customary regular fees to directors of the Company or sublicensing any of use its Restricted Subsidiaries who are not employees of the Company or any intellectual property by Affiliate, (v) the Company's employee compensation and other benefit arrangements, (w) indemnities of officers and directors of the Company or any Subsidiary to any Subsidiary of the Company; provided that the licensor shall continue to have access to consistent with such intellectual property to the extent necessary for the conduct of its respective business; Person's bylaws and applicable statutory provisions or (fx) arrangements between the Company and any Subsidiary of the Company for the purpose of providing services or employees to such Subsidiary; (g) any transaction entered into for the purpose of granting or altering registration rights with respect to the Capital Stock of the Company; and (h) any transaction or series of related transactions entered into prior to the date Restricted Payments permitted by Section 10.10 hereof.
Appears in 1 contract
Sources: Indenture (Nuevo Energy Co)
Limitation on Transactions with Affiliates. (A) The Company will shall not, and will shall not permit any of its Restricted Subsidiaries to, directly or indirectly, enter into into, amend or suffer to exist any transaction or series of related transactions (including, without limitation, the sale, purchase, exchange or lease of assets, property or services) with or for the benefit of any Affiliate (each, an "Affiliate Transaction") or extend, renew, waive or otherwise amend or modify the terms of any Affiliate Transaction entered into prior to the Issue Date unless:
(1) such Affiliate Transaction is between or among the Company and one or more of its Restricted Subsidiaries; or
(other than 2) the Company or a Wholly Owned Subsidiary) unless terms of such transaction or series of related transactions is entered into in good faith Affiliate Transaction are fair and in writing and (a) such transaction or series of related transactions is on terms that are no less favorable reasonable to the Company or such Restricted Subsidiary, as the case may be, than those and the terms of such Affiliate Transaction are at least as favorable as the terms that would could be reasonably expected to be available obtained by the Company or such Restricted Subsidiary, as the case may be, in a comparable transaction in made on an arm's-length dealings with an unrelated third party, basis between unaffiliated parties. In any Affiliate Transaction (b) with respect to or any transaction or series of related transactions Affiliate Transactions that are similar or part of a common plan) involving aggregate an amount or having a fair market value in excess of $3 million5.0 million that is not permitted under clause (1) above, the Company delivers an Officers' Certificate to must obtain a Board Resolution of the Trustee Board of Directors of the Company certifying that such transaction or series of related transactions Affiliate Transaction complies with clause (a2) above, and . In any Affiliate Transaction (c) with respect to or any transaction or series of related transactions Affiliate Transactions that are similar or part of a common plan) involving aggregate an amount or having a fair market value in excess of $7 million15.0 million that is not permitted under clause (1) above, either (A) the Company must obtain a favorable written opinion as to the fairness of such a transaction or series of related transactions has been approved by a majority of transactions, as the Disinterested Directors of the Companycase may be, or in the event there is only one Disinterested Director, by such Disinterested Director, or from an Independent Financial Advisor.
(B) the Company delivers to the Trustee a written opinion of an investment banking firm of national standing or other recognized independent expert with experience appraising the terms and conditions of the type of transaction or series of related transactions for which an opinion is required stating that the transactions or series of related transactions is fair to the Company or such Subsidiary from a financial point of view; provided, however, that this provision The foregoing provisions shall not apply to:
(a1) any Restricted Payment that is not prohibited by Section 4.11 or any Permitted Investment;
(2) reasonable fees and compensation paid to, and employee benefit arrangements with any officerindemnity provided on behalf of, director officers, directors or employee employees of the Company or any Restricted Subsidiary of the Company as determined in good faith by the Company, 's Board of Directors or senior management;
(3) any agreement as in effect as of the Issue Date or any amendment thereto or any transaction contemplated thereby (including under pursuant to any stock option amendment thereto) or stock incentive plans, in any replacement agreement thereto so long as any such amendment or replacement agreement is not more disadvantageous to the Holders in any material respect than the original agreement as in effect on the Issue Date;
(4) any employment agreement entered into by the Company or any of its Restricted Subsidiaries in the ordinary course of business; (b) any transaction solely between or among the Company and/or any Subsidiaries, if such transaction is otherwise in compliance business and consistent with the Indenture and is on fair and reasonable terms; (c) any transaction otherwise permitted by the terms of the section of the Indenture described in Section 1009; (d) the execution and delivery of or payments made under any tax sharing agreement between or among any past practice of the Company or such Restricted Subsidiary;
(5) bona fide transactions with an Excluded Entity consistent with past practice of the Company or the relevant Restricted Subsidiary;
(6) advances to employees for moving, entertainment and travel expenses and similar expenditures in the ordinary course of business and consistent with past practices;
(7) sales of Capital Stock (other than Disqualified Capital Stock) to Affiliates of the Company; and
(8) any Subsidiary; (e) licensing or sublicensing of use of any intellectual property effort by the Company or any Subsidiary to any Subsidiary of the Company; provided that the licensor shall continue to have access to such intellectual property to the extent necessary for the conduct of its respective business; (f) arrangements between Subsidiaries to enforce, or otherwise seek remedies under, the Company and any Subsidiary of the Company for the purpose of providing services or employees to such Subsidiary; (g) any transaction entered into for the purpose of granting or altering registration rights with respect to the Capital Stock of the Company; and (h) any transaction or series of related transactions entered into prior to the date hereofFormation Note.
Appears in 1 contract
Sources: Indenture (Mariner Health Care Inc)
Limitation on Transactions with Affiliates. (a) The Company will Issuer shall not, and will shall not permit any of its Restricted Subsidiaries to, directly or indirectly, enter into or suffer to exist any transaction or series of related transactions (including, without limitation, the sale, purchase, exchange or lease of assets, property or services) with any Affiliate (including entities in which the Issuer or for any of its Restricted Subsidiaries own a minority interest)(an "Affiliate Transaction") or extend, renew, waive or otherwise modify the benefit terms of any Affiliate Transaction entered into prior to the Issue Date if such extension, renewal, replacement, waiver or other modification is more disadvantageous to the Holders in any material respect than the original agreement as in effect on the Issue Date unless (i) such Affiliate Transaction is between or among the Issuer and/or its Restricted Subsidiaries and/or, in the event of the Company Asset Drop-Down, the Holding Company; or (other than ii) the Company or a Wholly Owned Subsidiary) unless terms of such transaction or series of related transactions is entered into in good faith Affiliate Transaction are fair and in writing and (a) such transaction or series of related transactions is on terms that are no less favorable reasonable to the Company Issuer or such Restricted Subsidiary, as the case may be, than those that would and the terms of such Affiliate Transaction are at least as favorable as the terms which could be reasonably expected to be available obtained by the Issuer or such Restricted Subsidiary, as the case may be, in a comparable transaction in made on an arm's-length dealings with basis between unaffiliated parties. In any Affiliate Transaction involving an unrelated third party, (b) with respect to any transaction amount or series of related transactions involving aggregate having a value in excess of $3 million2,000,000 which is not permitted under clause (i) above, the Company delivers an Officers' Certificate to Issuer must obtain a resolution of the Trustee Board of Directors of the Issuer certifying that such transaction or series of related transactions Affiliate Transaction complies with clause (aii) above, and (c) . In any Affiliate Transaction with respect to any transaction or series of related transactions involving aggregate a value in excess of $7 million10,000,000 which is not permitted under clause (i) above (other than any sale by the Issuer of its Capital Stock that is not Disqualified Capital Stock), either the Issuer must obtain a written opinion as to the fairness of such a transaction from an independent investment banking firm.
(Ab) such The limitations set forth in Section 4.11(a) shall not apply to (i) any Restricted Payment that is not prohibited by Section 4.09 hereof or Permitted Investment permitted by Section 4.13 hereof, (ii) any transaction pursuant to an agreement, arrangement or series of related transactions has been understanding existing on the Issue Date, (iii) any transaction, compensation or agreement approved by a majority the Board of the Disinterested Directors of the CompanyIssuer, with an officer or in the event there is only one Disinterested Director, by such Disinterested Director, director of or (B) the Company delivers consultant to the Trustee a written opinion Issuer or of an investment banking firm of national standing any Subsidiary in his or other recognized independent expert with experience appraising the terms and conditions of the type of transaction her capacity as officer or series of related transactions for which an opinion is required stating that the transactions or series of related transactions is fair to the Company or such Subsidiary from a financial point of view; provided, however, that this provision shall not apply to: (a) compensation and employee benefit arrangements with any officer, director or employee of the Company, including under any stock option or stock incentive plans, entered into in the ordinary course of business; , (iv) transactions permitted by Section 5.01 hereof, (v) any transaction (a) between the Issuer and any THL Group Member solely in its capacity as a holder or buyer of the Issuer's Capital Stock or (b) in the event of the Asset Drop-Down, between the New Operating Company and the Holding Company solely in its capacity as a holder or buyer of the New Operating Company's Capital Stock, provided that any such transaction described in this clause (v) is not otherwise prohibited by this Indenture, or (vi) in the event of the Asset Drop-Down, any commercially reasonable transaction between the New Operating Company and the Holding Company solely between in its capacity as a holder or among buyer of the Company and/or New Operating Company's Indebtedness provided that any Subsidiaries, if such transaction is not otherwise in compliance with the Indenture and is on fair and reasonable terms; (c) any transaction otherwise permitted prohibited by the terms of the section of the Indenture described in Section 1009; (d) the execution and delivery of or payments made under any tax sharing agreement between or among any of the Company and any Subsidiary; (e) licensing or sublicensing of use of any intellectual property by the Company or any Subsidiary to any Subsidiary of the Company; provided that the licensor shall continue to have access to such intellectual property to the extent necessary for the conduct of its respective business; (f) arrangements between the Company and any Subsidiary of the Company for the purpose of providing services or employees to such Subsidiary; (g) any transaction entered into for the purpose of granting or altering registration rights with respect to the Capital Stock of the Company; and (h) any transaction or series of related transactions entered into prior to the date hereofthis Indenture.
Appears in 1 contract
Sources: Indenture (United Industries Corp)
Limitation on Transactions with Affiliates. (a) The Company will Issuer shall not, and will shall not permit any of its Restricted Subsidiaries to, directly or indirectly, to enter into any transaction or series of related transactions (includingincluding the purchase, without limitation, the sale, purchase, lease or exchange or lease of assets, any property or services) with or for the benefit rendering of any Affiliate service) involving payment in excess of $25.0 million in any individual transaction with any of their respective Affiliates on terms that are less favorable to the Issuer or such Restricted Subsidiary, as the case may be (as determined by the Issuer in good faith), than those that might be obtained at the time in a comparable arm’s-length transaction from a Person who is not an Affiliate.
(b) In addition, prior to entering into (A) a Disposition of any assets of the Company Issuer or any Restricted Subsidiary to D▇▇▇▇ ▇’▇▇▇▇▇ or any of his controlled Affiliates (“Controlling Holder”) (other than the Company Issuer and its Subsidiaries) involving payments and/or other consideration in excess of $5 million or (B) any other transaction with a Wholly Owned Subsidiary) unless such Controlling Holder with an expected aggregate value at the time the transaction or series of related transactions is entered into involving payments in good faith excess of $25.0 million, the Issuer must in addition obtain a favorable written opinion from a nationally or regionally recognized investment banking, accounting or appraisal firm as to (i) the fairness of the transaction to the Issuer and in writing and its Restricted Subsidiaries from a financial point of view or (aii) that such transaction or series of related transactions is on terms that are no not materially less favorable to the Issuer and its Restricted Subsidiaries than could be obtained at the time in an arm’s length transaction with a Person who was not an Affiliate.
(c) Notwithstanding the foregoing, the restrictions set forth in this description shall not apply to:
(i) any transaction between or among the Issuer and/or one or more Restricted Subsidiaries (or any entity that becomes a Restricted Subsidiary as a result of such transaction) to the extent permitted or not restricted by this Indenture;
(ii) any issuance, sale or grant of securities or other payments, awards or grants in cash, securities or otherwise pursuant to, or the funding of, employment arrangements, stock options and stock ownership plans approved by the board of directors (or equivalent governing body) of any Parent Company, the Issuer or any Restricted Subsidiary;
(iii) provision of administrative, legal and regulatory, engineering, accounting, marketing, insurance and telecommunications services to Subsidiaries of the Issuer and the allocation of the cost of such services and of overhead and corporate group costs among the Issuer and its Subsidiaries consistent with IFRS and the Issuer’s accounting policies generally applied;
(iv) (A) transactions permitted by Section 4.06(b)(xiii) and Section 4.08 (including any Permitted Investment other than a Permitted Investment made pursuant to clause (b)(iii) of the definition thereof) and (B) issuances of Capital Stock and issuances and incurrences of Debt not restricted by this Indenture;
(v) transactions in existence on the Issue Date and any amendment, modification or extension thereof to the extent that such amendment, modification or extension, taken as a whole, is not (A) materially adverse to the Holders or (B) more disadvantageous to the Holders than the relevant transaction in existence on the Issue Date;
(vi) any payments pursuant to a tax sharing agreement between the Issuer and any other Person with which the Issuer files a consolidated tax return or with which the Issuer is part of a consolidated group for tax purposes;
(vii) Guarantees permitted by Section 4.06;
(viii) loans and other transactions among the Issuer and the Guarantor to the extent permitted under this Indenture;
(ix) customary directors’ fees, indemnification, expense reimbursement and similar arrangements (including the payment of directors’ and officers’ insurance premiums), consulting fees, financial advisory fees, employee salaries, bonuses, employment agreements and arrangements, compensation or employee benefit arrangements, including stock options or legal fees, so long as the Issuer’s board of directors (or equivalent body) has approved the terms thereof and deemed the services theretofore or thereafter to be performed for such compensation or payments to be fair consideration therefor;
(x) the payment of reasonable out-of-pocket costs and expenses related to registration rights and customary indemnities provided to shareholders under any shareholder agreement;
(xi) (A) any purchase by any Parent Company of the Capital Stock of (or such contribution to the equity capital of) the Issuer and (B) any intercompany loans made by any Parent Company to the Issuer or any Restricted Subsidiary; and
(xii) any transaction approved by a majority of the disinterested members of the board of directors (or equivalent governing body) of the Issuer or the applicable Restricted Subsidiary, as the case may be, than those that would be reasonably expected to be available in a comparable transaction in arm's-length dealings with an unrelated third party, (b) with respect to any transaction or series of related transactions involving aggregate value in excess of $3 million, the Company delivers an Officers' Certificate to the Trustee certifying that such transaction or series of related transactions complies with clause (a) above, and (c) with respect to any transaction or series of related transactions involving aggregate value in excess of $7 million, either (A) such transaction or series of related transactions has been approved by a majority of the Disinterested Directors of the Company, or in the event there is only one Disinterested Director, by such Disinterested Director, or (B) the Company delivers to the Trustee a written opinion of an investment banking firm of national standing or other recognized independent expert with experience appraising the terms and conditions of the type of transaction or series of related transactions for which an opinion is required stating that the transactions or series of related transactions is fair to the Company or such Subsidiary from a financial point of view; provided, however, provided that this provision exception shall not apply to: (a) compensation and employee benefit arrangements with any officer, director or employee of the Company, including under any stock option or stock incentive plans, in the ordinary course of business; (b) any transaction solely between or among the Company and/or any Subsidiaries, if such transaction is otherwise in compliance with the Indenture and is on fair and reasonable terms; (c) any transaction otherwise permitted by the terms of the section of the Indenture described in override Section 1009; (d) the execution and delivery of or payments made under any tax sharing agreement between or among any of the Company and any Subsidiary; (e) licensing or sublicensing of use of any intellectual property by the Company or any Subsidiary to any Subsidiary of the Company; provided that the licensor shall continue to have access to such intellectual property to the extent necessary for the conduct of its respective business; (f) arrangements between the Company and any Subsidiary of the Company for the purpose of providing services or employees to such Subsidiary; (g) any transaction entered into for the purpose of granting or altering registration rights with respect to the Capital Stock of the Company; and (h) any transaction or series of related transactions entered into prior to the date hereof4.10(b).
Appears in 1 contract
Sources: Indenture (Digicel Pacific LTD)
Limitation on Transactions with Affiliates. The Company will not, and will not permit permit, cause or suffer any of its Subsidiaries Restricted Subsidiary to, directly conduct any business or indirectly, enter into any transaction (or series of related transactions (including, without limitation, the sale, purchase, exchange which are similar or lease part of assets, property or servicesa common plan) with or for the benefit of any Affiliate of their respective Affiliates (other than Affiliates that are not also Affiliates of the Company or any Wholly Owned Restricted Subsidiary) or any beneficial holder of 10% or more of the Common Stock of the Company or any officer or director of the Company (other than each, an "Affiliate Transaction"), unless the Company or a Wholly Owned Subsidiary) unless such transaction or series terms of related transactions is entered into the Affiliate Transaction are set forth in good faith writing, and in writing are fair and (a) such transaction or series of related transactions is on terms that are no less favorable reasonable to the Company or such Restricted Subsidiary, as the case may be. Each Affiliate Transaction involving aggregate payments or other Fair Market Value in excess of $1.0 million shall be approved by a majority of the Board, such approval to be evidenced by a Board Resolution stating that the Board has determined that such transaction or transactions comply with the foregoing provisions. In addition 107 -99- to the foregoing, each Affiliate Transaction involving aggregate consideration of $5.0 million or more shall be approved by a majority of the Disinterested Directors; provided that, in lieu of such approval by the Disinterested Directors, the Company may obtain a written opinion from an Independent Financial Advisor stating that the terms of such Affiliate Transaction to the Company or the Restricted Subsidiary, as the case may be, than those that would be reasonably expected to be available in are fair from a comparable transaction in arm's-length dealings with an unrelated third partyfinancial point of view. For purposes of this Section 10.14, (b) with respect to any transaction or series of related transactions involving aggregate value in excess of $3 million, the Company delivers an Officers' Certificate to the Trustee certifying that such transaction or series of related transactions complies with clause (a) above, and (c) with respect to any transaction or series of related transactions involving aggregate value in excess of $7 million, either (A) such transaction or series of related transactions has been Affiliate Transaction approved by a majority of the Disinterested Directors of the Company, or in the event there is only one Disinterested Director, by such Disinterested Director, or (B) the Company delivers as to the Trustee which a written opinion of has been obtained from an investment banking firm of national standing or other recognized independent expert with experience appraising Independent Financial Advisor, on the basis set forth in the preceding sentence, shall be deemed to be on terms that are fair and conditions of the type of transaction or series of related transactions for which an opinion is required stating that the transactions or series of related transactions is fair reasonable to the Company or such Subsidiary from a financial point of view; providedthe Restricted Subsidiaries, howeveras the case may be, that and, therefore, shall be permitted under this provision Section 10.14. Notwithstanding the foregoing, the restrictions set forth in this Section 10.14 shall not apply to: to (ai) compensation and employee transactions with or among, or solely for the benefit arrangements with of, the Company and/or any officer, director or employee of the CompanyRestricted Subsidiaries, including under any stock option or stock incentive plans(ii) transactions pursuant to agreements and arrangements existing on the Issue Date, (iii) transactions related to the provision of internet services in the ordinary course of business; provided that (bx) any transaction solely between or among the Company and/or any Subsidiaries, if such transaction is otherwise in compliance with the Indenture transactions are entered into on an arm's length basis and is on are fair and reasonable terms; to the Company or such Restricted Subsidiary, as the case may be, and (cy) any transaction otherwise permitted by in the terms of the section of the Indenture described in Section 1009; (d) the execution and delivery of or payments made under any tax sharing agreement between or among any good faith judgment of the Company and any or the applicable Restricted Subsidiary; (e) licensing or sublicensing , the Fair Market Value of use of any intellectual property the consideration received by the Company or any Subsidiary to any Subsidiary such Restricted Subsidiary, as the case may be, reasonably approximates the Fair Market Value of the Company; provided that the licensor shall continue to have access to such intellectual property to the extent necessary for the conduct of its respective business; services provided, (fiv) arrangements between dividends paid by the Company pursuant to and in compliance with Section 10.13 hereof, (v) customary directors' fees, indemnification and similar arrangements, consulting fees, employee salaries, bonuses, employment agreements and arrangements, compensation or employee benefit arrangements or legal fees, (vi) transactions contemplated by any Subsidiary of the Company for Permitted Affiliate Agreements as in effect on the purpose Issue Date and (vii) grants of providing services or employees to such Subsidiary; (g) any transaction entered into for the purpose of granting or altering customary registration rights with respect to the Capital Stock securities of the Company; . The Company shall use, and (h) any transaction shall cause each Restricted Subsidiary to use, its commercially reasonable best efforts to ensure that each person in which the Company or series a Restricted Subsidiary makes an Investment that is an ISP at the time of related transactions entered into prior the Investment continues to meet the date hereof.conditions and requirements of the definition of "ISP" in all material respects until such time as a Rollup shall have occurred with respect to such ISP. 108 -100-
Appears in 1 contract
Sources: Indenture (Verio Inc)
Limitation on Transactions with Affiliates. The Company will shall not, and will shall not permit any of its Restricted Subsidiaries to, directly or indirectly, enter into or permit to exist any transaction or series of related transactions (including, without limitation, the purchase, sale, purchase, lease or exchange or lease of assets, any property or servicesthe rendering of any service) with or for the benefit of any of, an Affiliate of the Company or any Restricted Subsidiary (other than transactions between the Company or and a Wholly Owned Subsidiarywholly owned Restricted Subsidiary of the Company) unless such transaction or series of related transactions is entered into in good faith and in writing and (a) such transaction or series of related transactions is an "Affiliate Transaction"), other than Affiliate Transactions on terms that are no less favorable to in the Company or such Subsidiary, as the case may be, aggregate than those that would be might reasonably expected to be available have been obtained or are obtainable in a comparable transaction in on an arm's-length dealings with basis from a person that is not an unrelated third party, (b) with respect to Affiliate; provided that neither the Company nor any transaction of its Restricted Subsidiaries shall enter into an Affiliate Transaction or series of related transactions Affiliate Transactions involving aggregate or having a value in excess of $3 million10 million or more, the Company delivers an Officers' Certificate to the Trustee certifying that such transaction or series of related transactions complies with clause (a) above, and (c) with respect to any transaction or series of related transactions involving aggregate value in excess of $7 million, either (A) such transaction or series of related transactions has been approved by unless a majority of disinterested members of the Disinterested Board of Directors of the Company, or Company determines in good faith as evidenced by a board resolution that the terms are no less favorable in the event there is only one Disinterested Director, by such Disinterested Director, or (B) the Company delivers to the Trustee a written opinion of an investment banking firm of national standing or other recognized independent expert with experience appraising the terms and conditions of the type of transaction or series of related transactions for which an opinion is required stating that the transactions or series of related transactions is fair aggregate to the Company or such Subsidiary than those that might reasonably have been obtained in a comparable transaction on an arm's-length basis from a financial point of viewPerson that is not an Affiliate; provided, however, that this provision shall not apply to: (ai) compensation and employee benefit arrangements with any officer, director employment agreement or employee of the Company, including under any stock option agreement entered into by the Company or stock incentive plans, any of its Restricted Subsidiaries in the ordinary course of business; , (bii) any transaction solely between or among the Company and/or any Subsidiariestransactions permitted under Section 4.03, if such transaction is otherwise in compliance with the Indenture and is on fair and reasonable terms; (c) any transaction otherwise permitted by the terms of the section of the Indenture described in Section 1009; (diii) the execution payment of reasonable fees and delivery of or payments made under any tax sharing agreement between or among any expenses to directors of the Company or its Restricted Subsidiaries, (iv) any issuance of securities or other payments, awards or grants in cash, securities or otherwise pursuant to, or the funding of employment arrangements, stock options and any Subsidiary; (e) licensing or sublicensing of use of any intellectual property by the Company or any Subsidiary to any Subsidiary of the Company; provided that the licensor shall continue to have access to such intellectual property to the extent necessary for the conduct of its respective business; (f) arrangements between the Company and any Subsidiary stock ownership plans of the Company for the purpose of providing services or employees to such Subsidiary; (g) any transaction entered into for in the purpose ordinary course of granting business and (v) transactions pursuant to agreements existing on the Issue Date or altering registration rights with respect any amendment thereto or any transactions contemplated thereby (including pursuant to any amendment thereto) in any replacement agreement thereto, so long as any such amendment or replacement is not more disadvantageous to the Capital Stock of holders in any material respect than the Company; and (h) any transaction or series of related transactions entered into prior to original agreement as in effect on the date hereofIssue Date, in each case, shall not be deemed Affiliate Transactions.
Appears in 1 contract
Limitation on Transactions with Affiliates. (a) The Company will not, and will not permit any of its the Restricted Subsidiaries to, directly or indirectly, enter into or permit to exist any transaction or series of related transactions (including, without limitation, the purchase, sale, purchase, lease or exchange or lease of assets, any property or servicesthe rendering of any service) with or for the benefit of any an Affiliate of the Company or any Restricted Subsidiary (other than transactions between the Company and a Restricted Subsidiary or a Wholly Owned Subsidiarybetween Restricted Subsidiaries) unless such transaction or series of related transactions is entered into in good faith and in writing (an "Affiliate Transaction"), other than (x) Affiliate Transactions permitted under (b) below and (ay) such transaction or series of related transactions is Affiliate Transactions (including lease transactions) on terms that are no less favorable to the Company or the relevant Restricted Subsidiary in the aggregate than those that might reasonably have been obtained in a comparable transaction by the Company or such Restricted Subsidiary on an arm's-length basis (as determined in good faith by the Board of Directors of the Company, as evidenced by a Board Resolution) from a person that is not an Affiliate; provided that except as otherwise provided under (b) below, neither the Company nor any of the Restricted Subsidiaries shall enter into an Affiliate Transaction or series of related Affiliate Transactions involving or having a value of more than $5.0 million unless the Company or such Restricted Subsidiary, as the case may be, has received an opinion from an Independent Financial Advisor, with a copy thereof to the Trustee, to the effect that the financial terms of such Affiliate Transaction are fair and reasonable to the Company or such Restricted Subsidiary, as the case may be, and such terms are no less favorable to the Company or such Restricted Subsidiary, as the case may be, than those that would could be reasonably expected to be available obtained in a comparable transaction in on an arm's-length dealings basis with a person that is not an unrelated third party, Affiliate.
(b) with respect to any transaction or series of related transactions involving aggregate value in excess of $3 million, the Company delivers an Officers' Certificate to the Trustee certifying that such transaction or series of related transactions complies with clause (a) above, and (c) with respect to any transaction or series of related transactions involving aggregate value in excess of $7 million, either (A) such transaction or series of related transactions has been approved by a majority of the Disinterested Directors of the Company, or in the event there is only one Disinterested Director, by such Disinterested Director, or (B) the Company delivers to the Trustee a written opinion of an investment banking firm of national standing or other recognized independent expert with experience appraising the terms and conditions of the type of transaction or series of related transactions for which an opinion is required stating that the transactions or series of related transactions is fair to the Company or such Subsidiary from a financial point of view; provided, however, that this provision The foregoing provisions shall not apply to: to (a) compensation and employee benefit arrangements with any officer, director or employee of the Company, including under any stock option or stock incentive plans, in the ordinary course of business; (bi) any transaction solely between or among the Company and/or any Subsidiaries, if such transaction Restricted Payment that is otherwise made in compliance with the Indenture and is on fair and reasonable terms; Section 4.03, (cii) any transaction otherwise permitted by the terms of the section of the Indenture described in Section 1009; (d) the execution and delivery of or payments made under any tax sharing agreement between or among any of the Company and any Subsidiary; (e) licensing or sublicensing of use of any intellectual property by the Company or any Subsidiary to any Subsidiary of the Company; provided that Restricted Subsidiaries to Renco of the licensor shall continue amounts set forth in clauses (4), (5) and (6) of the second paragraph Section 4.03, (iii) repayment of Indebtedness, including accrued interest thereon, owing to have access Renco as of the Issue Date with the net proceeds of the issuance of Securities on the Issue Date, (iv) repayment of Indebtedness owing to such intellectual property Renco incurred after the Issue Date in accordance with its terms and (v) reasonable and customary regular fees to the extent necessary for the conduct directors of its respective business; (f) arrangements between the Company and any Subsidiary the Restricted Subsidiaries who are not employees of the Company for and the purpose of providing services or employees to such Subsidiary; (g) any transaction entered into for the purpose of granting or altering registration rights with respect to the Capital Stock of the Company; and (h) any transaction or series of related transactions entered into prior to the date hereofRestricted Subsidiaries.
Appears in 1 contract
Limitation on Transactions with Affiliates. (a) The Company will shall not, and will shall not permit any of its Restricted Subsidiaries to, directly or indirectly, enter into or suffer to exist any transaction or series of related transactions (including, without limitation, the sale, purchase, exchange or lease of assets, property or services) with or for the benefit of any Affiliate (including entities in which the Company or any of its Restricted Subsidiaries own a minority interest) or holder of 10% or more of the Common Stock of the Company (other than an "AFFILIATE TRANSACTION") or extend, renew, waive or otherwise modify the terms of any Affiliate Transaction entered into prior to the Issue Date unless (i) such Affiliate Transaction is between or among the Company and its Wholly-Owned Restricted Subsidiaries; or a Wholly Owned Subsidiary(ii) unless the terms of such transaction or series of related transactions is entered into in good faith Affiliate Transaction are fair and in writing and (a) such transaction or series of related transactions is on terms that are no less favorable reasonable to the Company or such Restricted Subsidiary, as the case may be, than those that would and the terms of such Affiliate Transaction are at least as favorable as the terms which could be reasonably expected to be available obtained by the Company or such Restricted Subsidiary, as the case may be, in a comparable transaction in made on an arm's-length dealings with basis between unaffiliated parties. In any Affiliate Transaction involving an unrelated third party, (b) with respect to any transaction amount or series of related transactions involving aggregate having a value in excess of $3 million1.0 million which is not permitted under clause (i) above, the Company delivers an Officers' Certificate to must obtain a resolution of the Trustee Board of Directors certifying that such transaction or series of related transactions Affiliate Transaction complies with clause (aii) above, and (c) . In transactions with respect to any transaction or series of related transactions involving aggregate a value in excess of $7 million5.0 million which are not permitted under clause (i) above, either the Company must obtain a written opinion as to the fairness of such a transaction from a nationally recognized independent investment banking firm.
(Ab) such transaction or series of related transactions has been The foregoing provisions will not apply to (i) any Restricted Payment that is not prohibited by Section 4.09 hereof, (ii) any transaction, approved by a majority the Board of the Disinterested Directors of the Company, with an officer or in the event there is only one Disinterested Director, by such Disinterested Director, or (B) the Company delivers to the Trustee a written opinion director of an investment banking firm of national standing or other recognized independent expert with experience appraising the terms and conditions of the type of transaction or series of related transactions for which an opinion is required stating that the transactions or series of related transactions is fair to the Company or such of any Subsidiary from a financial point of view; provided, however, that this provision shall not apply to: (a) compensation and employee benefit arrangements with any officer, in his or her capacity as officer or director or employee of the Company, including under any stock option or stock incentive plans, entered into in the ordinary course of business; , (biii) any transaction solely transactions with KECC for advisory services to the extent the payment for such services do not exceed $200,000 per year, (iv) customary banking transactions with an Affiliate of KECC, (v) reasonable fees and compensation paid to and indemnity provided on behalf of, officers, directors, employees or consultants of the Company or any Subsidiary of the Company as determined in good faith by the Company's Board of Directors, or (vi) transactions exclusively between or among the Company and/or and any Subsidiaries, if such transaction is otherwise in compliance with the Indenture and is on fair and reasonable terms; (c) any transaction otherwise permitted by the terms of the section of the Indenture described in Section 1009; (d) the execution and delivery of its Restricted Subsidiaries or payments made under any tax sharing agreement exclusively between or among any of the Company and any Subsidiary; (e) licensing or sublicensing of use of any intellectual property such Restricted Subsidiaries, provided such transactions are not otherwise prohibited by the Company or any Subsidiary to any Subsidiary of the Company; provided that the licensor shall continue to have access to such intellectual property to the extent necessary for the conduct of its respective business; (f) arrangements between the Company and any Subsidiary of the Company for the purpose of providing services or employees to such Subsidiary; (g) any transaction entered into for the purpose of granting or altering registration rights with respect to the Capital Stock of the Company; and (h) any transaction or series of related transactions entered into prior to the date hereofthis Indenture.
Appears in 1 contract
Sources: Indenture (Glasstech Inc)
Limitation on Transactions with Affiliates. The (a) Neither the Company will not, and will not permit nor any of its Subsidiaries toRestricted Subsidiary will, directly or indirectly, conduct any business or enter into or permit to exist any transaction or series of related transactions (including, without limitationbut not limited to, the purchase, sale, purchaseconveyance, transfer, disposition, exchange or lease of assetsProperty, property the making of any payment, the making of any Investment, the giving of any Guarantee, the rendering of services or servicesthe paying of any commission) with with, or for the benefit of, any of any their Affiliates (each an "Affiliate of the Company (other than the Company or a Wholly Owned Subsidiary) unless such transaction or series of related transactions is entered into in good faith and Transaction"), except under an agreement set forth in writing and (a) such transaction or series of related transactions which is on terms that are no less favorable to the Company or such Restricted Subsidiary, as the case may be, than those that would be reasonably expected to be available could have been obtained in a comparable transaction in on an arm's-length dealings with basis from a Person not an unrelated third partyAffiliate of the Company or such Restricted Subsidiary and if it involves a purchase, such purchase is reasonably necessary in light of the operating requirements of the Company and its Subsidiaries. If the Company or any Restricted Subsidiary enters into an Affiliate Transaction (b) with respect to any transaction or a series of related transactions Affiliate Transactions) involving aggregate value payments or other Property with a Fair Market Value in excess of (i) $3 1.0 million, the Company delivers or such Restricted Subsidiary shall, prior to the consummation thereof, deliver to the Trustee an Officers' Certificate to the Trustee certifying that such transaction or series of related transactions complies with the foregoing provisions, (ii) $2.5 million, the Company or such Restricted Subsidiary shall, prior to the consummation thereof, deliver to the Trustee the Officers' Certificate specified in clause (ai) aboveabove and an approval by the Board of Directors of the Company (including a majority of the independent directors thereof), and (c) with respect such approval to any transaction or series be evidenced by a Board Resolution stating that such Board of related transactions involving aggregate value in excess of $7 million, either (A) Directors has determined that such transaction or series of related transactions has been approved by a majority of complies with the Disinterested Directors of the Companyforegoing provisions and (iii) $5.0 million, or in the event there is only one Disinterested Director, by such Disinterested Director, or (B) the Company delivers or such Restricted Subsidiary shall, prior to the consummation thereof, deliver to the Trustee the Officers' Certificate specified in clause (i) above, the Board Resolution specified in clause (ii) above and a written favorable opinion as to the fairness of an investment banking firm of national standing or other recognized independent expert with experience appraising the terms and conditions of the type of such transaction or series of related transactions for which an opinion is required stating that the transactions or series of related transactions is fair to the Company or such Subsidiary the relevant Restricted Subsidiary, as the case may be, from a financial point of view; provided, however, that this provision from an Independent Financial Advisor addressed to the Trustee.
(b) The foregoing restriction shall not apply toto the following transactions: (ai) compensation any transaction exclusively between the Company and employee benefit arrangements with any officerof its Wholly-Owned Subsidiaries or exclusively between any Wholly-Owned Subsidiaries, director or employee (ii) reasonable and customary fees paid to members of the CompanyBoard of Directors of the Company and of its Subsidiaries, including under (iii) loans and advances to employees, officers and directors in the ordinary course of business in an aggregate principal amount not to exceed $1.0 million at any stock option or stock incentive plansone time outstanding and advances to employees for moving, entertainment and travel expenses, drawing accounts and similar expenditures in the ordinary course of business; , (biv) any transaction solely between reasonable and customary fees and compensation paid to, and indemnity provided on behalf of, officers, directors or among the Company and/or any Subsidiaries, if such transaction is otherwise in compliance with the Indenture and is on fair and reasonable terms; (c) any transaction otherwise permitted by the terms employees of the section of the Indenture described in Section 1009; (d) the execution and delivery of or payments made under any tax sharing agreement between or among any of the Company and any Subsidiary; (e) licensing or sublicensing of use of any intellectual property by the Company or any of its Subsidiaries, as determined by the Board of Directors of the Company or any such Restricted Subsidiary or the senior management thereof in good faith, including, without limitation, issuances of stock, payment of bonuses and other transactions pursuant to employment or compensation agreements, stock option agreements, indemnification agreements and other arrangements in effect on the Issue Date or substantially similar thereto, (v) the payment of the management fees to G&G Investments under the Management Agreement of up to $3.0 million in any calendar year, (vi) other Restricted Payments made pursuant to the first paragraph of Section 4.10, (vii) payments or other transactions pursuant to any Subsidiary of the Company; provided that the licensor shall continue to have access to such intellectual property to the extent necessary for the conduct of its respective business; (f) arrangements tax sharing arrangement between the Company and any Subsidiary of other Person with which the Company files a consolidated tax return or with which the Company is part of a consolidated group for the purpose of providing services or employees to such Subsidiary; (g) any transaction entered into for the purpose of granting or altering registration rights with respect tax purposes but only to the Capital Stock extent that amounts payable from time to time by the Company under any such agreement do not exceed the corresponding tax payments that the Company would have been required to make to any relevant taxing authority had the Company not joined in such consolidated or combined return, but instead had filed returns including only the Company and (viii) transactions pursuant to the Intercompany Agreement. The Company will not amend the Intercompany Agreement unless such amendment is in writing and the Company determines that it contains terms no less favorable to the Company than could have been obtained in comparable transactions on an arm's-length basis from a Person not an Affiliate of the Company; , such determination to be evidenced by an Officers' Certificate and a Board Resolution stating that a majority of the Board of Directors (hincluding a majority of the independent directors thereof) any transaction or series of related transactions entered into prior to have determined that such amendment complies with the date hereofforegoing provisions.
Appears in 1 contract
Limitation on Transactions with Affiliates. The Company will shall not, and will shall not permit any of its Subsidiaries to, directly or indirectly, enter into any contract, agreement, arrangement or transaction with any Affiliate (an "Affiliate Transaction") or any series of related Affiliate Transactions, unless such Affiliate Transaction is made in good faith, the terms of such Affiliate Transaction are fair and reasonable to the Company or such Subsidiary, as the case may be, and are on terms at least as favorable as the terms which could be obtained by the Company or such Subsidiary, as the case may be, in a comparable transaction made on an arm's-length basis with Persons who are not Affiliates; provided that the foregoing restrictions shall not apply to Exempted Affiliate Transactions. Without limiting the foregoing, any Affiliate Transaction or series of related transactions Affiliate Transactions (includingi) involving consideration to either party in excess of $2,000,000, without limitation, the sale, purchase, exchange or lease must be evidenced by a resolution of assets, property or services) with or for the benefit a committee of any Affiliate non-employee directors of the Company who are disinterested with respect to such transaction (other than an "Independent Committee"), set forth in an Officers' Certificate addressed and delivered to the Trustee, certifying that (a) the terms of such Affiliate Transaction are fair and reasonable to the Company or a Wholly Owned such Subsidiary) unless such transaction or series of related transactions is entered into in good faith , as the case may be, and in writing and (a) such transaction or series of related transactions is on terms that are no less favorable to the Company or such Subsidiary, as the case may be, than those that would be reasonably expected to be available could have been obtained in a comparable transaction in an arm's-length dealings transaction with an unrelated third party, a non-Affiliate and (b) with respect to any transaction or series of related transactions involving aggregate value in excess of $3 million, the Company delivers an Officers' Certificate to the Trustee certifying that such transaction or series of related transactions complies with clause (a) above, and (c) with respect to any transaction or series of related transactions involving aggregate value in excess of $7 million, either (A) such transaction or series of related transactions Affiliate Transaction has been approved by a majority of the Disinterested Directors members of an Independent Committee, and (ii) involving consideration to either party in excess of $5,000,000 must be evidenced by a resolution of an Independent Committee in accordance with the Companyforegoing clause (i) and, or in prior to the event there is only one Disinterested Directorconsummation thereof, by such Disinterested Director, or (B) the Company delivers an Officers' Certificate addressed and delivered to the Trustee certifying to the receipt of (and enclosing a copy of ) a written favorable opinion as to the fairness of such transaction to the Company or such Subsidiary, as the case may be, from a financial point of view from an independent investment banking firm of national standing or other recognized independent expert with experience appraising the terms and conditions of the type of transaction or series of related transactions for which an opinion is required stating that the transactions or series of related transactions is fair to the Company or such Subsidiary from a financial point of view; provided, however, that this provision shall not apply to: (a) compensation and employee benefit arrangements with any officer, director or employee of the Company, including under any stock option or stock incentive plans, in the ordinary course of business; (b) any transaction solely between or among the Company and/or any Subsidiaries, if such transaction is otherwise in compliance with the Indenture and is on fair and reasonable terms; (c) any transaction otherwise permitted by the terms of the section of the Indenture described in Section 1009; (d) the execution and delivery of or payments made under any tax sharing agreement between or among any of the Company and any Subsidiary; (e) licensing or sublicensing of use of any intellectual property by the Company or any Subsidiary to any Subsidiary of the Companyreputation; provided that the licensor foregoing restrictions shall continue not apply to have access to such intellectual property to Exempted Affiliate Transactions. The Trustee may conclusively rely upon an Officers' Certificate provided in accordance with this paragraph that there has been compliance with the extent necessary for covenants set forth in the conduct of its respective business; (f) arrangements between the Company and any Subsidiary of the Company for the purpose of providing services or employees to such Subsidiary; (g) any transaction entered into for the purpose of granting or altering registration rights with respect to the Capital Stock of the Company; and (h) any transaction or series of related transactions entered into prior to the date hereofpreceding paragraph.
Appears in 1 contract
Sources: Indenture (HPSC Inc)
Limitation on Transactions with Affiliates. The Company will shall not, and will shall not permit any of its Restricted Subsidiaries to, enter directly or indirectlyindirectly into, enter into or permit to exist, any transaction or series of related transactions (including, without limitation, the sale, purchase, exchange or lease of assets, property or services) with or for the benefit of any Affiliate of the Company (other than the Company or a Wholly Owned Subsidiary) unless such transaction or series of related except for transactions is entered into made in good faith faith, the terms of which are fair and in writing and (a) such transaction or series of related transactions is on terms that are no less favorable reasonable to the Company or such Restricted Subsidiary, as the case may be, than those that would and are at least as favorable as the terms which could be reasonably expected to be available obtained by the Company or such Restricted Subsidiary, as the case may be, in a comparable transaction in arm's-made on an arm's length dealings basis with an unrelated third party, Persons who are not Affiliates and the Company delivers to the Trustee (bi) with respect to any transaction or series of related transactions with an Affiliate involving aggregate value consideration in excess of $3 million1,000,000, the Company delivers an Officers' Certificate to the Trustee certifying that such transaction or series of related transactions complies comply with clause this covenant, (a) above, and (cii) with respect to any transaction or series of related transactions with an Affiliate involving aggregate value consideration in excess of $7 million2,000,000, either a Board Resolution of the Board of Directors of the Company set forth in an Officers' Certificate certifying that such transaction or transactions comply with this covenant and that such transaction or transactions have been approved in good faith by a majority of the Disinterested Directors of such Board of Directors (Awhich Board Resolution shall be conclusive evidence of compliance with this provision), PROVIDED THAT if there is not a majority of Disinterested Directors able to approve such transaction, the Company shall also deliver an opinion as to the fairness, from a financial point of view, to the Company or such Restricted Subsidiary of such transaction or transactions issued by an investment banking firm of recognized national standing, which opinion shall be conclusive evidence of compliance with this provision, and (iii) such with respect to any transaction or series of related transactions with an Affiliate involving aggregate consideration in excess of $5,000,000, a Board Resolution of the Board of Directors of the Company set forth in an Officers' Certificate as described in SUBCLAUSE (ii) immediately above and an opinion as to the fairness, from a financial point of view, to the Company or such Restricted Subsidiary of such transaction or transactions issued by an investment banking firm of recognized national standing, which Board Resolution and opinion shall be conclusive evidence of compliance with this provision; PROVIDED, HOWEVER, that this covenant will not restrict (a) transactions between the Company and any Subsidiary Guarantor or transactions between Subsidiary Guarantors, (b) Restricted Payments permitted by the provisions of SECTION 4.8, (c) any employee compensation arrangements by the Company or any of its Restricted Subsidiaries which has been approved by a majority of the Company's Disinterested Directors of the Company, or and found in good faith by such directors to be in the event there is only one Disinterested Director, by such Disinterested Director, or (B) the Company delivers to the Trustee a written opinion best interests of an investment banking firm of national standing or other recognized independent expert with experience appraising the terms and conditions of the type of transaction or series of related transactions for which an opinion is required stating that the transactions or series of related transactions is fair to the Company or such Subsidiary from a financial point of view; providedRestricted Subsidiary, howeveras the case may be, that this provision shall not apply to: (a) compensation and employee benefit arrangements with any officer, director or employee of the Company, including under any stock option or stock incentive plans, in the ordinary course of business; (b) any transaction solely between or among the Company and/or any Subsidiaries, if such transaction is otherwise in compliance with the Indenture and is on fair and reasonable terms; (c) any transaction otherwise permitted by the terms of the section of the Indenture described in Section 1009; (d) the execution customary directors' fees and delivery of or payments made under any tax sharing agreement between or among any of the Company indemnification and any Subsidiary; (e) licensing or sublicensing of use of any intellectual property by the Company or any Subsidiary to any Subsidiary of the Company; provided that the licensor shall continue to have access to such intellectual property to the extent necessary for the conduct of its respective business; (f) arrangements between the Company and any Subsidiary of the Company for the purpose of providing services or employees to such Subsidiary; (g) any transaction entered into for the purpose of granting or altering registration rights with respect to the Capital Stock of the Company; and (h) any transaction or series of related transactions entered into prior to the date hereofsimilar arrangements.
Appears in 1 contract
Sources: Indenture (Ram Energy Inc/Ok)
Limitation on Transactions with Affiliates. (a) The Company will shall not, and will shall not permit any of its Restricted Subsidiaries to, directly or indirectly, enter into or suffer to exist any transaction or series of related transactions (including, without limitation, the sale, purchase, exchange or lease of assets, property or services) with any Affiliate (including entities in which the Company or for any of its Restricted Subsidiaries own a minority interest) or holder of 10% or more of the benefit Company's Common Stock (an "Affiliate Transaction"), or extend, renew, waive or otherwise modify the terms of any Affiliate of Transaction entered into prior to the Issue Date unless (i) such Affiliate Transaction is between or among the Company and its Wholly-Owned Subsidiaries or (other than ii) the Company or a Wholly Owned Subsidiary) unless terms of such transaction or series of related transactions is entered into in good faith Affiliate Transaction are fair and in writing and (a) such transaction or series of related transactions is on terms that are no less favorable reasonable to the Company or such Restricted Subsidiary, as the case may be, than those that would and the terms of such Affiliate Transaction are at least as favorable as the terms which could be reasonably expected to be available obtained by the Company or such Restricted Subsidiary, as the case may be, in a comparable transaction in made on an arm's-length dealings basis between unaffiliated parties. In any Affiliate Transaction involving an amount or having a value in excess of $1 million which is not permitted under clause (i) above, the Company must obtain a resolution of the Board of Directors certifying that such Affiliate Transaction complies with an unrelated third party, clause (bii) above. In transactions with respect to any transaction or series of related transactions involving aggregate a value in excess of $3 millionmillion which are not permitted under clause (i) above, the Company delivers an Officers' Certificate must obtain a written opinion as to the Trustee certifying fairness of such a transaction from an independent investment banking firm or a firm experienced in the subject matter of the Affiliate Transaction in question.
(b) The foregoing provisions shall not apply to (i) any Restricted Payment that such transaction or series of related transactions complies with clause is not prohibited by Section 4.09 hereof, (aii) aboveany transaction, and (c) with respect to any transaction or series of related transactions involving aggregate value in excess of $7 million, either (A) such transaction or series of related transactions has been approved by a majority the Board of the Disinterested Directors of the Company, with an officer or in the event there is only one Disinterested Director, by such Disinterested Director, or (B) the Company delivers to the Trustee a written opinion director of an investment banking firm of national standing or other recognized independent expert with experience appraising the terms and conditions of the type of transaction or series of related transactions for which an opinion is required stating that the transactions or series of related transactions is fair to the Company or such of any Subsidiary from a financial point in his or her capacity as officer or director entered into in the ordinary course of view; providedbusiness, however, that this provision shall not apply to: (a) including compensation and employee benefit arrangements with any officer, officer or director or employee of the Company, including under any stock option or stock incentive plans, in the ordinary course of business; (b) any transaction solely between or among the Company and/or any Subsidiaries, if such transaction is otherwise in compliance with the Indenture and is on fair and reasonable terms; (c) any transaction otherwise permitted by the terms of the section of the Indenture described in Section 1009; (d) the execution and delivery of or payments made under any tax sharing agreement between or among any of the Company and any Subsidiary; (e) licensing or sublicensing of use of any intellectual property by the Company or any Subsidiary to any Subsidiary of its Subsidiaries, (iii) capital contributions made by the Company; provided that the licensor shall continue to have access to such intellectual property Parent to the extent necessary for the conduct of its respective business; (f) arrangements between Company or made by the Company and any Subsidiary its Subsidiaries to Subsidiaries of the Company or (iv) if no Default or Event of Default has occurred and is continuing, payments by the Company pursuant to the Gill▇▇▇ ▇▇▇agement Agreement for the purpose of providing services or employees specified in the Gill▇▇▇ ▇▇▇agement Agreement as in effect on the Issue Date in an amount not to such Subsidiary; (g) exceed $350,000 in any transaction entered into for the purpose of granting or altering registration rights with respect to the Capital Stock of the Company; and (h) any transaction or series of related transactions entered into prior to the date hereoffiscal year.
Appears in 1 contract
Sources: Indenture (Ski Lifts Inc)
Limitation on Transactions with Affiliates. The Company will not, and will not permit permit, cause or suffer any of its Subsidiaries Restricted Subsidiary to, directly conduct any business or indirectly, enter into any transaction (or series of related transactions (including, without limitation, the sale, purchase, exchange which are similar or lease part of assets, property or servicesa common plan) with or for the benefit of any Affiliate of their respective Affiliates (other than Affiliates that are not also Affiliates of the Company or any 105 -97- Wholly Owned Restricted Subsidiary) or any beneficial holder of 10% or more of the Common Stock of the Company or any officer or director of the Company (other than each, an "Affiliate Transaction"), unless the Company or a Wholly Owned Subsidiary) unless such transaction or series terms of related transactions is entered into the Affiliate Transaction are set forth in good faith writing, and in writing are fair and (a) such transaction or series of related transactions is on terms that are no less favorable reasonable to the Company or such Restricted Subsidiary, as the case may be. Each Affiliate Transaction involving aggregate payments or other Fair Market Value in excess of $1.0 million shall be approved by a majority of the Board, such approval to be evidenced by a Board Resolution stating that the Board has determined that such transaction or transactions comply with the foregoing provisions. In addition to the foregoing, each Affiliate Transaction involving aggregate consideration of $5.0 million or more shall be approved by a majority of the Disinterested Directors; provided that, in lieu of such approval by the Disinterested Directors, the Company may obtain a written opinion from an Independent Financial Advisor stating that the terms of such Affiliate Transaction to the Company or the Restricted Subsidiary, as the case may be, than those that would be reasonably expected to be available in are fair from a comparable transaction in arm's-length dealings with an unrelated third partyfinancial point of view. For purposes of this Section 10.14, (b) with respect to any transaction or series of related transactions involving aggregate value in excess of $3 million, the Company delivers an Officers' Certificate to the Trustee certifying that such transaction or series of related transactions complies with clause (a) above, and (c) with respect to any transaction or series of related transactions involving aggregate value in excess of $7 million, either (A) such transaction or series of related transactions has been Affiliate Transaction approved by a majority of the Disinterested Directors of the Company, or in the event there is only one Disinterested Director, by such Disinterested Director, or (B) the Company delivers as to the Trustee which a written opinion of has been obtained from an investment banking firm of national standing or other recognized independent expert with experience appraising Independent Financial Advisor, on the basis set forth in the preceding sentence, shall be deemed to be on terms that are fair and conditions of the type of transaction or series of related transactions for which an opinion is required stating that the transactions or series of related transactions is fair reasonable to the Company or such Subsidiary from a financial point of view; providedthe Restricted Subsidiaries, howeveras the case may be, that and, therefore, shall be permitted under this provision Section 10.14. Notwithstanding the foregoing, the restrictions set forth in this Section 10.14 shall not apply to: to (ai) compensation and employee transactions with or among, or solely for the benefit arrangements with of, the Company and/or any officer, director or employee of the CompanyRestricted Subsidiaries, including under any stock option or stock incentive plans(ii) transactions pursuant to agreements and arrangements existing on the Issue Date, (iii) transactions related to the provision of internet services in the ordinary course of business; provided that (bx) any transaction solely between or among the Company and/or any Subsidiaries, if such transaction is otherwise in compliance with the Indenture transactions are entered into on an arm's length basis and is on are fair and reasonable terms; to the Company or such Restricted Subsidiary, as the case may be, and (cy) any transaction otherwise permitted by in the terms of the section of the Indenture described in Section 1009; (d) the execution and delivery of or payments made under any tax sharing agreement between or among any good faith judgment of the Company and any or the applicable Restricted Subsidiary; (e) licensing or sublicensing , the Fair Market Value of use of any intellectual property the consideration received by the Company or any Subsidiary to any Subsidiary such Restricted Subsidiary, as the case may be, reasonably approximates the Fair Market Value of the Company; provided that the licensor shall continue to have access to such intellectual property to the extent necessary for the conduct of its respective business; services provided, (fiv) arrangements between dividends paid by the Company pursuant to and in compliance with Section 10.13 hereof, (v) customary directors' fees, indemnification and similar arrangements, consulting fees, employee salaries, bonuses, employment agreements and arrangements, compensation or employee benefit arrangements or legal fees, (vi) transactions contemplated by any Subsidiary of the Company for Permitted Affiliate Agreements as in effect on the purpose Issue Date and (vii) 106 -98- grants of providing services or employees to such Subsidiary; (g) any transaction entered into for the purpose of granting or altering customary registration rights with respect to the Capital Stock securities of the Company; . The Company shall use, and (h) any transaction shall cause each Restricted Subsidiary to use, its commercially reasonable best efforts to ensure that each person in which the Company or series a Restricted Subsidiary makes an Investment that is an ISP at the time of related transactions entered into prior the Investment continues to meet the date hereofconditions and requirements of the definition of "ISP" in all material respects until such time as a Rollup shall have occurred with respect to such ISP.
Appears in 1 contract
Sources: Indenture (Verio Inc)
Limitation on Transactions with Affiliates. The Company will shall not, and will shall not cause or permit any of its Subsidiaries Restricted Group Member to, directly or indirectly, conduct any business or enter into any transaction or series of related transactions (including, without limitation, the sale, purchase, exchange or lease of assets, property or services) with or for the benefit of any Affiliate Affiliate, any holder of 5% or more of any class of Equity Interests of the Company (other than or any Restricted Group Member or any officer, director or employee of the Company or a Wholly Owned Subsidiary) any Restricted Group Member (each, an "Affiliate Transaction"), unless such transaction or series of related transactions is entered into in good faith and in writing and (a) such transaction or series of related transactions Affiliate Transaction is on terms that are no less favorable to the Company or such SubsidiaryRestricted Group Member, as the case may be, than those that would could reasonably be reasonably expected to be available obtained at such time in a comparable transaction in arm's-length dealings with an unrelated unaffiliated third party, (b) with respect to . For any such transaction or series of related transactions involving aggregate that involves value in excess of $3 5.0 million, the Company delivers an Officers' Certificate shall deliver to the Trustee certifying an officers' certificate stating that such transaction or series of related transactions complies with clause (a) above, and (c) with respect to any transaction or series of related transactions involving aggregate value in excess of $7 million, either (A) such transaction or series of related transactions has been approved by a majority of the Disinterested Directors has determined that the transaction satisfies the above criteria and shall evidence such a determination by a Board Resolution delivered to the Trustee. For any such transaction that involves value in excess of the Company$20.0 million, or in the event there is only one Disinterested Director, by such Disinterested Director, or (B) the Company delivers to the Trustee shall also obtain a written opinion of from an investment banking firm of national standing or other recognized independent expert with experience appraising the terms and conditions of the type of transaction or series of related transactions for which an opinion is required stating that the transactions or series of related transactions is fair Independent Financial Advisor to the Company or effect that such Subsidiary transaction is fair, from a financial point of view; provided, howeverto the Company or such Restricted Group Member, that as the case may be. Notwithstanding the foregoing, the restrictions set forth in this provision covenant shall not apply to: to (ai) transactions between or among the Company and one or more Restricted Group Members or between or among Restricted Group Members; (ii) customary directors' fees, indemnification and similar arrangements, employee salaries, bonuses or employment agreements, compensation and or employee benefit arrangements and incentive arrangements with any officer, director or employee of the Company, including under Company or any stock option or stock incentive plans, Restricted Group Member entered into in the ordinary course of businessbusiness (including customary benefits thereunder); (biii) any transaction solely between transactions pursuant to agreements in effect on the Issue Date, as such agreements are in effect on the Issue Date or among the Company and/or any Subsidiaries, if such transaction is otherwise in compliance with the Indenture and is on fair and reasonable terms; (c) any transaction otherwise permitted by the terms of the section of the Indenture described in Section 1009; (d) the execution and delivery of or payments made under any tax sharing agreement between or among any of the Company and any Subsidiary; (e) licensing or sublicensing of use of any intellectual property by the Company or any Subsidiary to any Subsidiary of the Company; provided that the licensor shall continue to have access to such intellectual property to the extent necessary for the conduct of its respective business; (f) arrangements between the Company and any Subsidiary of the Company for the purpose of providing services or employees to such Subsidiary; (g) any transaction entered into for the purpose of granting or altering registration rights with respect to the Capital Stock of the Company; and (h) any transaction or series of related transactions entered into prior to the date hereof.as
Appears in 1 contract
Limitation on Transactions with Affiliates. (a) The Company will shall not, and will shall not permit any of its Subsidiaries Restricted Subsidiary to, directly or indirectly, enter into or conduct any transaction or series of related transactions (including, without limitationthe purchase, the sale, purchase, lease or exchange or lease of assets, any property or servicesthe rendering of any service) with or for the benefit of any Affiliate of the Company (other than the Company or a Wholly Owned Subsidiaryan "Affiliate Transaction") unless such transaction or series of related transactions is entered into in good faith and in writing and (a) such transaction or series of related transactions Affiliate Transaction is on terms (i) that are no not materially less favorable to the Company or such Restricted Subsidiary, as the case may be, than those that would could be reasonably expected to be available in a comparable obtained at the time of such transaction in arm's-length dealings with a Person who is not such an unrelated third partyAffiliate, (bii) with respect to any transaction or series of related transactions involving that, in the event that such Affiliate Transaction involves an aggregate value amount in excess of $3 million10,000,000, the Company delivers an Officers' Certificate to the Trustee certifying that such transaction or series of related transactions complies with clause (a1) above, are set forth in writing and (c2) with respect to any transaction or series of related transactions involving aggregate value in excess of $7 million, either (A) such transaction or series of related transactions has have been approved by a majority of the Disinterested members of the Board of Directors of the Company having no personal stake in such Affiliate Transaction and (iii) that, in the event that such Affiliate Transaction involves an amount in excess of $25,000,000, have been determined by a nationally recognized appraisal or investment banking firm to be fair, from a financial standpoint, to the Company and its Restricted Subsidiaries.
(b) The provisions of Section 4.07(a) shall not prohibit or apply to (i) any Restricted Payment permitted to be paid pursuant to Section 4.04, (ii) any issuance of securities, or other payments, awards or grants in cash, securities or otherwise pursuant to, or the funding of, employment arrangements, stock options, stock ownership and other incentive compensation plans approved by the Board of Directors of the Company, or in the event there is only one Disinterested Director, by such Disinterested Director, or (Biii) the Company delivers to the Trustee a written opinion payment of an investment banking firm of national standing or other recognized independent expert with experience appraising the terms reasonable fees to, and conditions indemnity provided on behalf of, directors, officer and employees of the type of Company and its Subsidiaries, (iv) any transaction between the Company and a Restricted Subsidiary or series of related between Restricted Subsidiaries, (v) transactions for which an opinion is required stating that the transactions or series of related transactions is fair to by the Company or such any Restricted Subsidiary from a financial point with Equistar or any Subsidiary thereof pursuant to any agreement as in effect as of viewthe Closing Date or any amendment thereto or any similar agreement entered into after the Closing Date; provided, however, that this provision any future amendment to such existing agreement or any such similar agreement shall not apply to: be permitted by this clause (av) compensation and employee benefit arrangements with to the extent that the terms of any officer, director such amendment or employee of similar agreement are materially less favorable to the Company, including under any stock option of its Restricted Subsidiaries or stock incentive plansthe Holders of the Securities in any material respect, in the ordinary course of business; (bvi) any transaction solely between or among the Company and/or any Subsidiaries, if such transaction is otherwise in compliance with the Indenture and is on fair and reasonable terms; (c) any transaction otherwise permitted by the terms of the section of the Indenture described in Section 1009; (d) the execution and delivery of or payments made under any tax sharing agreement between or among any of the Company and any Subsidiary; (e) licensing or sublicensing of use of any intellectual property by the Company or any Restricted Subsidiary to with Equistar or any Subsidiary of thereof that, taken as a whole with any other transactions by the Company; provided that the licensor shall continue to have access to such intellectual property to the extent necessary for the conduct Company or any Restricted Subsidiary with Equistar or any of its respective business; (f) arrangements between the Company and any Subsidiary of the Company for the purpose of providing services or employees to such Subsidiary; (g) any transaction entered into for the purpose of granting or altering registration rights with respect to the Capital Stock of the Company; and (h) any transaction or series of related transactions Subsidiaries that is entered into prior to or substantially concurrently with such transaction, is on terms that are not materially less favorable to the date hereofCompany or such Restricted Subsidiary than those that could be obtained at the time of such transactions in arm's-length dealings with a Person which is not an Affiliate of the Company, or (vii) any transaction effected as part of a Qualified Receivables Transaction.
Appears in 1 contract
Sources: Indenture (Millennium Chemicals Inc)
Limitation on Transactions with Affiliates. The Company will shall not, and will not permit any of its Subsidiaries Restricted Subsidiary to, directly or indirectly, enter into or suffer to exist any transaction or series of related transactions (includingwith, without limitation, the sale, purchase, exchange or lease of assets, property or services) with or for the benefit of of, any Affiliate of the Company (other than or any beneficial owner of 5% or more of any class of the Capital Stock of the Company or a Wholly Owned Subsidiary) at any time outstanding ("Interested Persons"), unless such transaction or series of related transactions is entered into in good faith and in writing and (a) such transaction or series of related transactions is on terms that are no less favorable to the Company or such Restricted Subsidiary, as the case may be, than those that would be reasonably expected to be available could have been obtained in a comparable an arm's length transaction in arm's-length dealings with an unrelated third party, parties who are not Interested Persons and (b) the Company delivers to the Trustee (i) with respect to any transaction or series of related transactions entered into after the Closing Date involving aggregate value payments in excess of $3 million, a resolution of the Board of Directors of the Company delivers set forth in an Officersofficers' Certificate to the Trustee certificate certifying that such transaction or series of related transactions complies with clause (a) above, above and that such transaction or transactions have been approved by the Board of Directors (including a majority of the Disinterested Directors) of the Company and (cii) with respect to any a transaction or series of related transactions involving aggregate value in excess of payments equal to or greater than $7 5 million, either (A) a written opinion as to the fairness to the Company or such Restricted Subsidiary of such transaction or series of related transactions has been approved from a financial point of view issued by a majority an accounting, appraisal or investment banking firm, in each case of national standing. The foregoing covenant will not restrict:
(A) transactions among the Disinterested Directors of the Company, or in the event there is only one Disinterested Director, by such Disinterested Director, or Company and/or its Restricted Subsidiaries;
(B) the Company delivers from paying reasonable and customary regular compensation and fees to the Trustee a written opinion directors of an investment banking firm of national standing or other recognized independent expert with experience appraising the terms and conditions of the type of transaction or series of related transactions for which an opinion is required stating that the transactions or series of related transactions is fair to the Company or such any Restricted Subsidiary from a financial point who are not employees of viewthe Company or any Restricted Subsidiary;
(C) transactions permitted by the provisions of Section 1011; provided, however, that this provision shall not apply to: and
(aD) compensation and employee benefit arrangements with any officer, director or employee the performance of the Company's obligations under the Technical Assistance Agreement, including under any stock option or stock incentive plansas in effect at the Closing Date, in the ordinary course of businessan annual amount not to exceed $1 million; (b) provided that any transaction solely between amendments or among the Company and/or any Subsidiaries, if such transaction is otherwise in compliance with the Indenture and is on fair and reasonable terms; (c) any transaction otherwise permitted by modifications to the terms of the section of the Indenture described in Section 1009; (d) the execution and delivery of or payments made under any tax sharing agreement between or among any of Technical Assistance Agreement are no less favorable to the Company and any Subsidiary; (e) licensing or sublicensing of use of any intellectual property by the Company or any Subsidiary to any Subsidiary of the Company; provided than those that the licensor shall continue to could have access to such intellectual property to the extent necessary for the conduct of its respective business; (f) arrangements between the Company and any Subsidiary of the Company for the purpose of providing services or employees to such Subsidiary; (g) any been obtained in an arm's length transaction entered into for the purpose of granting or altering registration rights with respect to the Capital Stock of the Company; and (h) any transaction or series of related transactions entered into prior to the date hereofthird parties who are not Interested Persons.
Appears in 1 contract
Sources: Indenture (Ameristeel Corp)
Limitation on Transactions with Affiliates. (a) The Company will not, and will not permit any of its the Restricted Subsidiaries to, directly or indirectly, enter into or permit to exist any transaction or series of related transactions (including, without limitation, the purchase, sale, purchase, lease or exchange or lease of assets, any property or servicesthe rendering of any service) with or for the benefit of any an Affiliate of the Company or any Restricted Subsidiary (other than transactions between the Company and a Wholly-Owned Restricted Subsidiary or a Wholly between Wholly-Owned SubsidiaryRestricted Subsidiaries) unless such transaction or series of related transactions is entered into in good faith and in writing (an "Affiliate Transaction"), other than (x) Affiliate Transactions permitted under (b) below and (ay) such transaction or series of related transactions is Affiliate Transactions (including lease transactions) on terms that are no less favorable to the Company or the relevant Restricted Subsidiary in the aggregate than those that might reasonably have been obtained in a comparable transaction by the Company or such Restricted Subsidiary on an arm's-length basis (as determined in good faith by the Board of Directors of the Company, as evidenced by a Board Resolution) from a person that is not an Affiliate; PROVIDED that except as otherwise provided under (b) below, neither the Company nor any of the Restricted Subsidiaries shall enter into an Affiliate Transaction or series of related Affiliate Transactions involving or having a value of more than $5.0 million unless the Company or such Restricted Subsidiary, as the case may be, has received an opinion from an Independent Financial Advisor, with a copy thereof to the Trustee, to the effect that the financial terms of such Affiliate Transaction are fair and reasonable to the Company or such Restricted Subsidiary, as the case may be, and such terms are no less favorable to the Company or such Restricted Subsidiary, as the case may be, than those that would could be reasonably expected to be available obtained in a comparable transaction in on an arm's-length dealings basis with a person that is not an unrelated third party, Affiliate.
(b) with respect to any transaction or series of related transactions involving aggregate value in excess of $3 million, the Company delivers an Officers' Certificate to the Trustee certifying that such transaction or series of related transactions complies with clause (a) above, and (c) with respect to any transaction or series of related transactions involving aggregate value in excess of $7 million, either (A) such transaction or series of related transactions has been approved by a majority of the Disinterested Directors of the Company, or in the event there is only one Disinterested Director, by such Disinterested Director, or (B) the Company delivers to the Trustee a written opinion of an investment banking firm of national standing or other recognized independent expert with experience appraising the terms and conditions of the type of transaction or series of related transactions for which an opinion is required stating that the transactions or series of related transactions is fair to the Company or such Subsidiary from a financial point of view; provided, however, that this provision The foregoing provisions shall not apply to: to (a) compensation and employee benefit arrangements with any officer, director or employee of the Company, including under any stock option or stock incentive plans, in the ordinary course of business; (bi) any transaction solely between or among the Company and/or any Subsidiaries, if such transaction Restricted Payment that is otherwise made in compliance with the Indenture and is on fair and reasonable terms; Section 4.03, (cii) any transaction otherwise permitted by the terms of the section of the Indenture described in Section 1009; (d) the execution and delivery of or payments made under any tax sharing agreement between or among any of the Company and any Subsidiary; (e) licensing or sublicensing of use of any intellectual property by the Company or any Subsidiary to any Subsidiary of the Company; provided that Restricted Subsidiaries to Renco or DRA of the licensor shall continue amounts set forth in clauses (4), (5), (6) and (7) of the second paragraph of Section 4.03 and (iii) reasonable and customary regular fees to have access to such intellectual property to the extent necessary for the conduct directors of its respective business; (f) arrangements between the Company and any Subsidiary the Restricted Subsidiaries who are not employees of the Company for and the purpose of providing services or employees to such Subsidiary; (g) any transaction entered into for the purpose of granting or altering registration rights with respect to the Capital Stock of the Company; and (h) any transaction or series of related transactions entered into prior to the date hereofRestricted Subsidiaries.
Appears in 1 contract
Sources: Indenture (Doe Run Peru Sr Ltda)
Limitation on Transactions with Affiliates. The Unless the Notes are rated the Required Rating (during which such time this Section 4.11 will not be in effect), the Company will not, and will not permit any of its Subsidiaries Restricted Subsidiary to, directly or indirectly, conduct any business or enter into any transaction or series of related transactions (includingincluding the purchase, without limitation, the sale, purchase, lease or exchange or lease of assets, any property or services) with or for the benefit rendering of any service), pursuant to which the Company or any Restricted Subsidiary shall receive or render value exceeding $1,000,000, with any Affiliate or Related Person of the Company or of the Existing Equity Holders (other than the Company or a Wholly Owned Subsidiarywholly-owned Restricted Subsidiary of the Company), unless (i) unless the terms of such business, transaction or series of related transactions is entered into in good faith and are (A) set forth in writing and (aB) fair and reasonable to the Company or such transaction or series of related transactions is on terms that are Restricted Subsidiary, and no less favorable to the Company or such Restricted Subsidiary, as the case may be, than those as terms that would be reasonably expected to be available in obtainable at the time for a comparable transaction in arm's-length dealings or series of related transactions with an unrelated third partyperson and (ii) the disinterested directors of the Board of Directors of the Company have, by resolution, determined in good faith that such business or transaction or series of related transactions meets the criteria set forth in (bi) (B) above, which determination shall be conclusive and (iii) with respect to any transaction or series of related transactions involving aggregate otherwise permitted under this paragraph pursuant to which the Company or any Restricted Subsidiary shall receive or render value in excess exceeding $15,000,000, such transaction or series of $3 millionrelated transactions shall not be permitted unless, prior to consummation thereof, the Company delivers shall have received an Officers' Certificate to opinion, from an independent nationally recognized firm experienced in the Trustee certifying appraisal or similar review of similar types of transactions, that such transaction or series of related transactions complies with clause (a) aboveis on terms which are fair, and (c) with respect to any transaction or series of related transactions involving aggregate value in excess of $7 million, either (A) such transaction or series of related transactions has been approved by a majority of the Disinterested Directors of the Company, or in the event there is only one Disinterested Director, by such Disinterested Director, or (B) the Company delivers to the Trustee a written opinion of an investment banking firm of national standing or other recognized independent expert with experience appraising the terms and conditions of the type of transaction or series of related transactions for which an opinion is required stating that the transactions or series of related transactions is fair to the Company or such Subsidiary from a financial point of view; provided, however, that this provision shall not apply to: (a) compensation and employee benefit arrangements with any officer, director or employee of the Company, including under any stock option or stock incentive plans, in the ordinary course of business; (b) any transaction solely between or among to the Company and/or any Subsidiariesor such Restricted Subsidiary. Notwithstanding the foregoing, if such transaction is otherwise in compliance with the Indenture and is on fair and reasonable terms; (c) any transaction otherwise permitted by the terms of the section of the Indenture described in Section 1009; (d) the execution and delivery of or payments made under any tax sharing agreement between or among any of the Company and any Subsidiary; (e) licensing or sublicensing of use of any intellectual property by the Company or any of its Restricted Subsidiaries shall be entitled to provide management services to an Unrestricted Subsidiary whose sole purpose is to any Subsidiary of the Company; develop, construct and operate a new gaming facility, provided that the licensor shall continue to have access to Company or such intellectual property to Restricted Subsidiary, as the extent necessary case may be, is reimbursed by the Unrestricted Subsidiary for the conduct of its respective business; all costs and expenses (fincluding without limitation payroll) arrangements between the Company and any Subsidiary of the Company for the purpose of it incurs in providing services or employees to such Subsidiary; (g) any transaction entered into for the purpose of granting or altering registration rights with respect to the Capital Stock of the Company; and (h) any transaction or series of related transactions entered into prior to the date hereofservices.
Appears in 1 contract
Sources: Indenture (Station Casinos Inc)
Limitation on Transactions with Affiliates. (a) The Company will not, and will not permit any of its the Restricted Subsidiaries to, directly or indirectly, enter into or permit to exist any transaction or series of related transactions (including, without limitation, the purchase, sale, purchase, lease or exchange or lease of assets, any property or servicesthe rendering of any service) with with, or for the benefit of, any of any its Affiliates (each an "Affiliate of the Company (Transaction"), other than the Company or a Wholly Owned Subsidiary(x) unless such transaction or series of related transactions is entered into in good faith and in writing Affiliate Transactions permitted under paragraph (b) below and (ay) such transaction or series of related transactions is Affiliate Transactions on terms that are no less favorable to than those that might reasonably have been obtained in a comparable transaction at such time on an arm's-length basis from a Person that is not an Affiliate of the Company or such Restricted Subsidiary. All Affiliate Transactions (and each series of related Affiliate Transactions which are similar or part of a common plan) involving aggregate payments or other property with a fair market value in excess of $500,000 shall be approved by the Board of Directors of the Company or such Restricted Subsidiary, as the case may be, than those that would be reasonably expected such approval to be available in evidenced by a comparable Board Resolution stating that such Board of Directors has determined that such transaction in arm's-length dealings complies with the foregoing provisions. If the Company or any Restricted Subsidiary enters into an unrelated third party, Affiliate Transaction (b) with respect to any transaction or a series of related transactions involving Affiliate Transactions related to a common plan) that involves an aggregate fair market value in excess of more than $3 4 million, the Company delivers an Officers' Certificate or such Restricted Subsidiary, as the case may be, shall, prior to the Trustee certifying consummation thereof, obtain an opinion stating that such transaction or series of related transactions complies with clause (a) above, and (c) with respect to any transaction or series of related transactions involving aggregate value in excess of $7 million, either (A) such transaction or series of related transactions has been approved by a majority of the Disinterested Directors of the Company, or in the event there is only one Disinterested Director, by such Disinterested Director, or (B) the Company delivers to the Trustee a written opinion of an investment banking firm of national standing or other recognized independent expert with experience appraising the terms and conditions of the type of transaction or series of related transactions for which an opinion is required stating that the transactions or series of related transactions is are fair to the Company or such Subsidiary the relevant Restricted Subsidiary, as the case may be, from a financial point of view; provided, however, that this provision from an Independent Financial Advisor and file the same with the Trustee.
(b) The restrictions set forth in clause (a) shall not apply to: to (ai) reasonable fees and compensation paid to and employee benefit arrangements with any officerindemnity provided on behalf of, director officers, directors, employees or employee consultants of the Company or any Restricted Subsidiary as determined in good faith by the Company's Board of Directors; (ii) transactions exclusively between or among the Company and any of the Restricted Subsidiaries or exclusively between or among such Restricted Subsidiaries, including under any stock option or stock incentive plans, provided such transactions are not otherwise prohibited by this Indenture; (iii) Restricted Payments permitted by this Indenture; (iv) advances and loans to employees and officers in the ordinary course of business; and (bv) any transaction solely between or among the Company payments to HMK Enterprises, Inc. and/or any Subsidiaries, if such transaction is otherwise in compliance with the Indenture and is on fair and reasonable terms; (c) any transaction otherwise permitted by the terms of the section of the Indenture described in Section 1009; (d) the execution and delivery of or payments made under any tax sharing agreement between or among any of the Company and any Subsidiary; (e) licensing or sublicensing of use of any intellectual property by the Company or any Subsidiary to any Subsidiary of the Company; provided that the licensor shall continue to have access to such intellectual property its Affiliates required pursuant to the extent necessary for Management Agreement or the conduct of its respective business; (f) arrangements between the Company and any Subsidiary of the Company for the purpose of providing services or employees to such Subsidiary; (g) any transaction entered into for the purpose of granting or altering registration rights with respect to the Capital Stock of the Company; and (h) any transaction or series of related transactions entered into prior to the date hereofIntercompany Agreements.
Appears in 1 contract
Sources: Indenture (Sheffield Steel Corp)
Limitation on Transactions with Affiliates. (a) The Company will not, and will not permit any of its Subsidiaries to, directly or indirectly, enter into or suffer to exist any transaction or series of related transactions (including, without limitation, the sale, purchase, exchange or lease of assets, property or services) with or for the benefit of any Affiliate of the Company (other than including entities in which the Company or any Subsidiary thereof owns a Wholly Owned Subsidiaryminority interest) unless (each such transaction transaction, an "Affiliate Transaction") or series extend, renew, waive or otherwise modify the terms of related transactions is any Affiliate Transaction entered into in good faith and in writing and prior to the Issue Date unless (ai) such transaction Affiliate Transaction is solely between or series among the Company and its Wholly-Owned Subsidiaries; (ii) such Affiliate Transaction is solely between or among Wholly-Owned Subsidiaries of related transactions is on the Company; or (iii) the terms that of such Affiliate Transaction are no less favorable fair and reasonable to the Company or such Subsidiary, as the case may be, than those that would and the terms of such Affiliate Transaction are at least as favorable as the terms which could be reasonably expected to be available obtained by the Company or such Subsidiary, as the case may be, in a comparable transaction in made on an arm's-length dealings with basis between unaffiliated parties. In any Affiliate Transaction involving an unrelated third party, (b) with respect to any transaction amount or series of related transactions involving aggregate having a value in excess of $3 million1.0 million in any one year which is not permitted under clause (i) or (ii) above, the Company delivers an Officers' Certificate to or such Subsidiary, as the Trustee case may be, must obtain a resolution of its Board of Directors certifying that such transaction or series of related transactions Affiliate Transaction complies with clause (aiii) above, and (c) . In transactions with respect to any transaction or series of related transactions involving aggregate a value in excess of $7 million, either 5.0 million which are not permitted under clause (Ai) such transaction or series of related transactions has been approved by a majority of the Disinterested Directors of the Company, or in the event there is only one Disinterested Director, by such Disinterested Director, or (Bii) the Company delivers to the Trustee a written opinion of an investment banking firm of national standing or other recognized independent expert with experience appraising the terms and conditions of the type of transaction or series of related transactions for which an opinion is required stating that the transactions or series of related transactions is fair to above, the Company or such Subsidiary Subsidiary, as the case may be, must obtain a 60 55 written opinion as to the fairness of such a transaction, from a financial point of view; provided, however, that this provision from an Independent Financial Advisor.
(b) Section 4.08(a) shall not apply to: to (ai) compensation and employee benefit arrangements any transaction with any current or former officer, director or employee of the CompanyCompany (in his or her capacity as such) (or the estate, including under heirs or legatees of any stock option or stock incentive plans, such individual) entered into in the ordinary course of business; , including entering into employment agreements, indemnification agreements and compensation and employee benefit plans, (bii) any transaction solely between or among Restricted Payments to the Company and/or any Subsidiaries, if extent not prohibited by Section 4.07 and other transactions specifically excluded from the definition of "Restricted Payments" by reason of exceptions set forth in such transaction is otherwise in compliance with the Indenture definition and is on fair and reasonable terms; (ciii) any transaction otherwise permitted by the terms issuances of the section of the Indenture described in Section 1009; (d) the execution and delivery of or payments made under any tax sharing agreement between or among any of the Company and any Subsidiary; (e) licensing or sublicensing of use of any intellectual property by the Company or any Subsidiary to any Subsidiary Equity Interests of the Company; provided that the licensor shall continue to have access to such intellectual property to the extent necessary for the conduct of its respective business; (f) arrangements between the Company and any Subsidiary of the Company for the purpose of providing services or employees to such Subsidiary; (g) any transaction entered into for the purpose of granting or altering registration rights with respect to the Capital Stock of the Company; and (h) any transaction or series of related transactions entered into prior to the date hereof.
Appears in 1 contract
Sources: Indenture (Healthcor Holdings Inc)
Limitation on Transactions with Affiliates. The Company will not, and will not permit any of its Subsidiaries to, directly or indirectly, enter into or suffer to exist any transaction or series of related transactions (including, without limitation, the sale, purchase, exchange or lease of assets, property or services) with or for the benefit of any Affiliate of the Company (other than including any Affiliate in which the Company or any Subsidiary thereof owns a Wholly Owned Subsidiaryminority interest) unless or holder of 15% or more of the Company's Equity Interests (each such transaction transaction, an "Affiliate Transaction") or series extend, renew, waive or otherwise modify the terms of related transactions is any Affiliate Transaction entered into prior to the Issue Date unless (i) such Affiliate Transaction is solely between or among the Company and its Wholly-Owned Subsidiaries; (ii) such Affiliate Transaction is solely between or among Wholly-Owned Subsidiaries of the Company; (iii) such Affiliate Transaction is for reasonable fees and compensation paid to, and indemnity provided on behalf of, officers, directors, employees or consultants of the Company or any Subsidiary thereof as reasonably determined in good faith by the Board of Directors (when required as described below) or senior management of the Company or of such Subsidiary having no interest in such Affiliate Transaction; or (iv) the terms of such Affiliate Transaction are fair and in writing and (a) such transaction or series of related transactions is on terms that are no less favorable reasonable to the Company or such Subsidiary, as the case may be, than those that would and the terms of such Affiliate Transaction are at least as favorable as the terms which could be reasonably expected to be available obtained by the Company or such Subsidiary, as the case may be, in a comparable transaction in made on an arm's-length dealings with basis between unaffiliated parties. In any Affiliate Transaction involving an unrelated third party, (b) with respect to any transaction amount or series of related transactions involving aggregate having a value in excess of $3 million5 million in any one year which is not permitted under clause (i) or (ii) above, the Company delivers or such Subsidiary, as the case may be, must obtain a resolution of an Officers' Certificate to the Trustee independent committee of its Board of Directors certifying that such transaction or series of related transactions Affiliate Transaction complies with clause (aiii) or (iv) above, and as the case may be. The foregoing provisions will not apply to (ci) with respect the payment of reasonable annual compensation to any transaction directors or series of related transactions involving aggregate value in excess of $7 million, either (A) such transaction or series of related transactions has been approved by a majority of the Disinterested Directors executive officers of the Company, or (ii) the continued performance of transactions with Affiliates disclosed in the event there is only one Disinterested DirectorPlan of Reorganization, by such Disinterested Director, or on the same terms as disclosed in the Plan of Reorganization and (Biii) the Company delivers transactions with Affiliates listed on Schedule 4.9 to the Trustee a written opinion of an investment banking firm of national standing or other recognized independent expert with experience appraising the terms and conditions of the type of transaction or series of related transactions for which an opinion is required stating that the transactions or series of related transactions is fair to the Company or such Subsidiary from a financial point of view; provided, however, that this provision shall not apply to: (a) compensation and employee benefit arrangements with any officer, director or employee of the Company, including under any stock option or stock incentive plans, in the ordinary course of business; (b) any transaction solely between or among the Company and/or any Subsidiaries, if such transaction is otherwise in compliance with the Indenture and is on fair and reasonable terms; (c) any transaction otherwise permitted by the terms of the section of the Indenture described in Section 1009; (d) the execution and delivery of or payments made under any tax sharing agreement between or among any of the Company and any Subsidiary; (e) licensing or sublicensing of use of any intellectual property by the Company or any Subsidiary to any Subsidiary of the Company; provided that the licensor shall continue to have access to such intellectual property to the extent necessary for the conduct of its respective business; (f) arrangements between the Company and any Subsidiary of the Company for the purpose of providing services or employees to such Subsidiary; (g) any transaction entered into for the purpose of granting or altering registration rights with respect to the Capital Stock of the Company; and (h) any transaction or series of related transactions entered into prior to the date hereofAgreement.
Appears in 1 contract
Limitation on Transactions with Affiliates. (a) The Company will shall not, and will shall not cause or permit any of its Restricted Subsidiaries to, directly or indirectly, enter into or suffer to exist any transaction or series of related transactions (including, without limitation, the sale, purchase, exchange or lease of assets, property or services) with any Affiliate (each an "Affiliate Transaction") or for extend, renew, waive or otherwise modify the benefit terms of any Affiliate of Transaction entered into prior to August 14, 2001, unless (i) such Affiliate Transaction is between or among the Company and its Restricted Subsidiaries or between or among Restricted Subsidiaries; or (other than ii) the Company or a Wholly Owned Subsidiary) unless terms of such transaction or series of related transactions is entered into in good faith and in writing and (a) such transaction or series of related transactions is on terms that Affiliate Transaction are no less favorable to the Company or such Restricted Subsidiary, as the case may be, than those that would the terms which could reasonably be reasonably expected to be available obtained by the Company or such Restricted Subsidiary, as the case may be, at such time in a comparable transaction in made on an arm's-length dealings with an unrelated third party, basis between unaffiliated parties. In any Affiliate Transaction (b) with respect to or any transaction or series of related transactions Affiliate Transactions) involving aggregate value an amount or having a Fair Market Value in excess of $3 million5,000,000 which is not permitted under clause (a)(i) of this Section 4.09, the Company delivers shall obtain a resolution of the disinterested members of the Board of Directors of the Company certifying that they have approved such Affiliate Transaction and determined that such Affiliate Transaction complies with clause (a)(ii) of this Section 4.09. In addition, in any Affiliate Transaction (or any series of related Affiliate Transactions) involving an Officers' Certificate to amount or having a Fair Market Value in excess of $50,000,000 which is not permitted under clause (a)(i) of this Section 4.09, the Trustee certifying Company must obtain a written opinion from an Independent Financial Advisor that such transaction or series of related transactions complies with clause (a) above, and (c) with respect to any transaction or series of related transactions involving aggregate value in excess of $7 million, either (A) such transaction or series of related transactions has been approved by a majority of the Disinterested Directors of the Company, or in the event there is only one Disinterested Director, by such Disinterested Director, or (B) the Company delivers to the Trustee a written opinion of an investment banking firm of national standing or other recognized independent expert with experience appraising the terms and conditions of the type of transaction or series of related transactions for which an opinion is required stating that the transactions or series of related transactions is are fair to the Company or such Subsidiary Restricted Subsidiary, as the case may be, from a financial point of view; provided, however, that this provision shall .
(b) The provisions of Section 4.09(a) will not apply to: to (ai) compensation any Restricted Payment made in compliance with Section 4.07 hereof, (ii) any payment of customary and employee benefit arrangements with any officer, director or employee reasonable fees to directors of the Company, including under (iii) any stock option employment agreement or stock incentive planscompensation arrangement in effect on August 14, 2001, or entered into thereafter by the Company or any of its Restricted Subsidiaries in the ordinary course of business; (b) any transaction solely between or among the Company and/or any Subsidiaries, if such transaction is otherwise in compliance business and consistent with the Indenture and is on fair and reasonable terms; (c) any transaction otherwise permitted by the terms of the section of the Indenture described in Section 1009; (d) the execution and delivery of or payments made under any tax sharing agreement between or among any past practice of the Company and any Subsidiary; its Restricted Subsidiaries, (eiv) licensing or sublicensing transactions in the ordinary course of use of any intellectual property by the Company or any Subsidiary business pursuant to any Subsidiary pension, share or partnership unit option, profit sharing, partnership unit or share appreciation rights or other employee benefit plan or agreement (including insurance, indemnification and reimbursement plans and arrangements for directors, officers and employees), (v) loans to employees not to exceed $10,000,000 in aggregate amount at any one time outstanding, or (vi) issuances of Capital Stock (other than Disqualified Capital Stock) of the Company; provided that the licensor shall continue to have access to such intellectual property to the extent necessary for the conduct of its respective business; (f) arrangements between the Company and any Subsidiary of the Company for the purpose of providing services or employees to such Subsidiary; (g) any transaction entered into for the purpose of granting or altering registration rights with respect to the Capital Stock of the Company; and (h) any transaction or series of related transactions entered into prior to the date hereof.
Appears in 1 contract
Sources: Indenture (Norske Skog Canada LTD)
Limitation on Transactions with Affiliates. The Company will Issuer shall not, and will shall not permit any of its Subsidiaries Subsidiary to, directly or indirectly, enter into or suffer to exist any transaction or series of related transactions (including, without limitation, the sale, purchase, exchange or lease of assets, property or services) with with, or for the benefit of of, any Affiliate of the Company Issuer (other than the Company Issuer or a Wholly Owned Subsidiarywholly-owned Subsidiary of the Issuer) unless such transaction or series of related transactions is entered into in good faith and in writing and (a) such transaction or series of related transactions is on terms that are no less favorable to the Company Issuer or such Subsidiary, as the case may be, than those that would be reasonably expected to be available could have been obtained in a comparable transaction in an arm's-length dealings transaction with an unrelated third partyparties who are not Affiliates, (b) with respect to any transaction or series of related transactions involving aggregate value in excess of consideration equal to or greater than $3 5.0 million, the Company delivers Issuer shall have delivered an Officers' Officer's Certificate to the Trustee certifying that such transaction or series of related transactions complies with clause (a) above, above and (c) with respect to any transaction or series of related transactions involving aggregate value in excess of $7 million, either (A) such transaction or series of related transactions has been approved by a majority of the Disinterested Directors of the CompanyBoard of Directors of the General Partner, or in the event there is only one Disinterested Director, by such Disinterested Director, or (B) the Company delivers to the Trustee a written opinion of an investment banking firm of national standing or other recognized independent expert with experience appraising the terms and conditions no members of the type Board of Directors of the General Partner are Disinterested Directors with respect to any transaction or series of related transactions for which an included in this clause (b), the Issuer has obtained a written opinion is required stating that from a nationally recognized investment banking firm to the transactions effect such transaction or series of related transactions is fair to the Company Issuer or such Subsidiary Subsidiary, as the case may be, from a financial point of viewview and (c) with respect to any transaction or series of related transactions including aggregate consideration in excess of $15.0 million, the Issuer shall obtain an opinion from a nationally recognized investment banking firm as described above; provided, however, that this provision shall not apply to: restrict (a1) the Issuer from paying reasonable and customary regular compensation and employee benefit arrangements with any officer, director or employee fees to directors of the Company, including under any stock option or stock incentive plans, in the ordinary course of business; (b) any transaction solely between or among the Company and/or any Subsidiaries, if such transaction is otherwise in compliance with the Indenture and is on fair and reasonable terms; (c) any transaction otherwise permitted by the terms General Partner who are not employees of the section of the Indenture described in Section 1009; General Partner or (d2) the execution payment of compensation (including stock options and delivery of or payments made under any tax sharing agreement between or among any of the Company other incentive compensation) to officers and any Subsidiary; (e) licensing or sublicensing of use of any intellectual property by the Company or any Subsidiary to any Subsidiary of the Company; provided that the licensor shall continue to have access to such intellectual property to the extent necessary for the conduct of its respective business; (f) arrangements between the Company and any Subsidiary of the Company for the purpose of providing services or employees to such Subsidiary; (g) any transaction entered into for the purpose of granting or altering registration rights with respect to the Capital Stock of the Company; and (h) any transaction or series of related transactions entered into prior to the date hereofother employees.
Appears in 1 contract
Sources: Fifth Supplemental Indenture (Chelsea Gca Realty Partnership Lp)
Limitation on Transactions with Affiliates. (a) The Company will shall not, and will shall not permit any of its Restricted Subsidiaries to, directly or indirectly, enter into or permit to exist any transaction or series of related transactions (including, without limitation, the purchase, sale, purchase, lease or exchange or lease of assets, any property or servicesthe rendering of any service) with with, or for the benefit of, any of any its Affiliates (each an "Affiliate of the Company (Transaction"), other than the Company or a Wholly Owned Subsidiary(x) unless such transaction or series of related transactions is entered into in good faith and in writing Affiliate Transactions permitted under paragraph (b) below and (ay) such transaction or series of related transactions is Affiliate Transactions on terms that are no less favorable to than those that might reasonably have been obtained in a comparable transaction at such time on an arm's-length basis from a Person that is not an Affiliate of the Company or such Restricted Subsidiary. All Affiliate Transactions (and each series of related Affiliate Transactions which are similar or part of a common plan) involving aggregate payments or other property with a fair market value in excess of $500,000 shall be approved by a majority of the disinterested members of the Board of Directors of the Company or such Restricted Subsidiary, as the case may be, than those that would be reasonably expected such approval to be available in evidenced by a comparable Board Resolution stating that such Board of Directors has determined that such transaction in arm's-length dealings complies with the foregoing provisions. If the Company or any Restricted Subsidiary of the Company enters into an unrelated third party, Affiliate Transaction (b) with respect to any transaction or a series of related transactions involving Affiliate Transactions related to a common plan) that involves an aggregate fair market value in excess of more than $3 million2,500,000, the Company delivers an Officers' Certificate or such Restricted Subsidiary, as the case may be, shall, prior to the Trustee certifying that consummation thereof, obtain a favorable opinion as to the fairness of such transaction or series of related transactions complies with clause (a) above, and (c) with respect to any transaction or series of related transactions involving aggregate value in excess of $7 million, either (A) such transaction or series of related transactions has been approved by a majority of the Disinterested Directors of the Company, or in the event there is only one Disinterested Director, by such Disinterested Director, or (B) the Company delivers to the Trustee a written opinion of an investment banking firm of national standing or other recognized independent expert with experience appraising the terms and conditions of the type of transaction or series of related transactions for which an opinion is required stating that the transactions or series of related transactions is fair to the Company or such Subsidiary the relevant Restricted Subsidiary, as the case may be, from a financial point of view; provided, however, that this provision from an Independent Financial Advisor and file the same with the Trustee.
(b) The restrictions set forth in clause (a) shall not apply to: to (ai) reasonable fees and compensation paid to and employee benefit arrangements with any officerindemnity provided on behalf of, director officers, directors, employees or employee consultants of the Company or any Restricted Subsidiary as determined in good faith by the Company, including under any stock option 's Board of Directors or stock incentive plans, in the ordinary course of businesssenior management; (bii) any transaction solely transactions exclusively between or among the Company and/or and any Subsidiaries, if such transaction is otherwise in compliance with the Indenture and is on fair and reasonable terms; (c) any transaction otherwise permitted by the terms of the section of the Indenture described in Section 1009; (d) the execution and delivery of its Wholly Owned Restricted Subsidiaries or payments made under any tax sharing agreement exclusively between or among any of the Company and any Subsidiary; (e) licensing or sublicensing of use of any intellectual property such Wholly Owned Restricted Subsidiaries, provided such transactions are not otherwise prohibited by the Company or any Subsidiary to any Subsidiary of the Company; provided that the licensor shall continue to have access to such intellectual property to the extent necessary for the conduct of its respective business; (f) arrangements between the Company and any Subsidiary of the Company for the purpose of providing services or employees to such Subsidiary; (g) any transaction entered into for the purpose of granting or altering registration rights with respect to the Capital Stock of the Companythis Indenture; and (hiii) any transaction or series Restricted Payments permitted by Section 4.10 of related transactions entered into prior to the date hereofthis Indenture.
Appears in 1 contract
Sources: Indenture (Coinmach Laundry Corp)
Limitation on Transactions with Affiliates. (A) The Company will not, and will not permit any of its Restricted Subsidiaries to, directly or indirectly, enter into or suffer to exist any transaction or series of related transactions (including, without limitation, the sale, purchase, exchange or lease of assets, property or services) with any Affiliate (each an "AFFILIATE TRANSACTION") or for extend, renew, waive or otherwise modify the benefit terms of any Affiliate of Transaction entered into prior to the Issue Date unless
(1) such Affiliate Transaction is between or among the Company and its Restricted Subsidiaries; or
(other than 2) the Company or a Wholly Owned Subsidiary) unless terms of such transaction or series of related transactions is entered into in good faith Affiliate Transaction are fair and in writing and (a) such transaction or series of related transactions is on terms that are no less favorable reasonable to the Company or such Restricted Subsidiary, as the case may be, than those that would and the terms of such Affiliate Transaction are at least as favorable as the terms which could be reasonably expected to be available obtained by the Company or such Restricted Subsidiary, as the case may be, in a comparable transaction in made on an arm's-length dealings with an unrelated third party, basis between unaffiliated parties. In any Affiliate Transaction (b) with respect to or any transaction or series of related transactions Affiliate Transactions which are similar or part of a common plan) involving aggregate an amount or having a fair market value in excess of $3 million5,000,000 which is not permitted under clause (1) above, the Company delivers an Officers' Certificate to must obtain a resolution of the Trustee Board of Directors of the Company certifying that such transaction or series of related transactions Affiliate Transaction complies with clause (a2) above, and . In any Affiliate Transaction (c) with respect to or any transaction or series of related transactions Affiliate Transactions which are similar or part of a common plan) involving aggregate an amount or having a fair market value in excess of $7 million10,000,000 which is not permitted under clause (1) above, either (A) the Company must obtain a favorable written opinion as to the fairness of such transaction or series of related transactions has been approved by a majority of transactions, as the Disinterested Directors of the Companycase may be, or in the event there is only one Disinterested Director, by such Disinterested Director, or from an Independent Financial Advisor.
(B) The foregoing provisions will not apply to
(1) any Restricted Payment that is not prohibited by the Company delivers to the Trustee a written opinion provisions described under Section 4.11 of an investment banking firm this Indenture or any Permitted Investment,
(2) reasonable fees and compensation paid to, and indemnity provided on behalf of, officers, directors or employees of national standing or other recognized independent expert with experience appraising the terms and conditions of the type of transaction or series of related transactions for which an opinion is required stating that the transactions or series of related transactions is fair to the Company or such any Restricted Subsidiary from a financial point of view; provided, however, that this provision shall not apply to: (a) compensation and employee benefit arrangements with any officer, director or employee of the Company as determined in good faith by the Company's Board of Directors or senior management,
(3) any agreement as in effect as of the Issue Date (including, without limitation, any agreement entered into on the Issue Date in connection with the Transactions) or any amendment thereto or any transaction contemplated thereby (including under pursuant to any stock option amendment thereto) in any replacement agreement thereto so long as any such amendment or stock incentive plansreplacement agreement is not more disadvantageous to the Holders in any material respect than the original agreement as in effect on the Issue Date,
(4) transactions with a Receivables Subsidiary in connection with Permitted Receivables Financing,
(5) any transaction between the Company and any of its Affiliates involving ordinary course of business investment banking, commercial banking, financial advisory services and related activities,
(6) the payment of management fees to any Affiliate of the Company not to exceed in the aggregate to all Affiliates, in any calendar year, $1,000,000,
(7) customer financing and financing services transactions between the Company or any of its Restricted Subsidiaries on the one hand and MCII Financial Services on the other hand occurring in the ordinary course of business; (b) any transaction solely between or among the Company and/or any Subsidiaries, if such transaction is otherwise in compliance with the Indenture and is on fair and reasonable terms; (c) any transaction otherwise permitted by PROVIDED that the terms of each such transaction are at least as favorable as the section terms which could be obtained by the Company or such Restricted Subsidiary in a comparable transaction made on an arm's-length basis between unaffiliated parties,
(8) issuances of the Indenture described in Section 1009; (d) the execution and delivery of or payments made under any tax sharing agreement between or among any Capital Stock of the Company and any Subsidiary; (eother than Disqualified Capital Stock), to the extent otherwise permitted under this Indenture,
(9) licensing the existence of, or sublicensing of use of any intellectual property the performance by the Company or any Subsidiary of its Restricted Subsidiaries of its obligations under the terms of, any stockholders agreement (including any registration rights agreement or purchase agreement related thereto) to which it is a party as of the Issue Date and any similar agreements which it may enter into thereafter, in each case subject to compliance with the other provisions of this Indenture; PROVIDED, HOWEVER, that the existence, or the performance by the Company or any of its Restricted Subsidiaries of obligations under any future amendment to any Subsidiary of such existing agreement or under any similar agreement entered into after the Company; provided that the licensor Issue Date shall continue to have access to such intellectual property only be permitted by this clause (9) to the extent necessary for that the conduct terms (taken as a whole) of its respective business; (f) arrangements between any such amendment or new agreement are not otherwise disadvantageous to the Company and any Subsidiary holders of the Company for the purpose of providing services or employees to such Subsidiary; Notes in any material respect, and
(g10) payments made under any transaction entered into for the purpose of granting or altering registration rights with respect to the Capital Stock of the Company; and (h) any transaction or series of related transactions entered into prior to the date hereofPermitted Tax Sharing Agreement.
Appears in 1 contract
Sources: Indenture (Buslease Inc /New/)
Limitation on Transactions with Affiliates. The Company will shall not, and will shall not permit any of its Subsidiaries Restricted Subsidiary to, directly or indirectly, following the Issue Date, enter into or permit to exist any transaction or series of related transactions (including, without limitation, the sale, purchase, exchange or lease of assets, property or services) with or for the benefit of any Affiliate of the Company (other than or any Significant Stockholder of the Company or a Wholly Owned Subsidiary(an "AFFILIATE TRANSACTION") unless such transaction or series of related transactions is entered into in good faith and in writing and (a) such transaction or series of related transactions is on terms that are fair and reasonable to the Company or such Subsidiary and no less favorable to the Company or such Subsidiary, as the case may be, Subsidiary than those that would could be reasonably expected to be available obtained in a comparable arm's length transaction in arm's-length dealings with an unrelated third party, (b) with respect to any transaction or series entity that is not an Affiliate of related transactions involving aggregate value in excess of $3 million, the Company delivers an Officers' Certificate to or a Significant Stockholder of the Trustee certifying Company; PROVIDED that in the event such transaction or series of related transactions complies with clause (a) above, and (c) with respect to any transaction or series of related transactions involving involves aggregate value consideration in excess of $7 2.0 million, either (A) such transaction or series of related transactions has been approved the foregoing determination as to fairness shall be made by a majority of the Disinterested Directors of the CompanyBoard of Directors of the Company as evidenced by a Board Resolution; PROVIDED, or FURTHER, that in the event there is only one Disinterested Director, by such Disinterested Director, or (B) the Company delivers to the Trustee a written opinion of an investment banking firm of national standing or other recognized independent expert with experience appraising the terms and conditions of the type of transaction or series of related transactions for which involves aggregate consideration in excess of $10.0 million, the Company shall, in addition to obtaining the approval of a majority of the Disinterested Directors of its Board of Directors, obtain a written opinion of an opinion is required Independent Financial Advisor stating that the transactions or series terms of related transactions is such transaction are fair and reasonable to the Company or such Subsidiary from a financial point of view; providedPROVIDED, howeverHOWEVER, that this provision shall not apply to: (ai) compensation reasonable and employee customary directors' fees, indemnification and similar arrangements and payments thereunder, (ii) transactions between or among or for the benefit arrangements with any officer, director or employee of the CompanyCompany and its Subsidiaries, including under which are not otherwise prohibited by this Indenture, (iii) any stock option employment agreement entered into by the Company or stock incentive plans, any of its Subsidiaries in the ordinary course of business; , (biv) any transaction solely between or among the Company and/or any Subsidiaries, if such transaction is otherwise in compliance with the Indenture and is on fair and reasonable terms; (c) any transaction otherwise Restricted Payments permitted by the terms provisions of the section Section 4.10, (v) provision of the Indenture described in Section 1009; (d) the execution and delivery of administrative or payments made under any tax sharing agreement between or among any of the Company and any Subsidiary; (e) licensing or sublicensing of use of any intellectual property management services by the Company or its Subsidiaries or any Subsidiary of their officers to any Subsidiary of their respective Subsidiaries in the Company; provided that ordinary course of business, (vi) arm's length transactions entered into in the licensor shall continue to have access to such intellectual property to the extent necessary for the conduct ordinary course of its respective business; (f) arrangements business between the Company or any Restricted Subsidiary and any Subsidiary Affiliate of the Company for or any Significant Stockholder of the purpose Company engaged in a Similar Business and (vii) transactions contemplated by any agreement as in effect as of providing services the Issue Date or employees to any amendment thereto so long as any such Subsidiary; (g) any transaction entered into for the purpose of granting or altering registration rights with respect amendment is not disadvantageous to the Capital Stock Holders of the Company; Notes in any material respect and (h) so long as the amounts paid by the Company and the Restricted Subsidiaries under any transaction or series of related transactions entered into prior to such amended agreement do not exceed the date hereofamounts payable by the Company and the Restricted Subsidiaries on the Issue Date, in each case, shall not be deemed Affiliate Transactions.
Appears in 1 contract
Sources: Indenture (Federal Data Corp /Fa/)
Limitation on Transactions with Affiliates. The Company will not, and will not permit any of its Subsidiaries to, directly or indirectly, enter into or suffer to exist any transaction or series of related transactions (including, without limitation, the sale, purchase, exchange or lease of assets, property or services) with or for the benefit of any Affiliate of the Company (other than including any Affiliate in which the Company or any Subsidiary thereof owns a Wholly Owned Subsidiaryminority interest) unless or holder of 15% or more of the Company's Equity Interests (each such transaction transaction, an "Affiliate Transaction") or series extend, renew, waive or otherwise modify the terms of related transactions is any Affiliate Transaction entered into prior to the Issue Date unless (i) such Affiliate Transaction is solely between or among the Company and its Wholly-Owned Subsidiaries; (ii) such Affiliate Transaction is solely between or among Wholly-Owned Subsidiaries of the Company; (iii) such Affiliate Transaction is for reasonable fees and compensation paid to, and indemnity provided on behalf of, officers, directors, employees or consultants of the Company or any Subsidiary thereof as reasonably determined in good faith by the Board of Directors (when required as described below) or senior management of the Company or of such Subsidiary having no interest in such Affiliate Transaction; or (iv) the terms of such Affiliate Transaction are fair and in writing and (a) such transaction or series of related transactions is on terms that are no less favorable reasonable to the Company or such Subsidiary, as the case may be, than those that would and the terms of such Affiliate Transaction are at least as favorable as the terms which could be reasonably expected to be available obtained by the Company or such Subsidiary, as the case may be, in a comparable transaction in made on an arm's-length dealings with basis between unaffiliated parties. In any Affiliate Transaction involving an unrelated third party, (b) with respect to any transaction amount or series of related transactions involving aggregate having a value in excess of $3 million5 million in any one year which is not permitted under clause (i) or (ii) above, the Company delivers or such Subsidiary, as the case may be, must obtain a resolution of an Officers' Certificate to the Trustee independent committee of its Board of Directors certifying that such transaction or series of related transactions Affiliate Transaction complies with clause (aiii) or (iv) above, and as the case may be. The foregoing provisions will not apply to (ci) with respect the payment of reasonable annual compensation to any transaction directors or series of related transactions involving aggregate value in excess of $7 million, either (A) such transaction or series of related transactions has been approved by a majority of the Disinterested Directors executive officers of the Company, or (ii) the continued performance of transactions with Affiliates disclosed in the event there is only one Disinterested DirectorPlan of Reorganization, by such Disinterested Director, or on the same terms as disclosed in the Plan of Reorganization and (Biii) the Company delivers transactions with Affiliates listed on Schedule 4.9 to the Trustee a written opinion of an investment banking firm of national standing or other recognized independent expert with experience appraising the terms and conditions of the type of transaction or series of related transactions for which an opinion is required stating that the transactions or series of related transactions is fair to the Company or such Subsidiary from a financial point of view; provided, however, that this provision shall not apply to: (a) compensation and employee benefit arrangements with any officer, director or employee of the Company, including under any stock option or stock incentive plans, in the ordinary course of business; (b) any transaction solely between or among the Company and/or any Subsidiaries, if such transaction is otherwise in compliance with the Indenture and is on fair and reasonable terms; (c) any transaction otherwise permitted by the terms of the section of the Indenture described in Section 1009; (d) the execution and delivery of or payments made under any tax sharing agreement between or among any of the Company and any Subsidiary; (e) licensing or sublicensing of use of any intellectual property by the Company or any Subsidiary to any Subsidiary of the Company; provided that the licensor shall continue to have access to such intellectual property to the extent necessary for the conduct of its respective business; (f) arrangements between the Company and any Subsidiary of the Company for the purpose of providing services or employees to such Subsidiary; (g) any transaction entered into for the purpose of granting or altering registration rights with respect to the Capital Stock of the Company; and (h) any transaction or series of related transactions entered into prior to the date hereofIndenture.
Appears in 1 contract
Sources: Indenture (Mariner Health Care Inc)
Limitation on Transactions with Affiliates. (a) The Company will shall not, and will shall not cause or permit any of its Restricted Subsidiaries to, directly or indirectly, to enter into or suffer to exist any transaction or series of related transactions (including, without limitation, the sale, purchase, exchange or lease of assets, property or services) with any Affiliate (each an “Affiliate Transaction”) or for extend, renew, waive or otherwise modify the benefit terms of any Affiliate of Transaction entered into prior to the Outstanding 2016 Notes Issue Date, unless:
(1) such Affiliate Transaction is between or among the Company and its Restricted Subsidiaries or between or among Restricted Subsidiaries; or
(other than 2) the Company or a Wholly Owned Subsidiary) unless terms of such transaction or series of related transactions is entered into in good faith and in writing and (a) such transaction or series of related transactions is on terms that Affiliate Transaction are no not materially less favorable to the Company or such Restricted Subsidiary, as the case may be, than those that would the terms which could reasonably be reasonably expected to be available obtained by the Company or such Restricted Subsidiary, as the case may be, at such time in a comparable transaction in arm'smade on an arm’s-length dealings with an unrelated third party, basis between unaffiliated parties. In any Affiliate Transaction (b) with respect to or any transaction or series of related transactions Affiliate Transactions) involving aggregate value an amount or having a Fair Market Value in excess of $3 million10,000,000 which is not permitted under clause (a)(1) of this Section 10.08, the Company delivers an Officers' Certificate to shall obtain a resolution of the Trustee disinterested members of the Board of Directors of the Company certifying that they have approved such transaction or series of related transactions Affiliate Transaction and determined that such Affiliate Transaction complies with clause (aa)(2) aboveof this Section 10.08, and (c) with respect to in any transaction Affiliate Transaction or any series of related transactions Affiliate Transactions involving aggregate value an amount or having a Fair Market Value in excess of $7 million75,000,000 which is not permitted under clause (a)(1) of this Section 10.08, either the Company must obtain an opinion as to the fairness to the Company or the applicable Restricted Subsidiary of such Affiliate Transaction from a financial point of view issued by a nationally recognized accounting, investment banking or appraisal firm.
(Ab) The provisions of Section 10.08(a) will not apply to:
(1) any Restricted Payment made in compliance with Section 10.06 or any Permitted Investment;
(2) any employment agreement or compensation arrangement with officers, directors and employees in effect on the Outstanding 2016 Notes Issue Date, or entered into thereafter by the Company or any of its Restricted Subsidiaries in the ordinary course of business;
(3) transactions in the ordinary course of business pursuant to any pension, share or partnership unit option, profit sharing, partnership unit or share appreciation rights or other employee benefit plan or agreement (including insurance, indemnification and reimbursement plans and arrangements for directors, officers and employees);
(4) loans to employees not to exceed $10,000,000 in aggregate amount at any one time outstanding;
(5) issuances of Capital Stock, other than Disqualified Capital Stock, of the Company; or any Capital Contribution to the Company;
(6) any payments or other transactions pursuant to any tax-sharing agreement between the Company and any other Person with which the Company files a consolidated tax return or with which the Company is part of a consolidated group for tax purposes;
(7) any agreement as in effect or entered into as of the Outstanding 2016 Notes Issue Date or any amendment thereto or any transaction contemplated thereby (including pursuant to any amendment thereto) and any replacement agreement thereto so long as any such amendment or replacement agreement is not more disadvantageous to the Holders of the Notes in any material respect than the original agreement as in effect on the Outstanding 2016 Notes Issue Date;
(8) any transaction in the ordinary course of business, or series of related transactions has been approved by a majority of the Disinterested disinterested members of the Board of Directors, between the Company or any Restricted Subsidiary and any Affiliate of the Company controlled by the Company that is a joint venture or similar entity;
(9) transactions with Affiliates solely in their capacity as holders of Debt or Capital Stock of the Company or any of its Subsidiaries, where such Affiliates receive the same consideration as non-Affiliates in such transactions;
(10) any transaction with any Person who is not an Affiliate immediately before the consummation of such transaction that becomes an Affiliate as a result of such transaction;
(11) transactions with customers, clients, suppliers or purchasers or sellers of goods or services, in each case in the ordinary course of business, and that are on terms at least as favorable to the Company and its Restricted Subsidiaries as might reasonably have been obtained at such time from an unaffiliated party, or that are considered fair to the Company and its Restricted Subsidiaries in the view of the Board of Directors of the Company;
(12) any reasonable and customary payment approved by a majority of the disinterested members of the Board of Directors of the Company in connection with the registration for sale or distribution by any Affiliate of the Company of any Capital Stock of the Company, including reimbursements for reasonable and customary offering expenses, underwriting discounts and commissions;
(13) sales of accounts receivable, or participations therein, in the event there is only one Disinterested Director, by such Disinterested Director, or connection with any Receivables Facility; and
(B14) any transaction in connection with which the Company delivers to the Trustee obtains a written opinion of from an investment banking firm of national standing or other recognized independent expert with experience appraising the terms and conditions of the type of Independent Financial Advisor that such transaction or series of related transactions for which an opinion is required stating that the transactions or series of related transactions is fair to the Company or such Subsidiary Restricted Subsidiary, as the case may be, from a financial point of view; provided, however, that this provision shall not apply to: (a) compensation and employee benefit arrangements with any officer, director or employee of the Company, including under any stock option or stock incentive plans, in the ordinary course of business; (b) any transaction solely between or among the Company and/or any Subsidiaries, if such transaction is otherwise in compliance with the Indenture and is on fair and reasonable terms; (c) any transaction otherwise permitted by the terms of the section of the Indenture described in Section 1009; (d) the execution and delivery of or payments made under any tax sharing agreement between or among any of the Company and any Subsidiary; (e) licensing or sublicensing of use of any intellectual property by the Company or any Subsidiary to any Subsidiary of the Company; provided that the licensor shall continue to have access to such intellectual property to the extent necessary for the conduct of its respective business; (f) arrangements between the Company and any Subsidiary of the Company for the purpose of providing services or employees to such Subsidiary; (g) any transaction entered into for the purpose of granting or altering registration rights with respect to the Capital Stock of the Company; and (h) any transaction or series of related transactions entered into prior to the date hereof.
Appears in 1 contract
Sources: Indenture (Catalyst Paper Corp)
Limitation on Transactions with Affiliates. The Company will (a) Iridium shall not, and will shall not permit any of its Subsidiaries Restricted Subsidiary to, directly or indirectly, enter into any transaction or series of related transactions (includingincluding the purchase, without limitation, the sale, purchase, lease or exchange or lease of assets, any property or servicesthe rendering of any service) with or for the benefit of any Affiliate or Related Person of the Company Iridium (other than the Company Iridium or a Wholly Wholly-Owned Restricted Subsidiary) unless such transaction or series that involves consideration in excess of related transactions is entered into in good faith and in writing and $5,000,000 (aan "Affiliate Transaction") such transaction or series of related transactions is on terms that (i) that, taken as a whole, are no less favorable to the Company Iridium or such Restricted Subsidiary, as the case may be, than those that would could be reasonably expected to be available in a comparable obtained at the time of such transaction in arm's-length dealings with a Person who is not such an unrelated third partyAffiliate and (ii) that, (b) with respect to any transaction or series of related transactions involving in the event such Affiliate Transaction involves an aggregate value amount in excess of $3 million10,000,000, the Company delivers an Officers' Certificate to the Trustee certifying that such transaction or series of related transactions complies with clause (a) above, are not in writing and (c) with respect to any transaction or series of related transactions involving aggregate value in excess of $7 million, either (A) such transaction or series of related transactions has have not been approved either by a majority of the Disinterested Directors members of the CompanyBoard of Directors having no material direct or indirect financial interest in or with respect to such Affiliate Transaction or by the Related Party Contracts Committee, as defined by the LLC Agreement (if appropriate under Iridium's Bylaws or the LLC Agreement). In addition, if such 60 52 Affiliate Transaction is an Asset Disposition involving any Affiliate or Related Person of Iridium (other than Iridium or a Wholly-Owned Restricted Subsidiary) for an aggregate consideration in the event there is only one Disinterested Directorexcess of $25,000,000, by such Disinterested Director, or (B) the Company delivers a fairness opinion to the Trustee a written opinion of an investment banking firm of national standing or other recognized independent expert with experience appraising the terms and conditions of the type of effect that such transaction or series of related transactions for which an opinion is required stating that the transactions or series of related transactions is fair to the Company or such Subsidiary (from a financial point of view; provided) to Iridium or the Restricted Subsidiary, howeveras applicable, that must be obtained from an Independent Financial Advisor or, with respect to telecommunications-related matters, a recognized expert in the satellite telecommunications industry.
(b) The provisions of the paragraph (a) of this provision Section 4.07(a) shall not apply to: :
(ai) compensation and employee benefit or compensation arrangements with any officer, director or employee of the Company, including under any stock option or stock incentive plans, entered into in the ordinary course of business; business and approved by the Board of Directors;
(bii) any transaction transactions solely between or among Iridium and the Company and/or any Restricted Subsidiaries, if such transaction is otherwise in compliance with the Indenture and is on fair and reasonable terms; ;
(ciii) any transaction otherwise Restricted Payments permitted by Section 4.04;
(iv) Investments by IWCL, an Affiliate or Related Person of Iridium or Capital in the Capital Stock (other than Disqualified Stock) of Iridium or any Restricted Subsidiary; and
(v) a transaction pursuant to an Existing Affiliate Agreement, including any amendments thereto entered into after the Issue Date, provided that the terms of any such amendment are not, taken as a whole, less favorable to Iridium than the terms of the section of the Indenture described in Section 1009; (d) the execution and delivery of or payments made under any tax sharing relevant agreement between or among any of the Company and any Subsidiary; (e) licensing or sublicensing of use of any intellectual property by the Company or any Subsidiary to any Subsidiary of the Company; provided that the licensor shall continue to have access prior to such intellectual property to the extent necessary for the conduct of its respective business; (f) arrangements between the Company and any Subsidiary of the Company for the purpose of providing services or employees to such Subsidiary; (g) any transaction entered into for the purpose of granting or altering registration rights with respect to the Capital Stock of the Company; and (h) any transaction or series of related transactions entered into prior to the date hereofamendment.
Appears in 1 contract
Limitation on Transactions with Affiliates. (i) The Company will shall not, and will shall not permit any of its Restricted Subsidiaries to, directly or indirectly, enter into or suffer to exist any transaction or series of related transactions (including, without limitation, the sale, purchase, exchange or lease of assets, property or services) with any Affiliate (including entities in which the Company or for any of its Restricted Subsidiaries own a minority interest) (an "Affiliate Transaction") or extend, renew, waive or otherwise modify the benefit terms of any Affiliate of Transaction entered into prior to the Company (Issue Date if such extension, renewal, replacement, waiver or other modification is more disadvantageous to the Holders in any material respect than the Company or a Wholly Owned Subsidiary) original agreement as in effect on the Issue Date unless such transaction or series of related transactions is entered into in good faith and in writing and (a) such transaction Affiliate Transaction is between or series among the Company and/or its Restricted Subsidiaries and/or, in the event of related transactions is on the Asset Drop-Down, the Holding Company; or (b) the terms that of such Affiliate Transaction are no less favorable fair and reasonable to the Company or such Restricted Subsidiary, as the case may be, than those that would and the terms of such Affiliate Transaction are at least as favorable as the terms which could be reasonably expected to be available obtained by the Company or such Restricted Subsidiary, as the case may be, in a comparable transaction in made on an arm's-length dealings with basis between unaffiliated parties. In any Affiliate Transaction involving an unrelated third party, (b) with respect to any transaction amount or series of related transactions involving aggregate having a value in excess of $3 million2,000,000 which is not permitted under clause (a) of this paragraph, the Company delivers an Officers' Certificate to shall obtain a resolution of the Trustee Board of Directors of the Company certifying that such transaction or series of related transactions Affiliate Transaction complies with clause (ab) above, and (c) of this paragraph. In any Affiliate Transaction with respect to any transaction or series of related transactions involving aggregate a value in excess of $7 million10,000,000 which is not permitted under clause (a) of this paragraph (other than any sale by the Company of its Capital Stock that is not Disqualified Capital Stock), either the Company shall obtain a written opinion as to the fairness of such a transaction from an independent investment banking firm.
(Aii) such The limitations set forth in Section 4.11(i) shall not apply to (a) any Restricted Payment that is not prohibited by Section 4.09 hereof or a Permitted Investment permitted by Section 4.13 hereof, (b) any transaction pursuant to an agreement, arrangement or series of related transactions has been understanding existing on the Issue Date, (c) any transaction, compensation or agreement approved by a majority the Board of the Disinterested Directors of the Company, with an officer or in the event there is only one Disinterested Director, by such Disinterested Directordirector of, or (B) the Company delivers to the Trustee a written opinion of an investment banking firm of national standing or other recognized independent expert with experience appraising the terms and conditions of the type of transaction or series of related transactions for which an opinion is required stating that the transactions or series of related transactions is fair to consultant to, the Company or such of any Subsidiary from a financial point of view; provided, however, that this provision shall not apply to: (a) compensation and employee benefit arrangements with any officer, in his or her capacity as officer or director or employee of the Company, including under any stock option or stock incentive plans, entered into in the ordinary course of business; , (bd) any transaction solely between or among the Company and/or any Subsidiariespermitted by Section 5.01 hereof, if such transaction is otherwise in compliance with the Indenture and is on fair and reasonable terms; (ce) any transaction otherwise permitted by the terms of the section of the Indenture described in Section 1009; (d1) the execution and delivery of or payments made under any tax sharing agreement between or among any of the Company and any Subsidiary; (e) licensing or sublicensing of use of any intellectual property by the Company or any Subsidiary to any Subsidiary of the Company; provided that the licensor shall continue to have access to such intellectual property to the extent necessary for the conduct of its respective business; (f) arrangements between the Company and any Subsidiary of the Company for the purpose of providing services THL Group Member solely in its capacity as a holder or employees to such Subsidiary; (g) any transaction entered into for the purpose of granting or altering registration rights with respect to the Capital Stock buyer of the Company; 's Capital Stock or (2) in the event of the Asset Drop-Down, between the New Operating Company and the Holding Company, solely in its capacity as a holder or buyer of the New Operating Company's Capital Stock, provided that any such transaction described in this clause (he) is not otherwise prohibited by this Indenture, or (f) in the event of the Asset Drop-Down, any commercially reasonable transaction between the New Operating Company and the Holding Company solely in its capacity as a holder or series buyer of related transactions entered into prior to the date hereofNew Operating Company's Indebtedness provided that any such transaction is not otherwise prohibited by this Indenture.
Appears in 1 contract
Sources: Indenture (United Industries Corp)
Limitation on Transactions with Affiliates. The Company will shall not, and will shall not permit any of its the Restricted Subsidiaries to, directly or indirectly, enter into or conduct any transaction or series of related transactions (includingincluding the purchase, without limitation, the sale, purchase, lease or exchange or lease of assets, any property or servicesthe rendering of any service) involving payments or value to such Affiliate with or for the benefit of any Affiliate of the Company or any of the Restricted Subsidiaries (other than an "Affiliate Transaction") unless the terms of such Affiliate Transaction are either (x) fair to the Company or such Restricted Subsidiary from a Wholly Owned Subsidiaryfinancial point of view or (y) unless such transaction or series of related transactions is entered into in good faith and in writing and (a) such transaction or series of related transactions is on terms that are no less favorable to the Company or such Restricted Subsidiary, as the case may be, than those that would could be reasonably expected to be available in a comparable obtained at the time of such transaction in arm's-length dealings with a Person who is not such an unrelated third party, (b) with respect to Affiliate. For any transaction or series of related transactions involving aggregate value that involves in excess of $3 million1,000,000, a majority of the Company delivers an Officers' Certificate to disinterested members of the Trustee certifying Board of Directors shall determine that such the transaction or series satisfies the criteria of related transactions complies with clause (a) above, and (c) with respect to the preceding sentence. For any transaction or series of related transactions involving aggregate value Affiliate Transaction that involves in excess of $7 million25,000,000, either (A) such transaction or series of related transactions has been approved by a majority of the Disinterested Directors of the Company, or in the event there is only one Disinterested Director, by such Disinterested Director, or (B) the Company delivers to the Trustee shall obtain an opinion from a written opinion of an nationally recognized independent investment banking firm of national standing or other recognized independent expert firm with experience in evaluating or appraising the terms and conditions of the type of transaction (or series of related transactions transactions) for which an the opinion is required (an "Independent Evaluation Firm") stating in substance that the transactions terms of such Affiliate Transaction are in compliance with either clause (x) or series (y) above. For any Affiliate Transaction (other than as set forth in clauses (i) through (x) (other than clause (viii)) below) that involves in excess of related transactions is fair to $1,000,000, for so long as Textron and its Subsidiaries are the Holders of at least a majority of the aggregate Liquidation Preference of any of the Series A Redeemable Preferred Stock, the Series B Redeemable Preferred Stock or the Series C Redeemable Preferred Stock, the Company shall obtain the prior consent of Textron unless the Company shall have obtained an opinion from an Independent Evaluation Firm stating in substance that the terms of such Affiliate Transaction are in compliance with either clause (x) or such Subsidiary from a financial point (y) above. The requirements of view; provided, however, that this provision the immediately preceding paragraph shall not apply to: :
(ai) compensation any Restricted Payment permitted to be made pursuant to Section 7(b);
(ii) any issuance of securities, or other payments, awards or grants in cash, securities or otherwise pursuant to employment arrangements, or any stock options and employee stock ownership plans for the benefit arrangements with any officerof employees, director or employee officers and directors, consultants and advisors approved by the Board of Directors of the Company, including under or any stock option loans or stock incentive plansadvances to employees in the ordinary course of business of the Company or any of its Subsidiaries;
(iii) any transaction between or among the Company and any Restricted Subsidiary or between or among Restricted Subsidiaries so long as, in the case of any Restricted Subsidiary that is not a Wholly Owned Subsidiary, no Affiliate of the Company (other than a Restricted Subsidiary) owns any Capital Stock (other than directors' qualifying shares) in such Restricted Subsidiary;
(iv) indemnification agreements with, and the payment of fees and indemnities to, directors, officers and employees of the Company and its Subsidiaries or any employment, noncompetition or confidentiality agreements entered into by the Company or any of its Subsidiaries with its directors, officers or employees in the ordinary course of business; ;
(bv) any transaction solely between or among the issuance of Capital Stock of the Company and/or any Subsidiaries, if such transaction is or the receipt of capital contributions by the Company otherwise in compliance with this Certificate of Designation;
(vi) transactions pursuant to agreements as in existence on the Indenture Issuance Date of the Series A1 Redeemable Preferred Stock, Series B1 Redeemable Preferred Stock and is on fair and reasonable terms; Series C1 Redeemable Preferred Stock;
(cvii) any transaction otherwise permitted payments contemplated by the terms Advisory Agreement and payments in connection with the Acquisition, including the reimbursement of out-of-pocket expenses incurred in connection with the Acquisition;
(viii) for so long as Textron and its Subsidiaries are the Holders of at least a majority of the section aggregate Liquidation Preference of the Indenture described in Section 1009; (d) the execution and delivery of or payments made under any tax sharing agreement between or among any of the Series A Redeemable Preferred Stock, the Series B Redeemable Preferred Stock or the Series C Redeemable Preferred Stock, any Affiliate Transaction with respect to which the Company and shall have obtained the prior consent of Textron;
(ix) any Subsidiary; (e) licensing management, service, purchase, supply or sublicensing similar agreement relating to operations of use a business entered into in the ordinary course of any intellectual property by the Company's business between the Company or any Restricted Subsidiary to and any Subsidiary of the Company; provided that the licensor shall continue to have access to Affiliate (including an Unrestricted Subsidiary), so long as any such intellectual property agreement is on terms no less favorable to the extent necessary for the conduct of its respective businessCompany than those that could be obtained in a comparable arm's-length transaction with an entity that is not an Affiliate or a Related Person; and
(fx) arrangements any reasonable corporate service agreements, tax sharing agreements and other agreements customary in connection with spin-off transactions entered into between the Company or any Restricted Subsidiary and any Subsidiary of the Company for the purpose of providing services or employees to such Subsidiary; (g) any transaction entered into for the purpose of granting or altering registration rights with respect to the Capital Stock of the Company; and (h) any transaction or series of related transactions entered into prior to the date hereofspun-off entity.
Appears in 1 contract
Sources: Purchase Agreement (Textron Inc)
Limitation on Transactions with Affiliates. The Company will not, and will not permit any of its Restricted Subsidiaries to, directly or indirectly, enter into or suffer to exist any transaction or series of related transactions (including, without limitation, the sale, purchase, exchange or lease of assets, property or services) with any Affiliate (including entities in which the Company or for any of its Restricted Subsidiaries own a minority interest) or holder of 10% or more of the benefit Company's Common Stock (an "Affiliate Transaction") or extend, renew, waive or otherwise modify the terms of any Affiliate Transaction entered into prior to the Issue Date unless (i) such Affiliate Transaction is between or among the Company and its Wholly-Owned Subsidiaries or between or among Wholly-Owned Subsidiaries of the Company Company; or (other than ii) the Company or a Wholly Owned Subsidiary) unless terms of such transaction or series of related transactions is entered into in good faith Affiliate Transaction are fair and in writing and (a) such transaction or series of related transactions is on terms that are no less favorable reasonable to the Company or such Restricted Subsidiary, as the case may be, than those that would and the terms of such Affiliate Transaction are commercially reasonable and at least as favorable as the terms which could be reasonably expected to be available obtained by the Company or such Restricted Subsidiary, as the case may be, in a comparable transaction in made on an 62 -54- arm's-length dealings basis between unaffiliated parties. In any Affiliate Transaction involving an amount or having a value in excess of $1 million which is not permitted under clause (i) above, the Company must obtain a resolution of the Board of Directors certifying that such Affiliate Transaction complies with an unrelated third party, clause (bii) above. In transactions with respect to any transaction or series of related transactions involving aggregate a value in excess of $3 millionmillion which are not permitted under clause (i) above, the Company delivers an Officers' Certificate must obtain a written opinion as to the Trustee fairness of such a transaction from an independent investment banking firm, provided, that, in the case of loans from the Company to an Affiliate or loans from an Affiliate to the Company, no such fairness opinion shall be required if the Company has obtained a resolution of the Board of Directors certifying that such transaction or series of related transactions Affiliate Transaction complies with clause (aii) above. The foregoing provisions will not apply to (i) any Restricted Payment that is not prohibited by Section 4.09 hereof, and (cii) with respect to any transaction or series of related transactions involving aggregate value in excess of $7 milliontransaction, either (A) such transaction or series of related transactions has been approved by a majority the Board of the Disinterested Directors of the Company, with an officer or in the event there is only one Disinterested Director, by such Disinterested Director, or (B) the Company delivers to the Trustee a written opinion director of an investment banking firm of national standing or other recognized independent expert with experience appraising the terms and conditions of the type of transaction or series of related transactions for which an opinion is required stating that the transactions or series of related transactions is fair to the Company or such of any Subsidiary from a financial point of view; provided, however, that this provision shall not apply to: (a) compensation and employee benefit arrangements with any officer, in his or her capacity as officer or director or employee of the Company, including under any stock option or stock incentive plans, entered into in the ordinary course of business; , or (b) any transaction solely between or among the Company and/or any Subsidiaries, if such transaction is otherwise in compliance with the Indenture and is on fair and reasonable terms; (c) any transaction otherwise permitted by the terms of the section of the Indenture described in Section 1009; (d) the execution and delivery of or payments made under any tax sharing agreement between or among any of the Company and any Subsidiary; (e) licensing or sublicensing of use of any intellectual property by the Company or any Subsidiary to any Subsidiary of the Company; provided that the licensor shall continue to have access to such intellectual property to the extent necessary for the conduct of its respective business; (f) arrangements between the Company and any Subsidiary of the Company for the purpose of providing services or employees to such Subsidiary; (giii) any transaction entered into for in the purpose ordinary course of granting business, consistent with past practice, with any of UpRight Ireland, Instant Deutschand or altering registration rights with respect to the Capital Stock of the Company; and (h) any transaction or series of related transactions entered into prior to the date hereofInstant Australia.
Appears in 1 contract
Limitation on Transactions with Affiliates. The Company will Except as set forth in Part 5.8 of the Disclosure Schedule, from the date hereof until the Closing Date, the Sellers shall not, and will shall not permit any of its their Subsidiaries to, directly or indirectly, sell, lease, transfer or otherwise dispose of any of the Target Assets or to permit any Target Subsidiary to purchase any property or assets from, or enter into any transaction contract, understanding, loan, advance or series of related transactions (includingguarantee with, without limitation, the sale, purchase, exchange or lease of assets, property or services) with or for the benefit of any of, an Affiliate of the Company Sellers (other than the Company Targeted Businesses) or a Wholly Owned Subsidiaryany of their Subsidiaries (other than Target Subsidiaries) (an "AFFILIATE TRANSACTION"), unless such transaction or series of related transactions is entered into in good faith and in writing and (a) such transaction or series of related transactions Affiliate Transaction is on terms that are no less favorable to the Company Targeted Businesses or such SubsidiaryTarget Subsidiary than those that could have been obtained in a comparable transaction from an unrelated Person and (b) with respect to any Affiliate Transaction (or series of related Affiliate Transactions) involving or having a potential value of more than $500,000, in addition to compliance with clause (a), such Affiliate Transaction shall also be approved by a majority of the disinterested members of the Board of Directors of Sylvan or the Board of Managers of Ventures, as the case may be, than those after determining, in their reasonable good faith judgment, that would be reasonably expected to be available in a comparable transaction in arm's-length dealings with an unrelated third party, (b) with respect to any transaction or series of related transactions involving aggregate value in excess of $3 million, the Company delivers an Officers' Certificate to the Trustee certifying that such transaction or series of related transactions complies with clause (a) above, and (c) with respect to any transaction or series of related transactions involving aggregate value in excess of $7 million, either (Ai) such transaction or series of related transactions has been approved by a majority is in the best interest of the Disinterested Directors Targeted Businesses based on full disclosure of the Company, or in the event there is only one Disinterested Director, by such Disinterested Director, or all relevant facts and circumstances and (Bii) the Company delivers to the Trustee a written opinion of an investment banking firm of national standing or other recognized independent expert with experience appraising the terms and conditions of the type of transaction or series of related transactions for which an opinion is required stating that the transactions or series of related transactions is fair to the Company or such Subsidiary from a financial point of view; provided, however, that this provision shall not apply to: (a) compensation and employee benefit arrangements with any officer, director or employee of the Company, including under any stock option or stock incentive plans, in the ordinary course of business; (b) any transaction solely between or among the Company and/or any Subsidiaries, if such transaction is otherwise in compliance with the Indenture and is on fair and reasonable terms; terms competitive with those that could be obtained from an unrelated third party (c) any transaction otherwise permitted such approval and determination to be evidenced by the terms a resolution of such disinterested directors of the section Board of Directors of Sylvan or the Indenture described in Board of Managers of Ventures, as the case may be). Notwithstanding the foregoing, the provisions of this Section 1009; (d) 5.8 shall not prevent the execution and delivery of Sellers from entering into this Agreement or payments made under any tax sharing agreement between or among any of the Company and any Subsidiary; (e) licensing or sublicensing of use of any intellectual property other Transactions contemplated by the Company or any Subsidiary to any Subsidiary of the Company; provided that the licensor shall continue to have access to such intellectual property to the extent necessary for the conduct of its respective business; (f) arrangements between the Company and any Subsidiary of the Company for the purpose of providing services or employees to such Subsidiary; (g) any transaction entered into for the purpose of granting or altering registration rights with respect to the Capital Stock of the Company; and (h) any transaction or series of related transactions entered into prior to the date hereofthis Agreement.
Appears in 1 contract
Sources: Asset Purchase Agreement (Sylvan Learning Systems Inc)
Limitation on Transactions with Affiliates. The Company Borrower will not, and will not permit any of its Subsidiaries Subsidiary to, directly or indirectly, enter into conduct any material transactions with any of its Affiliates (other than the Borrower or a Subsidiary or any entity that becomes a Subsidiary as a result of such transaction and not involving any other Affiliate) unless the terms of such transaction (taken as a whole) are at least as favorable to the Borrower or such Subsidiary as it would obtain at the time in a comparable arm’s length transaction (which includes, for the avoidance of doubt, any transaction consummated for fair market value) with a Person that is not an Affiliate (or, if no comparable transaction is available with which to compare such transaction, such transaction is otherwise fair to the Borrower or series such Subsidiary as determined by an Authorized Officer of the Borrower in good faith). Notwithstanding the foregoing, the restrictions set forth in this covenant shall not apply to:
(a) transactions pursuant to agreements set forth on Schedule 6.07;
(b) any Restricted Payment permitted by Section 6.05;
(c) any individual Investments in non-Wholly-Owned Subsidiaries and joint ventures not otherwise prohibited by this Agreement as long as the aggregate related transactions of the Borrower and its Subsidiaries with, and aggregate Investments in, such non-Wholly Owned Subsidiary or joint venture is on an arms’ length basis;
(includingd) any lease (other than on Oil and Gas Properties) entered into between the Borrower or any Subsidiary, without limitationas lessee, the sale, purchase, exchange or lease of assets, property or services) with or for the benefit of and any Affiliate of the Company (other than the Company or a Wholly Owned Subsidiary) unless such transaction or series of related transactions is entered into in good faith and in writing and (a) such transaction or series of related transactions is on terms that are no less favorable to the Company or such SubsidiaryBorrower, as the case may belessor, than those that would be reasonably expected to be available in a comparable transaction in arm's-length dealings with an unrelated third party, (b) with respect to any transaction or series of related transactions involving aggregate value in excess of $3 million, the Company delivers an Officers' Certificate to the Trustee certifying that such transaction or series of related transactions complies with clause (a) above, and (c) with respect to any transaction or series of related transactions involving aggregate value in excess of $7 million, either (A) such transaction or series of related transactions has been which is approved by a majority of the Disinterested Directors disinterested members of the Company, or in the event there is only one Disinterested Director, by such Disinterested Director, or (B) the Company delivers to the Trustee a written opinion board of an investment banking firm of national standing or other recognized independent expert with experience appraising the terms and conditions directors of the type of transaction Borrower or series of related transactions for which an opinion is required stating that the transactions or series of related transactions is fair to the Company or such Subsidiary from a financial point of view; provided, however, that this provision shall not apply to: (a) compensation and employee benefit arrangements with any officer, director or employee of the Company, including under any stock option or stock incentive plans, otherwise in the ordinary course of business; (b) any transaction solely between or among the Company and/or any Subsidiaries, if such transaction is otherwise in compliance with the Indenture and is on fair and reasonable terms; (c) any transaction otherwise permitted by the terms of the section of the Indenture described in Section 1009; (d) the execution and delivery of or payments made under any tax sharing agreement between or among any of the Company and any Subsidiary; ;
(e) licensing employment and severance arrangements and health, disability, retirement savings, employee benefit and similar insurance or sublicensing benefit plans between the Borrower and the Subsidiaries and their respective directors, officers, employees or consultants (including management and employee benefit plans or agreements, subscription agreements or similar agreements pertaining to the repurchase of use Equity Interests pursuant to put/call rights or similar rights with current or former employees, officers, directors or consultants and equity option or incentive plans and other compensation arrangements) in the ordinary course of any intellectual property business or as otherwise approved by the Company or any Subsidiary to any Subsidiary board of directors of the Company; Borrower;
(f) any issuance of Equity Interests or other payments, awards or grants in cash, securities, or otherwise pursuant to, or the funding of, employment, consultant and director arrangements, equity options and equity ownership plans approved by the board of directors of the Borrower;
(g) the payment of customary fees and reasonable out of pocket costs to, and indemnities provided that on behalf of, directors, managers, consultants, officers and employees of the licensor shall continue to have access to such intellectual property Borrower and the Subsidiaries in the ordinary course of business to the extent necessary for the conduct of its respective business; (f) arrangements between the Company and any Subsidiary of the Company for the purpose of providing services or employees to such Subsidiary; (g) any transaction entered into for the purpose of granting or altering registration rights with respect attributable to the Capital Stock of ownership or operation of, or in connection with any services provided to, the Company; Borrower and the Subsidiaries;
(h) any transaction payments of loans (or series cancellation of related transactions entered into prior loans) to officers, directors, employees or consultants which are approved by the date hereofboard of directors of the Borrower; and
(i) non-exclusive licenses of patents, copyrights, trademarks, trade secrets and other intellectual property.
Appears in 1 contract
Limitation on Transactions with Affiliates. The Company will not, and will not permit any of its the Restricted Subsidiaries to, directly or indirectly, enter into or suffer to exist any transaction or series of related transactions (including, without limitation, the sale, transfer, disposition, purchase, exchange or lease of assets, property or services, employee compensation arrangements or the rendering of any service) with with, or for the benefit of of, any Affiliate of the Company (other than the Company or a Wholly Wholly- Owned Restricted Subsidiary) unless such transaction or series of related transactions is entered into in good faith and in writing and except (ai) such transaction or series of related transactions is on terms that are no less favorable to the Company or such the Restricted Subsidiary, as the case may be, than those that would be reasonably expected to be available which could have been obtained in a comparable transaction in arm's-length dealings at such time from persons who do not have such a relationship with an unrelated third partythe Company, (bii) with respect to any transaction or series of related transactions involving aggregate payments or value in excess of equal to or greater than $3 million2,000,000, the terms of such transaction or transactions, as the case may be, shall be set forth in writing and the Company delivers shall have delivered an Officers' Officer's Certificate to the Trustee certifying that such transaction or series of related transactions complies comply with the preceding clause (a) abovei), and (ciii) with respect to any transaction or series of related transactions involving aggregate payments or value equal to or greater than $5,000,000, the terms of such transaction or transactions, as the case may be, shall be set forth in excess of $7 million, either (A) writing and the Company shall have delivered an Officer's Certificate to the Trustee certifying that such transaction or series of related transactions has (A) comply with the preceding clause (i) and (B) have been approved by a majority of the Board of Directors of the Company, including a majority of the Disinterested Directors of the Board of Directors of the Company, or in lieu of the event there is only one Disinterested Director, certification required by such Disinterested Director, or the preceding clause (B) ), the Company delivers shall have delivered to the Trustee a written opinion of an investment banking firm of national standing or other recognized independent expert with experience appraising the terms and conditions of the type of transaction or series of related transactions for which an its opinion is required being delivered stating that the transactions transaction or series of related transactions is fair to the Company or such Restricted Subsidiary from a financial point of view; provided. For the purposes of the foregoing, however, that this provision a director of the Company shall not apply to: be considered "interested" with respect to a transaction solely by virtue of being a director of the other party to such transaction. This Section 1014 will not restrict the Company from (a) compensation making dividends permitted by Section 1009, (b) paying reasonable and employee benefit arrangements with any officer, director or employee customary regular fees to directors of the Company who are not employees of the Company, including under (c) making loans or advances to officers of the Company and the Restricted Subsidiaries in the ordinary course of business for bona fide business purposes of the Company in an aggregate principal amount not to exceed $1,000,000 outstanding at any stock option one time and (d) the Company's employee compensation and other benefit arrangements existing on the Issue Date or stock incentive plans, thereafter entered into by the Company or any Restricted Subsidiary in the ordinary course of business; (b) any transaction solely between or among the Company and/or any Subsidiaries, if such transaction is otherwise in compliance with the Indenture and is on fair and reasonable terms; (c) any transaction otherwise permitted by the terms of the section of the Indenture described in Section 1009; (d) the execution and delivery of or payments made under any tax sharing agreement between or among any of the Company and any Subsidiary; (e) licensing or sublicensing of use of any intellectual property by the Company or any Subsidiary to any Subsidiary of the Company; provided that the licensor shall continue to have access to such intellectual property to the extent necessary for the conduct of its respective business; (f) arrangements between the Company and any Subsidiary of the Company for the purpose of providing services or employees to such Subsidiary; (g) any transaction entered into for the purpose of granting or altering registration rights with respect to the Capital Stock of the Company; and (h) any transaction or series of related transactions entered into prior to the date hereof.
Appears in 1 contract
Limitation on Transactions with Affiliates. The Company will (a) Except as otherwise permitted under this Indenture, the Issuer shall not, and will shall not permit any of its Restricted Subsidiaries to, directly make any Investment, loan, advance, guarantee or indirectlycapital contribution to, enter into any transaction or series of related transactions (including, without limitation, the sale, purchase, exchange or lease of assets, property or services) with or for the benefit of, or sell, lease or otherwise transfer or dispose of any of its properties or assets to, or for the benefit of, or purchase or lease any property or assets from, or enter into or amend any contract, agreement or understanding with, or for the benefit of, any Affiliate of the Company Issuer or any of its Restricted Subsidiaries, unless:
(other than the Company or a Wholly Owned Subsidiary) unless such transaction or series of related transactions is entered into in good faith and in writing and (a1) such transaction or series of related transactions is in the best interests of the Issuer or such Restricted Subsidiary based on all relevant facts and circumstances;
(2) such transaction or series of transactions is fair to the Issuer or such Restricted Subsidiary and on terms that are no less favorable to the Company Issuer or such Restricted Subsidiary, as the case may be, than those that would be reasonably expected to be available could have been obtained in a comparable transaction in on an arm's-length dealings basis from a Person that is not an Affiliate of the Issuer or any of its Restricted Subsidiaries; and
(3) (a) with an unrelated third partyrespect to a transaction or series of transactions involving aggregate payments in excess of $5 million, the Board of Directors and a majority of the Disinterested Directors shall approve such transaction or series of transactions by a Board Resolution evidencing their determination that such transaction or series of transactions complies with clauses (1) and (2) above, and (b) with respect to any a transaction or series of related transactions involving aggregate value in excess of payments equal to or greater than $3 15 million, the Company delivers an Officers' Certificate Issuer receives a written opinion from a nationally recognized investment bank or valuation firm or, with respect to a transaction requiring the Trustee certifying valuation of real property, a nationally recognized real estate appraisal firm, that such transaction or series of related transactions complies with clause (a) above, and (c) with respect to any transaction or series of related transactions involving aggregate value in excess of $7 million, either (A) such transaction or series of related transactions has been approved by a majority of the Disinterested Directors of the Company, or in the event there is only one Disinterested Director, by such Disinterested Director, or (B) the Company delivers to the Trustee a written opinion of an investment banking firm of national standing or other recognized independent expert with experience appraising the terms and conditions of the type of transaction or series of related transactions for which an opinion is required stating that the transactions or series of related transactions is fair to the Company Issuer or such Restricted Subsidiary from a financial point of view; provided, however, that this provision shall not apply to: .
(a) compensation shall prohibit:
(1) any payment of money or issuance of securities by the Issuer or any Restricted Subsidiary of the Issuer pursuant to employment agreements or arrangements and employee benefit arrangements with any officerplans, director including reimbursement or employee advancement of out-of-pocket expenses and directors' and officers' liability insurance;
(2) reasonable and customary payments and other benefits (including indemnification) provided to directors for service on the Board of Directors of the Issuer or any of its Restricted Subsidiaries and reimbursement of expenses related thereto;
(3) agreements and instruments to which ▇▇▇▇▇ & Company, including under any stock option L.P. or stock incentive plans, in the ordinary course of business; (b) any transaction solely between or among the Company and/or any Subsidiaries, if such transaction is otherwise in compliance with the Indenture and is on fair and reasonable terms; (c) any transaction otherwise permitted by the terms of the section of the Indenture described in Section 1009; (d) the execution and delivery of or payments made under any tax sharing agreement between or among any of its Affiliates is a party which are in effect on the Company Issue Date or any instruments or securities held by ▇▇▇▇▇ & Company, L.P. or any of its Affiliates on the Issue Date or the payment of fees, reimbursements, indemnifications and other amounts and other transactions pursuant to such agreements, instruments or securities; or
(4) transactions between the Issuer and any Subsidiary; (e) licensing or sublicensing of use of any intellectual property by the Company or any Subsidiary to any Restricted Subsidiary of the CompanyIssuer, or between one Restricted Subsidiary of the Issuer and another Restricted Subsidiary of the Issuer; provided that not more than 20% of any such Restricted Subsidiary is owned by any Affiliate of the licensor shall continue to have access to such intellectual property to the extent necessary for the conduct Issuer or any of its respective business; Restricted Subsidiaries (f) arrangements between other than the Company and any Issuer or a Wholly-Owned Subsidiary of the Company for the purpose of providing services or employees to such Issuer which is a Restricted Subsidiary; (g) any transaction entered into for the purpose of granting or altering registration rights with respect to the Capital Stock of the Company; and (h) any transaction or series of related transactions entered into prior to the date hereof).
Appears in 1 contract
Sources: Indenture (Nortek Holdings Inc)
Limitation on Transactions with Affiliates. The (a) Neither the Company nor any Restricted Subsidiary of the Company will not, and will not permit any of its Subsidiaries to, directly or indirectly, enter into any transaction or series of related transactions (including, without limitation, the sale, purchase, exchange or lease of assets, property or services) with or for the benefit of any of their Affiliates (each, an "Affiliate of the Company (other than the Company or a Wholly Owned Subsidiary) unless such transaction or series of related transactions is entered into Transaction"), except in good faith and in writing and (a) such transaction or series of related transactions is on terms that are no less favorable to the Company or such Restricted Subsidiary, as the case may be, than those that would be reasonably expected to be available could have been obtained in a comparable transaction in on an arm's-length dealings with basis from a Person not an unrelated third party, Affiliate of the Company or such Restricted Subsidiary. All Affiliate Transactions (b) with respect to any transaction or and each series of related transactions Affiliate Transactions which are similar or part of a common plan) involving aggregate payments or other property with a fair market value in excess of $3 million2,500,000 shall be approved by the Board of Directors of the Company or such Restricted Subsidiary, such approval to be evidenced by a Board Resolution stating that such Board of Directors has determined that such transaction complies with the foregoing provisions, and shall be certified by an officer of the Company as complying with the foregoing provisions such certification to be evidenced by an Officer's Certificate delivered to the Trustee. If the Company or any Restricted Subsidiary of the Company enters into an Affiliate Transaction (or a series of related Affiliate Transactions related to a common plan) that involves an aggregate fair market value of more than $15,000,000, the Company delivers an Officers' Certificate or such Restricted Subsidiary shall, prior to the Trustee certifying that consummation thereof, obtain a favorable opinion from an independent Financial Advisor (and file the same with the Trustee) as to either the fairness of such transaction or series of related transactions complies with clause (a) aboveto the Company or the relevant Restricted Subsidiary, and (c) with respect to any transaction as the case may be, from a financial point of view or series of related transactions involving aggregate value in excess of $7 million, either (A) that such transaction or series of related transactions has been approved by a majority of the Disinterested Directors of the Company, or in the event there is only one Disinterested Director, by such Disinterested Director, or (B) the Company delivers to the Trustee a written opinion of an investment banking firm of national standing or other recognized independent expert with experience appraising the on terms and conditions of the type of transaction or series of related transactions for which an opinion is required stating that the transactions or series of related transactions is fair no less favorable to the Company or such Subsidiary Restricted Subsidiary, as the case may be, than those that could have been obtained in a comparable transaction on an arm's-length basis from a financial point Person not an Affiliate of view; provided, however, that this provision the Company or such Restricted Subsidiary.
(b) The foregoing restrictions shall not apply to: :
(ai) reasonable fees and compensation paid to and employee benefit arrangements with any officerindemnity provided on behalf of, director officers, directors, employees or employee consultants of the Company or any Restricted Subsidiary as determined in good faith by the Company, including under 's Board of Directors or senior management;
(ii) transactions exclusively between or among the Company and any stock option of its Restricted Subsidiaries or stock incentive plans, exclusively between or among such Restricted Subsidiaries;
(iii) any Restricted Payment made in compliance with Section 4.03;
(iv) any Permitted Investments;
(v) any agreement as in effect as of the Issue Date or any amendment thereto or replacement agreement thereto so long as any such amendment or replacement agreement taken as a whole is not more disadvantageous to the holders of the Securities in any material respect than such agreement;
(vi) transactions with suppliers or other purchasers for the sale or purchase of goods in the ordinary course of business; ;
(vii) the issuance of any Qualified Capital Stock of the Company to an Affiliate of the Company or the Incurrence of any Indebtedness to be owing to any Affiliate of the Company to the extent such Indebtedness was incurred under the Consolidated Fixed Charge Coverage Ratio test set forth under clause (b) of Section 4.04;
(viii) any transaction solely between or among transactions involving the Company and/or or any of its Restricted Subsidiaries, if such transaction is otherwise on the one hand, and Bear, Stearns & Co. Inc. or any of its Affiliates, on the other ▇and, in compliance connection with the Indenture Transactions and is any amendment, modification, supplement, extension, refinancing, replacement and other transactions related thereto, or any management, financial advisory, financing, underwriting or placement services or any other investment banking, capital markets, banking or similar services, which transactions are on fair and reasonable terms; terms that are no less favorable to the Company or such Restricted Subsidiary, as the case may be, than those that could have been obtained in a comparable transaction on an arm's-length basis from a Person not an Affiliate of the Company or such Restricted Subsidiary, as determined in good faith by the Company's Board of Directors;
(cix) any transaction otherwise permitted by between the terms Company or any of its Restricted Subsidiaries, on the one hand, and any parent of the section Company that guarantees the Company's obligations under the Securities (a "Parent Guarantor") or any of such Parent Guarantor's subsidiaries other than the Company and its Restricted Subsidiaries (the "Parent's Subsidiaries"), on the other hand, relating to (i) the sale or disposition of assets or (ii) the integration of the Indenture described in Section 1009; (d) business and operations of the execution Parent Guarantor and delivery of or payments made under any tax sharing agreement between or among any the Parent's Subsidiaries with that of the Company and any Subsidiary; (e) licensing its Restricted Subsidiaries, including, without limitation, the provision or sublicensing receipt of services and the use of manufacturing, office and distribution facilities and other similar transactions, in each case so long as any intellectual property such transaction, when taken together with all other such transactions and agreements, is fair to the Company and its Restricted Subsidiaries (as determined by the Board of Directors of the Company acting in good faith if the value of such transactions exceeds $2,500,000 in any fiscal year);
(x) the issuance by the Parent Guarantor and/or any of the Parent's Subsidiaries of a Guarantee of the Securities;
(xi) the issuance by the Company or any Subsidiary to any Subsidiary and its Restricted Subsidiaries of guarantees of Indebtedness of the CompanyParent Guarantor so long as such guarantees are Incurred in compliance with Section 4.04; or
(xii) the payment of reasonable and customary management, consulting and advisory fees and related expenses on the terms and in the amounts provided that for in agreements in effect on the licensor shall continue to have access to such intellectual property to the extent necessary for the conduct of its respective business; (f) arrangements between the Company and any Subsidiary of the Company for the purpose of providing services or employees to such Subsidiary; (g) any transaction entered into for the purpose of granting or altering registration rights with respect to the Capital Stock of the Company; and (h) any transaction or series of related transactions entered into prior to the date hereofIssue Date.
Appears in 1 contract
Sources: Indenture (Aearo CO I)
Limitation on Transactions with Affiliates. The Company will (a) Issuer shall not, and will shall not permit any of its Subsidiaries Restricted Subsidiary to, directly or indirectly, enter into or permit to exist any transaction or series of related transactions (including, without limitation, the purchase, sale, purchase, lease or exchange or lease of assets, any property or servicesthe rendering of any service) with with, or for the benefit of, any of any its Affiliates (each an "Affiliate of the Company (other than the Company or a Wholly Owned Subsidiary) Transaction"), unless such transaction or series of related transactions is entered into in good faith and in writing and (a) such transaction or series of related transactions is on terms that are no less favorable to the Company than those that might reasonably have been obtained in a comparable transaction at such time on an arm's-length basis from a Person that is not an Affiliate of Issuer or such Restricted Subsidiary. All Affiliate Transactions (and each series of related Affiliate Transactions) involving aggregate value in excess of $500,000 shall be approved by a majority of the Disin- terested Directors of the Board of Directors of Issuer or such Restricted Subsidiary, as the case may be, than those that would be reasonably expected such approval to be available in evidenced by a comparable Board Resolution stating that such Board of Directors has determined that such transaction in arm's-length dealings complies with the foregoing provisions. If there are no Disinterested Directors or if Issuer or any Restricted Subsidiary enters into an unrelated third party, Affiliate Transaction (b) with respect to any transaction or a series of related transactions involving Affiliate Transactions) that involves an aggregate value in excess of $3 2.5 million, Issuer or such Restricted Subsidiary, as the Company delivers an Officers' Certificate case may be, shall, prior to the Trustee certifying that consummation thereof, obtain a favorable opinion as to the fairness of such transaction or series of related transactions complies with clause (a) above, and (c) with respect to any transaction or series of related transactions involving aggregate value in excess of $7 million, either (A) such transaction or series of related transactions has been approved by a majority of the Disinterested Directors of the Company, or in the event there is only one Disinterested Director, by such Disinterested Director, or (B) the Company delivers to the Trustee a written opinion of an investment banking firm of national standing or other recognized independent expert with experience appraising the terms and conditions of the type of transaction or series of related transactions for which an opinion is required stating that the transactions or series of related transactions is fair to the Company Issuer or such Subsidiary Restricted Subsidiary, as the case may be, from a financial point of view, from an Independent Financial Advisor and file the same with the Trustee; provided, however, that this provision no such opinion shall not apply to: be required for (ai) compensation and employee benefit arrangements with any officer, director Permitted Intercompany Loan or employee of the Company, including under any stock option or stock incentive plans, (ii) commercial transactions in the ordinary course of business; business and on reasonable and ordinary commercial terms exclusively between or among Issuer and/or one or more of its Subsidiaries.
(b) The restrictions set forth in clause (a) shall not apply to (i) reasonable fees and compensation paid to and indemnity provided on behalf of, officers, directors, employees or consultants of Issuer or any transaction solely Restricted Subsidiary as determined in good faith by Issuer's Board of Directors; (ii) transactions exclusively between or among the Company and/or Issuer and any of its Wholly Owned Restricted Subsidiaries or exclusively between or among such Wholly Owned Restricted Subsidiaries, if provided such transaction is transactions are not otherwise in compliance with the Indenture and is on fair and reasonable termsprohibited by this Indenture; (ciii) any transaction otherwise permitted by pursuant to an agreement in effect on the terms of Issue Date as in effect on the section of the Indenture described Issue Date or as thereafter amended in Section 1009; (d) the execution and delivery of or payments made under any tax sharing agreement between or among any of the Company and any Subsidiary; (e) licensing or sublicensing of use of any intellectual property by the Company or any Subsidiary to any Subsidiary of the Company; provided that the licensor shall continue to have access to such intellectual property a manner not less favorable to the extent necessary for the conduct of its respective business; (f) arrangements between the Company and any Subsidiary of the Company for the purpose of providing services or employees to such Subsidiary; (g) any transaction entered into for the purpose of granting or altering registration rights with respect to the Capital Stock of the CompanyHolders; and (hiv) Restricted Payments permitted by this Indenture, Permitted Investments and any transaction or series that is deemed not to be an Investment by reason of related transactions entered into prior to the date hereoflast sentence of the definition of "Investment."
Appears in 1 contract
Sources: Indenture (Decora Industries Inc)
Limitation on Transactions with Affiliates. (a) The Company will shall not, and will shall not permit any of its Restricted Subsidiaries to, directly or indirectly, enter into or permit to exist any transaction or series of related transactions (including, without limitation, the purchase, sale, purchase, lease or exchange or lease of assets, any property or servicesthe rendering of any service) with with, or for the benefit of, any of any its Affiliates (each, an "AFFILIATE TRANSACTION"), other than (x) Affiliate Transactions permitted under paragraph (b) below and (y) Affiliate Transactions on terms that are not less favorable than those that might reasonably have been obtained in a comparable transaction at such time on an arm's-length basis from a Person that is not an Affiliate of the Company or such Restricted Subsidiary. All Affiliate Transactions (other than the Company or a Wholly Owned Subsidiary) unless such transaction or and each series of related transactions is entered into Affiliate Transactions which are similar or part of a common plan) involving aggregate payments or other property with a fair market value in good faith and in writing and (a) such transaction or series excess of related transactions is on terms that are no less favorable to $500,000 shall be approved by the Board of Directors of the Company or such Restricted Subsidiary, as the case may be, than those that would be reasonably expected such approval to be available in evidenced by a comparable Board Resolution stating that such Board of Directors has determined that such transaction in arm's-length dealings complies with the foregoing provisions. If the Company or any Restricted Subsidiary of the Company enters into an unrelated third party, Affiliate Transaction (b) with respect to any transaction or a series of related transactions involving Affiliate Transactions related to a common plan) that involves an aggregate fair market value in excess of more than $3 million5,000,000, the Company delivers an Officers' Certificate or such Restricted Subsidiary, as the case may be, shall, prior to the Trustee certifying that consummation thereof, obtain a favorable opinion as to the fairness of such transaction or series of related transactions complies with clause (a) above, and (c) with respect to any transaction or series of related transactions involving aggregate value in excess of $7 million, either (A) such transaction or series of related transactions has been approved by a majority of the Disinterested Directors of the Company, or in the event there is only one Disinterested Director, by such Disinterested Director, or (B) the Company delivers to the Trustee a written opinion of an investment banking firm of national standing or other recognized independent expert with experience appraising the terms and conditions of the type of transaction or series of related transactions for which an opinion is required stating that the transactions or series of related transactions is fair to the Company or such Subsidiary the relevant Restricted Subsidiary, as the case may be, from a financial point of view; provided, however, that this provision from an Independent Financial Advisor and file the same with the Trustee.
(b) The restrictions set forth in paragraph (a) shall not apply to: to (ai) reasonable fees and compensation paid to and employee benefit arrangements with any officerindemnity provided on behalf of, director officers, directors or employee employees, agents or consultants of the Company or any Restricted Subsidiary of the Company as determined in good faith by the Company's Board of Directors or senior management; (ii) transactions exclusively between or among the Company and any of its Wholly-Owned Restricted Subsidiaries or exclusively between or among such Wholly-Owned Restricted Subsidiaries, provided such transactions are not otherwise prohibited by this Indenture; (iii) any agreement as in effect as of the Issue Date or any amendment thereto or any transaction contemplated thereby (including under pursuant to any amendment thereto) in any replacement agreement thereto so long as any such amendment or replacement agreement is not more disadvantageous to the Company or its Restricted Subsidiaries, as the case may be, in any material respect than the original agreement as in effect on the Issue Date; (iv) Restricted Payments permitted by the provisions of Section 4.10; (v) any issuance of securities or other payments, awards or grants in cash, securities or otherwise pursuant to, or the funding of, employment arrangements, stock option options and stock ownership plans of the Company entered into in the ordinary course of business and approved by the Board of Directors; (vi) fees and related expenses paid pursuant to the Management Agreement; (vii) loans and advances, or stock incentive plansguarantees of loans of third parties, to employees and officers of the Company and its Restricted Subsidiaries in the ordinary course of business for BONA FIDE business purposes not in excess of $2,000,000 at any time outstanding; (viii) indemnification agreements provided for the benefit of the Company or any Restricted Subsidiary of the Company from officers, directors or employees of the Company or any Restricted Subsidiary; (ix) all leases for equipment and real property used by the Company which are between the Company or any Restricted Subsidiary of the Company and either of ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇ ▇▇▇ or ▇▇▇▇▇▇ ▇▇▇, and any Affiliate thereof, (A) entered into in the ordinary course of business; (b) any transaction solely between or among , on terms no less favorable to the Company and/or any Subsidiaries, if such than could be obtained from a third party in an arm's-length transaction is otherwise in compliance with the Indenture and is on fair and reasonable terms; (c) any transaction otherwise permitted approved by the terms Board of Directors or (B) contained in agreements in existence as of the section of the Indenture described in Section 1009Issue Date; and (dx) the execution and delivery sale of or payments made under any tax sharing agreement between or among any inventory in the ordinary course of business on customary terms no less favorable to the Company and any Subsidiary; (e) licensing or sublicensing of use of any intellectual property by the Company or any Subsidiary to any Subsidiary of the Company; provided that the licensor shall continue to have access to such intellectual property to the extent necessary for the conduct of its respective business; (f) arrangements between the Company and any Subsidiary of the Company for the purpose of providing services or employees to such Subsidiary; (g) any transaction entered into for the purpose of granting or altering registration rights with respect to the Capital Stock of the Company; and (h) any transaction or series of related transactions entered into prior to the date hereofSubsidiaries than could be obtained from a third party in an arm's-length transaction.
Appears in 1 contract
Sources: Indenture (Aerosol Services Co Inc)
Limitation on Transactions with Affiliates. The Company will shall not, and will shall not permit any of its Subsidiaries Restricted Subsidiary to, directly or indirectly, following the Issue Date, enter into or permit to exist any transaction or series of related transactions (including, without limitation, the sale, purchase, exchange or lease of assets, property or services) with or for the benefit of any Affiliate of the Company (other than or any Significant Stockholder of the Company or a Wholly Owned Subsidiary(an "Affiliate Transaction") unless such transaction or series of related transactions is entered into in good faith and in writing and (a) such transaction or series of related transactions is on terms that are fair and reasonable to the Company or such Restricted Subsidiary and no less favorable to the Company or such Subsidiary, as the case may be, Restricted Subsidiary than those that would could be reasonably expected to be available obtained in a comparable arm's length transaction in arm's-length dealings with an unrelated third party, (b) with respect to any transaction entity that is not an Affiliate or series a Significant Stockholder of related transactions involving aggregate value the Company; provided that in excess of $3 million, the Company delivers an Officers' Certificate to the Trustee certifying that event such transaction or series of related transactions complies with clause (a) above, and (c) with respect to any transaction or series of related transactions involving involves aggregate value consideration in excess of $7 2 million, either the foregoing determination as to fairness shall be made by a majority of the Independent members of the Board of Directors of the Company as evidenced by a Board Resolution (Aand if there are no Independent directors (x) directors shall be deemed to be Independent if they are Independent with respect to the Affiliate Transaction under consideration and (y) each of the Company's officers who are also directors shall be considered Independent with respect to transactions to which the Company or a Restricted Subsidiary, on the one hand, and a Significant Stockholder or its Affiliate, on the other hand, are parties, unless such officer is an officer, director, employee, partner or stockholder of such Significant Stockholder or Affiliate, as the case may be); provided, further, that in the event such transaction or series of related transactions has been approved by a majority involves aggregate consideration in excess of $10 million, the Company shall, in addition to obtaining the approval of the Disinterested Directors Independent members of the Companyits Board of Directors, or in the event there is only one Disinterested Director, by such Disinterested Director, or (B) the Company delivers to the Trustee obtain a written opinion of an investment banking firm of national standing or other recognized independent expert with experience appraising the terms and conditions of the type of transaction or series of related transactions for which an opinion is required Independent Financial Advisor stating that the transactions or series terms of related transactions is such transaction are fair and reasonable to the Company or such Restricted Subsidiary from a financial point of view; provided, however, that this provision shall not apply to: the (ai) compensation reasonable and employee customary directors' fees, indemnification and similar arrangements and payments thereunder, (ii) transactions between or among or for the benefit arrangements with any officer, director or employee of the CompanyCompany and its Subsidiaries, including under which are not otherwise prohibited by this Indenture, (iii) any stock option employment agreement entered into by the Company or stock incentive plans, any of its Restricted Subsidiaries in the ordinary course of business; , (biv) any transaction solely between or among the Company and/or any Subsidiaries, if such transaction is otherwise in compliance with the Indenture and is on fair and reasonable terms; Restricted Payments (cother than Investments) any transaction otherwise permitted by the terms provisions 42 of the section Section 4.10, (v) provision of the Indenture described in Section 1009; (d) the execution and delivery of administrative or payments made under any tax sharing agreement between or among any of the Company and any Subsidiary; (e) licensing or sublicensing of use of any intellectual property management services by the Company or its Subsidiaries or any Subsidiary of their officers to any Subsidiary of their respective Subsidiaries in the ordinary course of business, and (vi) transactions contemplated by any agreement as in effect as of the Company; provided that the licensor shall continue to have access to Issue Date or any amendment thereto so long as any such intellectual property amendment is not disadvantageous to the extent necessary for Holders of the conduct of its respective business; (f) arrangements between Notes in any material respect and so long as the amounts paid by the Company and the Restricted Subsidiaries under any Subsidiary of such amended agreement do not exceed the amounts payable by the Company for and the purpose of providing services or employees to such Subsidiary; (g) any transaction entered into for Restricted Subsidiaries on the purpose of granting or altering registration rights with respect to the Capital Stock of the Company; and (h) any transaction or series of related transactions entered into prior to the date hereofIssue Date, in each case, shall not be deemed Affiliate Transactions.
Appears in 1 contract
Sources: Indenture (Tracor Inc /De)
Limitation on Transactions with Affiliates. (a) The Company will shall not, and will shall not permit any of its Subsidiaries to, directly or indirectly, enter into or permit to exist any transaction or series of related transactions (including, without limitation, the purchase, sale, purchase, lease or exchange or lease of assets, any property or servicesthe rendering of any service) with with, or for the benefit of, any of any its Affiliates (each, an “Affiliate of the Company (Transaction”), other than the Company or a Wholly Owned Subsidiary(x) unless such transaction or series of related transactions is entered into in good faith and in writing Affiliate Transactions permitted under paragraph (b) below and (ay) such transaction or series of related transactions is Affiliate Transactions on terms that are no less favorable than those that might reasonably be expected to have been obtained in a comparable transaction at such time on an arm’s-length basis from a Person that is not an Affiliate of the Company or such Subsidiary, if such a transaction were to be available to the Company or such Subsidiary. All Affiliate Transactions (and each series of related Affiliate Transactions which are similar or part of a common plan) involving aggregate payments or other property with a fair market value in excess of $1.0 million shall be approved by the Board of Directors of the Company or such Subsidiary, as the case may be, than those that would be reasonably expected such approval to be available in evidenced by a comparable Board Resolution stating that such Board of Directors has determined that such transaction in arm's-length dealings complies with the foregoing provisions. If the Company or any Subsidiary of the Company enters into an unrelated third party, Affiliate Transaction (b) with respect to any transaction or a series of related transactions involving Affiliate Transactions related to a common plan) that involves an aggregate fair market value in excess of more than $3 7.5 million, the Company delivers an Officers' Certificate or such Subsidiary, as the case may be, shall, prior to the Trustee certifying that consummation thereof, obtain a favorable opinion as to the fairness of such transaction or series of related transactions complies with clause (a) above, and (c) with respect to any transaction or series of related transactions involving aggregate value in excess of $7 million, either (A) such transaction or series of related transactions has been approved by a majority of the Disinterested Directors of the Company, or in the event there is only one Disinterested Director, by such Disinterested Director, or (B) the Company delivers to the Trustee a written opinion of an investment banking firm of national standing or other recognized independent expert with experience appraising the terms and conditions of the type of transaction or series of related transactions for which an opinion is required stating that the transactions or series of related transactions is fair to the Company or such Subsidiary the relevant Subsidiary, as the case may be, from a financial point of view; provided, however, that this provision from an Independent Financial Advisor and file the same with the Trustee.
(b) The restrictions set forth in clause (a) shall not apply to: to (ai) reasonable fees and compensation paid to and employee benefit arrangements with any officerindemnity provided on behalf of, director officers, directors, employees or employee consultants of the Company or any Subsidiary of the Company as determined in good faith by the Company, including under ’s Board of Directors or senior management; (ii) transactions exclusively between or among the Company and any stock option of its Subsidiaries or stock incentive plans, exclusively between or among such Subsidiaries; provided such transactions are not otherwise prohibited by this Indenture; (iii) payments of annual fees and reimbursement of reasonable expenses in accordance with the provisions of the Management Services Agreement; (iii) any employment agreement entered into in the ordinary course of business; , (biv) any transaction solely between or among payments pursuant to customary tax sharing agreements that do not exceed the Company and/or any Subsidiaries, if such transaction is amount otherwise in compliance with the Indenture and is on fair and reasonable terms; (c) any transaction otherwise permitted payable by the terms of the section of the Indenture described in Section 1009; (d) the execution and delivery of company or payments made under any tax sharing agreement between or among any of the Company and any Subsidiary; (e) licensing or sublicensing of use of any intellectual property by the Company or any Subsidiary to any Subsidiary of the Company; provided that the licensor shall continue to have access to such intellectual property to the extent necessary for the conduct of its respective business; (f) arrangements between the Company and any Subsidiary of the Company for the purpose of providing services or employees to such Subsidiary; (g) any transaction entered into for the purpose of granting or altering registration rights with respect to the Capital Stock of the Company; and (hv) any transaction or series of related transactions entered into prior to the date hereofRestricted Payments permitted by this Indenture and Permitted Investments.
Appears in 1 contract
Sources: Indenture (Leslies Poolmart Inc)
Limitation on Transactions with Affiliates. The Company will (a) Parent shall not, and will shall not permit any of its Subsidiaries Restricted Subsidiary to, directly or indirectly, in one transaction or a series of related transactions, Transfer any of its assets to, or purchase any assets from, or enter into any transaction contract, agreement, understanding, loan, advance or series of related transactions (includingguarantee with, without limitation, the sale, purchase, exchange or lease of assets, property or services) with or for the benefit of of, any Affiliate of Parent (an "Affiliate --------- Transaction"), unless the Company (other than the Company or a Wholly Owned Subsidiary) unless such transaction or series of related transactions is entered into in good faith and in writing and (a) such transaction or series of related transactions is on terms that thereof are no less favorable to the Company Parent or such Subsidiary, as the case may be, ----------- Restricted Subsidiary than those that would could be reasonably expected to be available in a comparable obtained at the time of such transaction in arm's-length dealings with a Person that is not such an unrelated third party, (b) Affiliate; provided that the Board of Directors must approve each Affiliate -------- Transaction that involves aggregate payments or other assets or services with respect to any transaction or series of related transactions involving aggregate value a Fair Market Value in excess of $3 5.0 million, which approval shall be evidenced by a board resolution that states that the Company delivers an Officers' Certificate to Board of Directors has determined that the Trustee certifying that such transaction or series of related transactions complies with clause (a) abovethe foregoing provisions; provided, and (c) further -------- ------- that if Parent or any Restricted Subsidiary enters into an Affiliate Transaction that involves aggregate payments or other assets or services with respect to any transaction or series of related transactions involving aggregate value a Fair Market Value in excess of $7 15.0 million, either (A) such transaction or series of related transactions has been approved by a majority of the Disinterested Directors of the Company, or in the event there is only one Disinterested Director, by such Disinterested Director, or (B) the Company delivers then prior to the Trustee consummation of such Affiliate Transaction, Parent must obtain a written favorable opinion of from an investment banking firm of national standing or other recognized independent expert with experience appraising the terms and conditions of the type of transaction or series of related transactions for which an opinion is required stating Independent Financial Advisor that the transactions or series of related transactions is fair it has determined such Affiliate Transaction to the Company or such Subsidiary be fair, from a financial point of view, to the Holders, and deliver such opinion to the Trustee.
(b) The provisions of clause (a) above shall not prohibit:
(1) transactions exclusively between or among (a) Parent and one or more Restricted Subsidiaries or (b) Restricted Subsidiaries; provided, howeverin -------- each case, that this provision shall not apply to: no Affiliate of Parent (aother than another Restricted Subsidiary) compensation owns Capital Stock in any such Restricted Subsidiary;
(2) customary director, officer and employee compensation (including bonuses) and other benefits (including retirement, health, stock option and other benefit arrangements plans) and indemnification arrangements, in each case approved by the Board of Directors;
(3) the entering into of a tax sharing agreement, or payments pursuant thereto, between Parent and/or one or more Subsidiaries, on the one hand, and any other Person with any officerwhich Parent or such Subsidiaries are required or permitted to file a consolidated tax return or with which Parent or such Subsidiaries are part of a consolidated group for tax purposes, director or employee on the other hand, which payments by Parent and the Restricted Subsidiaries are not in excess of the Companytax liabilities that would have been payable by them on a stand-alone basis;
(4) loans and advances permitted by clause (6) of the definition of "Permitted Investments";
(5) Restricted Payments of the type described in clause (i), including under (ii) or (iii) of the definition of "Restricted Payment" and which are made in accordance with Section 4.10;
(6) any stock option transaction with an Affiliate where the only consideration paid by Parent or stock incentive plansany Restricted Subsidiary is Qualified Stock;
(7) the provision of management, financial and operational services by Parent and its Subsidiaries to Affiliates of Parent in which Parent or any Restricted Subsidiary has an Investment and the payment of compensation for such services; provided that the Board of Directors has determined that the provision of such services is in the best interests of Parent and the Restricted Subsidiaries;
(8) transactions between Parent or any Subsidiary and any Securitization Entity in connection with a Qualified Securitization Transaction, in each case provided that such transactions are not otherwise prohibited by this Indenture;
(9) transactions with a Person that is an Affiliate solely because Parent or any Restricted Subsidiary owns Capital Stock in such Person; provided that no Affiliate of Parent (other than a Restricted Subsidiary) owns Capital Stock in such Person; or
(10) purchases and sales of raw materials or inventory in the ordinary course of business; (b) any transaction solely between or among the Company and/or any Subsidiaries, if such transaction is otherwise in compliance with the Indenture and is business on fair and reasonable market terms; (c) any transaction otherwise permitted by the terms of the section of the Indenture described in Section 1009; (d) the execution and delivery of or payments made under any tax sharing agreement between or among any of the Company and any Subsidiary; (e) licensing or sublicensing of use of any intellectual property by the Company or any Subsidiary to any Subsidiary of the Company; provided that the licensor shall continue to have access to such intellectual property to the extent necessary for the conduct of its respective business; (f) arrangements between the Company and any Subsidiary of the Company for the purpose of providing services or employees to such Subsidiary; (g) any transaction entered into for the purpose of granting or altering registration rights with respect to the Capital Stock of the Company; and (h) any transaction or series of related transactions entered into prior to the date hereof.
Appears in 1 contract
Sources: Indenture (Terra Industries Inc)
Limitation on Transactions with Affiliates. The Company Issuer shall not, and shall not permit any of its Restricted Subsidiaries to, directly or indirectly, enter into or permit to exist any transaction or series of related transactions (including, without limitation, the purchase, sale, lease or exchange of any property or the rendering of any service) with, or for the benefit of, any of its Affiliates (an "Affiliate Transaction"), other than (x) Affiliate Transactions permitted under the paragraph below and (y) Affiliate Transactions on terms that are no less favorable than those that might reasonably have been obtained in a comparable transaction at such time on an arm's-length basis from a Person that is not an Affiliate; provided, however, that for a transaction or series of related transactions with an aggregate value of $5 million or more (i) such determination shall be made in good faith by a majority of the disinterested members of the Board of the Directors of the Issuer or (ii) the Board of Directors of the Issuer shall have received an opinion from a nationally recognized investment banking firm that such Affiliate Transaction is on terms no less favorable than those that might reasonably have been obtained in a comparable transaction at such time on an arm's-length basis from a Person that is not an Affiliate; and provided, further, that for a transaction or series of related transactions with an aggregate value of $10 million or more, the Board of Directors of the Issuer shall have received an opinion from a nationally recognized investment banking firm that such Affiliate Transaction is on terms no less favorable than those that might reasonably have been obtained in a comparable transaction at such time on an arm's-length basis from a Person that is not an Affiliate. thereto or any transaction contemplated thereby (including pursuant to any amendment thereto) in any replacement agreement thereto so long as any such amendment or replacement agreement is not more disadvantageous to the Holders in any material respect than the original agreement as in effect on the Issue Date; (4) transactions between the Issuer or any Restricted Subsidiary of the Issuer, on the one hand, and Caterair or any Subsidiary of Caterair, on the other hand; and (5) Restricted Payments permitted by this Indenture. Caterair will not, and will not permit any of its Subsidiaries to, directly or indirectly, enter into or permit to exist any transaction or series of related transactions (including, without limitation, the purchase, sale, purchase, lease or exchange or lease of assets, any property or servicesthe rendering of any service) with with, or for the benefit of, any of any Affiliate of the Company (other than the Company or a Wholly Owned Subsidiary) unless such transaction or series of related transactions is entered into in good faith and in writing and (a) such transaction or series of related transactions is on terms that are no less favorable to the Company or such Subsidiary, as the case may be, than those that would be reasonably expected to be available in a comparable transaction in arm's-length dealings with an unrelated third party, (b) with respect to any transaction or series of related transactions involving aggregate value in excess of $3 million, the Company delivers an Officers' Certificate to the Trustee certifying that such transaction or series of related transactions complies with clause (a) above, and (c) with respect to any transaction or series of related transactions involving aggregate value in excess of $7 million, either (A) such transaction or series of related transactions has been approved by a majority of the Disinterested Directors of the Company, or its Affiliates. The restrictions set forth in the event there is only one Disinterested Director, by such Disinterested Director, or (B) the Company delivers to the Trustee a written opinion of an investment banking firm of national standing or other recognized independent expert with experience appraising the terms and conditions of the type of transaction or series of related transactions for which an opinion is required stating that the transactions or series of related transactions is fair to the Company or such Subsidiary from a financial point of view; provided, however, that this provision preceding paragraph shall not apply to: to (a1) compensation transactions between Caterair or any Subsidiary of Caterair, on the one hand, and employee benefit arrangements with the Issuer or any officer, director or employee Restricted Subsidiary of the CompanyIssuer, including under any stock option or stock incentive plans, in on the ordinary course of businessother hand; (b2) any transaction solely transactions between or among the Company and/or any Subsidiaries, if such transaction is otherwise in compliance with the Indenture and is on fair and reasonable terms; (c) any transaction otherwise permitted by the terms of the section of the Indenture described in Section 1009; (d) the execution and delivery of or payments made under any tax sharing agreement between or among any of the Company and any Subsidiary; (e) licensing or sublicensing of use of any intellectual property by the Company Caterair or any Subsidiary to any Subsidiary of Caterair, on the Company; provided that the licensor shall continue to have access to such intellectual property to the extent necessary for the conduct of its respective business; (f) arrangements between the Company one hand, and any Subsidiary of Caterair or other Person controlled (as such term is defined in the Company for definition of "Affiliate") by Caterair, on the purpose other hand, so long as no portion of providing services the remaining interest in such Subsidiary or employees to other Person is owned by a Person who controls (as such Subsidiaryterm is defined in the definition of "Affiliate") Caterair, or between or among such Subsidiaries and Persons, provided such transactions are not otherwise prohibited by this Indenture; (g3) reasonable fees and compensation paid to and indemnity provided on behalf of, officers, directors, employees or consultants of Caterair or any Subsidiary of Caterair as determined in good faith by Caterair's Board of Directors or senior management; (4) any agreement as in effect as of the Issue Date or any amendment thereto or any transaction entered into for the purpose of granting contemplated thereby (including pursuant to any amendment thereto) in any replacement agreement thereto so long as any such amendment or altering registration rights with respect replacement agreement is not more disadvantageous to the Capital Stock of Holders in any material respect than the Companyoriginal agreement as in effect on the Issue Date; and (h5) any transaction or series of related transactions entered into prior to the date hereofCaterair Restricted Payments permitted by this Indenture.
Appears in 1 contract
Limitation on Transactions with Affiliates. (a) The Company will not, and will not permit any of its Restricted Subsidiaries to, directly or indirectly, enter into any transaction or series of related transactions (including, without limitation, the purchase, sale, purchase, lease or exchange or lease of assets, any property or servicesthe rendering of any service) with with, or for the benefit of, any of any its Affiliates (each an “Affiliate Transaction”), unless:
(1) the terms of such Affiliate Transaction are no less favorable than those that could reasonably be expected to be obtained in a comparable transaction at such time on an arm’s-length basis from a Person that is not an Affiliate of the Company;
(2) in the event that such Affiliate Transaction involves aggregate payments, or transfers of property or services with a Fair Market Value in excess of $2.0 million, the terms of such Affiliate Transaction shall be approved by a majority of the members of the Board of Directors of the Company (including a majority of the disinterested members thereof), the approval to be evidenced by a Board Resolution stating that the Board of Directors has determined that such transaction complies with the preceding provisions; and
(3) in the event that such Affiliate Transaction involves aggregate payments, or transfers of property or services with a Fair Market Value, in excess of $5.0 million, the Company shall, prior to the consummation thereof, obtain a favorable opinion as to the fairness of such Affiliate Transaction to the Company and the relevant Restricted Subsidiary (if any) from a financial point of view from an Independent Financial Advisor and file the same with the Trustee.
(b) Section 3.16(a) above shall not apply to:
(1) transactions with or among the Company and/or its Restricted Subsidiaries;
(2) reasonable fees and compensation paid to (including issuances and grants of securities and stock options, employment agreements or arrangements, consulting, non-competition, confidentiality, indemnity or other than similar agreements, incentive compensation plans, benefit arrangements or plans, severance, or expense reimbursement arrangement for the benefit of), and any indemnity provided on behalf of, Officers, directors, employees, consultants or agents of the Company or a Wholly Owned Subsidiary) unless such transaction or series of related transactions is entered into any Restricted Subsidiary as determined in good faith and by the Company’s Board of Directors;
(3) any agreement as in writing and effect on the Issue Date or any amendments, renewals or extensions of any such agreement (a) so long as such transaction amendments, renewals or series of related transactions is on terms that extensions are no not less favorable to the Company or such Subsidiary, the Restricted Subsidiaries in any material respect as determined in good faith by the case may be, than those that would be reasonably expected to be available Board of Directors) and the transactions evidenced thereby; and
(4) any Restricted Payments made in a comparable transaction in arm's-length dealings compliance with an unrelated third party, Section 3.10.
(bc) with respect to any transaction or series of related transactions involving aggregate value in excess of $3 million, the Company delivers an Officers' Certificate to the Trustee certifying that such transaction or series of related transactions complies with clause (aNotwithstanding Section 3.16(b) above, payments pursuant to consulting or similar arrangements with a director of the Company or any of its Restricted Subsidiaries shall not exceed an aggregate of $250,000 per annum for any such director unless such payment (i) complies with Section 3.16(a)(1), and (cii) with respect to any transaction or series of related transactions involving aggregate value in excess of $7 million, either (A) such transaction or series of related transactions has been approved by a majority of the Disinterested Directors of the Company’s Board of Directors. Not later than the date of entering into any Affiliate Transaction, or in the event there is only one Disinterested Director, by such Disinterested Director, or (B) the Company delivers shall deliver to the Trustee a written opinion of an investment banking firm of national standing or other recognized independent expert Officers’ Certificate certifying that such Affiliate Transaction complies with experience appraising the terms and conditions of the type of transaction or series of related transactions for which an opinion is required stating that the transactions or series of related transactions is fair to the Company or such Subsidiary from a financial point of view; provided, however, that this provision shall not apply to: (aSection 3.16(a)(1) compensation and employee benefit arrangements with any officer, director or employee of the Company, including under any stock option or stock incentive plans, in the ordinary course of business; (b) any transaction solely between or among the Company and/or any Subsidiaries, if such transaction is otherwise in compliance with the Indenture and is on fair and reasonable terms; (c) any transaction otherwise permitted by the terms of the section of the Indenture described in Section 1009; (d) the execution and delivery of or payments made under any tax sharing agreement between or among any of the Company and any Subsidiary; (e) licensing or sublicensing of use of any intellectual property by the Company or any Subsidiary to any Subsidiary of the Company; provided that the licensor shall continue to have access to such intellectual property to the extent necessary for the conduct of its respective business; (f) arrangements between the Company and any Subsidiary of the Company for the purpose of providing services or employees to such Subsidiary; (g) any transaction entered into for the purpose of granting or altering registration rights with respect to the Capital Stock of the Company; and (h) any transaction or series of related transactions entered into prior to the date hereofabove.
Appears in 1 contract
Sources: Indenture (Coleman Cable, Inc.)
Limitation on Transactions with Affiliates. The Company will shall not, and will shall not permit any of its Subsidiaries to, directly or indirectly, enter into any contract, agreement, arrangement or transaction with any Affiliate (an "Affiliate Transaction") or any series of related Affiliate Transactions, unless such Affiliate Transaction is made in good faith, the terms of such Affiliate Transaction are fair and reasonable to the Company or such Subsidiary, as the case may be, and are on terms at least as favorable as the terms which could be obtained by the Company or such Subsidiary, as the case may be, in a comparable transaction made on an arm's-length basis with Persons who are not Affiliates; provided that the foregoing restrictions shall not apply to Exempted Affiliate Transactions. Without limiting the foregoing, any Affiliate Transaction or series of related transactions Affiliate Transactions (includingi) involving consideration to either party in excess of $2,000,000, without limitation, the sale, purchase, exchange or lease must be evidenced by a resolution of assets, property or services) with or for the benefit a committee of any Affiliate non-employee directors of the Company who are disinterested with respect to such transaction (other than an "Independent Committee"), set forth in an Officers' Certificate addressed and delivered to the Trustee, certifying that (a) the terms of such Affiliate Transaction are fair and reasonable to the Company or a Wholly Owned such Subsidiary) unless such transaction or series of related transactions is entered into in good faith , as the case may be, and in writing and (a) such transaction or series of related transactions is on terms that are no less favorable to the Company or such Subsidiary, as the case may be, than those that would be reasonably expected to be available could have been obtained in a comparable transaction in an arm's-length dealings transaction with an unrelated third party, a non-Affiliate and (b) with respect to any transaction or series of related transactions involving aggregate value in excess of $3 million, the Company delivers an Officers' Certificate to the Trustee certifying that such transaction or series of related transactions complies with clause (a) above, and (c) with respect to any transaction or series of related transactions involving aggregate value in excess of $7 million, either (A) such transaction or series of related transactions Affiliate Transaction has been approved by a majority of the Disinterested Directors members of an Independent Committee, and (ii) involving consideration to either party in excess of $5,000,000 must be evidenced by a resolution of an Independent Committee in accordance with the Companyforegoing clause (i) and, or in prior to the event there is only one Disinterested Directorconsummation thereof, by a written favorable opinion as to the fairness of such Disinterested Director, or (B) transaction to the Company delivers to or such Subsidiary, as the Trustee case may be, from a written opinion financial point of view from an independent investment banking firm of national standing or other recognized independent expert with experience appraising the terms and conditions of the type of transaction or series of related transactions for which an opinion is required stating that the transactions or series of related transactions is fair to the Company or such Subsidiary from a financial point of view; provided, however, that this provision shall not apply to: (a) compensation and employee benefit arrangements with any officer, director or employee of the Company, including under any stock option or stock incentive plans, in the ordinary course of business; (b) any transaction solely between or among the Company and/or any Subsidiaries, if such transaction is otherwise in compliance with the Indenture and is on fair and reasonable terms; (c) any transaction otherwise permitted by the terms of the section of the Indenture described in Section 1009; (d) the execution and delivery of or payments made under any tax sharing agreement between or among any of the Company and any Subsidiary; (e) licensing or sublicensing of use of any intellectual property by the Company or any Subsidiary to any Subsidiary of the Companyreputation; provided that the licensor foregoing restrictions shall continue not apply to have access to such intellectual property to the extent necessary for the conduct of its respective business; (f) arrangements between the Company and any Subsidiary of the Company for the purpose of providing services or employees to such Subsidiary; (g) any transaction entered into for the purpose of granting or altering registration rights with respect to the Capital Stock of the Company; and (h) any transaction or series of related transactions entered into prior to the date hereofExempted Affiliate Transactions.
Appears in 1 contract
Sources: Indenture (HPSC Inc)
Limitation on Transactions with Affiliates. (a) The Company will not, and will not cause or permit any of its Subsidiaries to, directly or indirectly, enter into any transaction or series of related transactions (including, without limitation, the purchase, sale, purchase, lease or exchange or lease of assets, any property or servicesthe rendering of any service or the lending of any funds) with or for the benefit of any of its Affiliates (each, an "Affiliate of the Company (Transac- tion"), other than the Company or a Wholly Owned Subsidiary) unless such transaction or series of related transactions is as are entered into and conducted in good faith and in writing and (a) such transaction or series of related transactions is which are on terms that are fair to the Company or such Subsidiary and no less favorable to the Company or such Subsidiary, as the case may be, Subsidiary than those that would be reasonably expected to be available could have been obtained in a comparable transaction in on an arm's-length dealings with basis from a Person that is not an unrelated third party, (b) with respect to any transaction Affiliate. All Affiliate Transactions or series of related transactions Affiliate Transactions involving aggregate payments or other market value in excess of $3 million1,000,000 must also be approved, prior to the consummation thereof, by a majority of the disinterested members of the Board of Directors of the Company delivers an Officers' Certificate to and evidenced by a Board Resolution of the Trustee certifying that Company (or, if there is only one disinterested director, it must be approved by such transaction member). Any Affiliate Transaction or series of related transactions complies with clause (a) above, and (c) with respect to any transaction or series of related transactions Affiliate Transactions involving aggregate payments or other market value in excess of $7 million, either (A) such transaction or series of related transactions has been approved by a majority of the Disinterested Directors of the Company2,500,000, or in as to which there are no disinterested directors, is also subject to the event there is only one Disinterested Director, by such Disinterested Director, or (B) further requirement that the Company delivers to the Trustee a written obtain an opinion of an investment banking firm of national standing or other recognized independent expert Independent Financial Advisor with experience in appraising the terms and conditions of the relevant type of transaction (or series of related transactions for which an opinion is required transactions) stating that the transactions transaction (or a series of related transactions transactions) is fair to the Company or such Subsidiary fair, from a financial point of view; provided, however, that this provision shall to the Company or such Subsidiary.
(b) The foregoing restrictions will not apply to: to (ai) transactions between the Company and any of its Wholly-Owned Subsidiaries or among its Wholly-Owned Subsidiaries; (ii) agreements in effect on the Issue Date and amendments or renewals thereof that are not more disadvantageous to the Holders in any material respect than the original agreements as in effect on the Issue Date; (iii) transactions permitted by, and complying with the provisions of Section 5.01; (iv) Restricted Payments made in accordance with Section 4.07; (v) reasonable and customary fees and compensation and employee benefit indemnification and similar arrangements with any officerofficers, director or employee directors and employees of the Company and any of its Subsidiaries and payments thereunder as determined in good faith by the Company's Board of Directors; and (vi) transactions with customers, including under any stock option clients, joint venture partners or stock incentive planspurchasers or sellers of goods or services, in each case, in the ordinary course of business; business (bincluding, without limitation, pursuant to joint venture agreements) any transaction solely between or among the Company and/or any Subsidiaries, if such transaction is and otherwise in compliance with the Indenture and is on fair and reasonable terms; (c) any transaction otherwise permitted by the terms of the section Indenture which are fair to the Company or its Subsidiaries, in the reasonable determination of the Indenture described in Section 1009; (d) the execution and delivery Board of or payments made under any tax sharing agreement between or among any Directors of the Company and any Subsidiary; (e) licensing or sublicensing of use of any intellectual property by the Company senior management thereof, or any Subsidiary to any Subsidiary of the Company; provided that the licensor shall continue to are on terms at least as favorable as might reasonably have access to been obtained at such intellectual property to the extent necessary for the conduct of its respective business; (f) arrangements between the Company and any Subsidiary of the Company for the purpose of providing services or employees to such Subsidiary; (g) any transaction entered into for the purpose of granting or altering registration rights with respect to the Capital Stock of the Company; and (h) any transaction or series of related transactions entered into prior to the date hereoftime from an unaffiliated party.
Appears in 1 contract
Sources: Indenture (D&f Industries Inc)
Limitation on Transactions with Affiliates. The Company will shall not, and will shall not permit any of its the Restricted Subsidiaries to, directly or indirectly, enter into or suffer to exist any transaction or series of related transactions (including, without limitation, the sale, purchase, exchange or lease of assets, property or services) with or for the benefit of any Affiliate of the Company (other than the Company or a Wholly Owned Restricted Subsidiary) unless such transaction or series of related transactions is entered into in good faith and in writing and (a) such transaction or series of related transactions is in writing and on terms that are no less favorable to the Company or such Restricted Subsidiary, as the case may be, than those that would be reasonably expected to be available in a comparable transaction in arm'sarm’s-length dealings with an unrelated third party, (b) with respect to any transaction or series of related transactions involving aggregate value payments in excess of $3 million25,000,000, the Company delivers an Officers' ’ Certificate to the Trustee certifying that such transaction or series of related transactions complies with clause (a) above, above and (c) with respect to any transaction or series of related transactions involving aggregate value in excess of $7 million, either (A) such transaction or series of related transactions has been approved by a majority of the Disinterested members of the Board of Directors of Parent or the CompanyCompany (and approved by a majority of Independent Directors or, or in the event there is only one Disinterested Independent Director, by such Disinterested Independent Director, or ) and (Bc) the Company delivers with respect to the Trustee a written opinion of an investment banking firm of national standing or other recognized independent expert with experience appraising the terms and conditions of the type of any transaction or series of related transactions for which involving aggregate payments in excess of $50,000,000, an opinion is required stating that the transactions or series of related transactions is fair to the Company or such Restricted Subsidiary from an independent investment banking, accounting or appraisal firm of nationally recognized standing that the terms of such transaction are not materially less favorable than those that might reasonably have been obtained in a financial point of view; providedcomparable transaction at such time on an arm’s-length basis from a Person that is not an Affiliate. Notwithstanding the foregoing, however, that this provision shall not apply to: to (aA) any transaction with an officer or director of the Company or Parent entered into in the ordinary course of business (including compensation and or employee benefit arrangements with any officer, officer or director or employee of the Company, including under any stock option or stock incentive plans, in the ordinary course of business; (b) any transaction solely between or among the Company and/or any Subsidiaries, if such transaction is otherwise in compliance with the Indenture and is on fair and reasonable terms; (c) any transaction otherwise permitted by the terms of the section of the Indenture described in Section 1009; (d) the execution and delivery of or payments made under any tax sharing agreement between or among any of the Company and any Subsidiary; or Parent), (e) licensing or sublicensing of use of any intellectual property by the Company or any Subsidiary to any Subsidiary of the Company; provided that the licensor shall continue to have access to such intellectual property to the extent necessary for the conduct of its respective business; (f) arrangements between the Company and any Subsidiary of the Company for the purpose of providing services or employees to such Subsidiary; (gB) any transaction entered into for by the purpose Company or one of granting or altering registration rights its Wholly Owned Restricted Subsidiaries with respect to the Capital Stock a Wholly Owned Restricted Subsidiary of the Company; , (C) transactions in existence on the Issue Date and (hD) any transaction or series of related transactions entered into prior to the date hereofRestricted Payment permitted by Section 1009.
Appears in 1 contract
Limitation on Transactions with Affiliates. The Company will (a) LNR shall not, and will shall not cause or permit any of its Subsidiaries to, directly or indirectly, enter into or permit to exist any transaction or series of related transactions (including, without limitation, the purchase, sale, purchase, lease or exchange or lease of assets, any property or servicesthe rendering of any service) with with, or for the benefit of, any of any its Affiliates (each an “Affiliate of the Company (Transaction”), other than the Company or a Wholly Owned Subsidiary(x) unless such transaction or series of related transactions is entered into in good faith and in writing Permitted Affiliate Transactions and (ay) such transaction or series of related transactions is Affiliate Transactions on terms that are no less favorable to LNR or such Subsidiary than those that might reasonably have been obtained or are obtainable in a comparable transaction at such time on an arm’s-length basis from a Person that is not an Affiliate of LNR or such Subsidiary. All Affiliate Transactions (and each series of related Affiliate Transactions which are similar or part of a common plan), other than Permitted Affiliate Transactions, involving aggregate payments or other property with a fair market value in excess of $5.0 million must be approved by the Company Board of Directors of LNR (or, in the case of transactions with Lennar Corporation, or any of its Subsidiaries, by a committee of the Board of Directors of LNR composed entirely of directors who are not officers or directors of Lennar Corporation, or any of its Subsidiaries,) or the Board of Directors of LNR’s Subsidiary, as the case may be. Such Board of Director’s approval is to be evidenced by a Board Resolution stating that such Board of Directors (including a majority of the directors who do not have any interest in the Affiliate Transaction) has determined that such transaction complies with the foregoing provisions. In addition, if LNR or any Subsidiary of LNR enters into an Affiliate Transaction (or a series of related Affiliate Transactions related to a common plan), other than Permitted Affiliate Transactions, involving aggregate payments or other property with a fair market value in excess of $7.5 million, LNR or such Subsidiary, as the case may be, than those shall, prior to the consummation of that would be reasonably expected to be available in a comparable transaction in arm's-length dealings with an unrelated third party, (b) with respect to any transaction or series of related transactions involving aggregate value in excess of $3 milliontransactions, the Company delivers an Officers' Certificate obtain a favorable opinion as to the Trustee certifying that fairness of such transaction or series of related transactions complies with clause (a) aboveto LNR or the relevant Subsidiary, and (c) with respect to any transaction or series of related transactions involving aggregate value in excess of $7 millionas the case may be, either (A) such transaction or series of related transactions has been approved by a majority of the Disinterested Directors of the Company, or in the event there is only one Disinterested Director, by such Disinterested Director, or (B) the Company delivers to the Trustee a written opinion of an investment banking firm of national standing or other recognized independent expert with experience appraising the terms and conditions of the type of transaction or series of related transactions for which an opinion is required stating that the transactions or series of related transactions is fair to the Company or such Subsidiary from a financial point of view; provided, howeverfrom an Independent Financial Advisor, except that a fairness opinion will not be required for Additional Partnership Transactions between LNR or any of LNR’s Subsidiaries and Lennar Corporation, or any of its Subsidiaries, that in the aggregate involve payments or other property with a fair market value of $50 million or less during the entire period that Notes are outstanding.
(b) The restrictions set forth in paragraph (a) of this provision Section 4.11 shall not apply to: to (a) compensation and employee benefit arrangements with any officer, director or employee each of the Companyfollowing actions set forth in clauses (i), including under (ii), (iii), (iv) and (v) being referred to as a “Permitted Affiliate Transaction”):
(i) reasonable fees and compensation paid to and indemnity provided on behalf of, officers, directors, employees, consultants or agents of LNR or any stock option Subsidiary of LNR as determined in good faith by LNR’s Board of Directors or stock incentive plans, in the ordinary course of business; senior management;
(bii) any transaction solely transactions between or among the Company and/or LNR and any Subsidiaries, if of its Wholly Owned Subsidiaries or between or among such transaction is Wholly Owned Subsidiaries provided such transactions are not otherwise in compliance with the Indenture and is on fair and reasonable terms; prohibited under this Indenture;
(ciii) any agreement as in effect as of the Base Date or any amendment thereto or any transaction otherwise contemplated thereby (including pursuant to any amendment thereto) or in any replacement agreement thereto so long as any such amendment or replacement agreement is not more disadvantageous to the Holders in any material respect than the original agreement as in effect on the Base Date;
(iv) Restricted Payments permitted by this Indenture; and
(v) transactions between or among LNR or any Subsidiaries of LNR and a Land Partnership, provided such transactions are permitted by and are effected in accordance with the terms of the section partnership agreement or other similar agreement, of such Land Partnership and the Indenture described By-laws of LNR, in Section 1009; each case, as in effect on the Issue Date, except that:
(d1) the execution and delivery of or payments made under if at any tax sharing agreement time when transactions between or among LNR or any of its Subsidiaries and NWHL Investment LLC (and its successors or assigns) are subject to the Company covenants regarding Affiliate Transactions, under the indenture dated July 2, 2003 relating to LNR’s 7.625% Senior Subordinated Notes due 2013, and are not excluded from those covenants as Permitted Affiliate Transactions, those transactions will not be excluded as Permitted Affiliate Transactions from the covenants in the Indenture, and
(2) if at any Subsidiary; (e) licensing time LNR makes payments to the holders of the 7.625% Senior Subordinated Notes due 2013 to induce them to consent to an amendment, waiver or sublicensing modification of use of any intellectual property by the Company indenture relating to the 7.625% Senior Subordinated Notes due 2013 that causes transactions between or among LNR or any Subsidiary of its Subsidiaries and NWHL Investment LLC (and its successors or assigns) to any Subsidiary be Permitted Affiliate Transactions under that indenture or otherwise not to be subject to the covenants in that indenture regarding Affiliate Transactions, LNR will make to holders of the Company; provided Notes the same payment per $1,000 principal amount of Notes that LNR makes per $1,000 principal amount of 7.625% Senior Subordinated Notes due 2013 to holders of the licensor shall continue to have access to such intellectual property 7.625% Senior Subordinated Notes due 2013 who consent to the extent necessary for the conduct of its respective business; (f) arrangements between the Company and any Subsidiary of the Company for the purpose of providing services amendment, waiver or employees to such Subsidiary; (g) any transaction entered into for the purpose of granting or altering registration rights with respect to the Capital Stock of the Company; and (h) any transaction or series of related transactions entered into prior to the date hereofmodification.
Appears in 1 contract
Sources: Indenture (LNR Property Corp)
Limitation on Transactions with Affiliates. (a) The Company will shall not, and will shall not cause or permit any of its Restricted Subsidiaries to, directly or indirectly, enter into or suffer to exist any transaction or series of related transactions (including, without limitation, the sale, purchase, exchange or lease of assets, property or services) with any Affiliate or for holder of 10% or more of the benefit Company's Common Stock (an "Affiliate Transaction") or extend, renew, waive or otherwise modify the terms of any Affiliate of Transaction entered into prior to the Issue Date unless (i) such Affiliate Transaction is between or among the Company and its Wholly-Owned Restricted Subsidiaries; or (other than ii) the Company or a Wholly Owned Subsidiary) unless terms of such transaction or series of related transactions Affiliate Transaction is entered into in good faith fair and in writing and (a) such transaction or series of related transactions is on terms that are no less favorable reasonable to the Company or such Restricted Subsidiaries, as the case may be, and the terms of such Affiliate Transaction are at least as favorable as the terms which could be obtained by the Company or such Restricted Subsidiary, as the case may be, than those that would be reasonably expected to be available in a comparable transaction in made on an arm's-length dealings with basis between unaffiliated parties. Any Affiliate Transaction involving an unrelated third party, (b) with respect to any transaction amount or series of related transactions involving aggregate having a value in excess of $3 million, the Company delivers an Officers' Certificate to the Trustee certifying that such transaction or series of related transactions complies with 1.0 million which is not permitted under clause (ai) above, and (c) with respect to any transaction or series of related transactions involving aggregate value in excess of $7 million, either (A) such transaction or series of related transactions has above shall have been approved by a majority of the Disinterested Directors Company's Board of Directors. In transactions with a value in excess of $5.0 million which are not permitted under clause (i) above, the Company must obtain a written opinion as to the fairness of such a transaction from an independent investment banking firm.
(b) The foregoing provisions will not apply to (i) any Restricted Payment that is not prohibited by the provisions described under Section 4.08 contained herein, (ii) payments to Lancer under the Tax Sharing Agreement, (iii) payments to participants in the Equity Participation Plan in an amount not exceeding $1.32 million in any fiscal year and $5.28 million in the aggregate, (iv) reasonable and customary regular fees to directors of the Company who are not employees of the Company, (v) loans or advances to officers of the Company and its Restricted Subsidiaries for bona fide business purposes of the Company in the event there is only one Disinterested Directorordinary course of business, (vi) royalty payments by such Disinterested Director, or (B) the Company delivers to T-H Licensing pursuant to that certain letter agreement dated as of December 29, 1989 between the Company and T-H Licensing (as such agreement may be amended from time to time pursuant to its terms), provided that any such payment (less any amounts permitted to be retained by T-H Licensing pursuant to the Trustee a written opinion of an investment banking firm of national standing or other recognized independent expert with experience appraising the terms and conditions of the type of transaction or series of related transactions for which an opinion Credit Agreement) is required stating that the transactions or series of related transactions is fair returned to the Company as a loan within sixty days after receipt of such payment by T-H Licensing, (vii) payments or such distributions to participants in the New Equity Incentive Plan pursuant to the terms thereof, and (viii) payments of the Company's allocated portion of the Lancer consolidated group's corporate expenses and fees to Lancer or any Affiliate of Lancer incurred in connection with Lancer's or any Affiliate of Lancer's performance of management consulting, monitoring and financial advisory services with respect to the Company and any Restricted Subsidiary from a financial point of viewin an amount not to exceed $2.0 million in any fiscal year excluding amounts paid prior to the Issue Date); provided, however, that notwithstanding anything to the contrary contained in this provision Indenture, the Company shall not apply to: (a) compensation and employee benefit arrangements with be permitted to pay to Lancer or any officer, director or employee Affiliate of Lancer any amount for such services in excess of the Company, including under any stock option or stock incentive plans, amount set forth in the ordinary course of business; this clause (b) any transaction solely between or among the Company and/or any Subsidiaries, if such transaction is otherwise in compliance with the Indenture and is on fair and reasonable terms; (c) any transaction otherwise permitted by the terms of the section of the Indenture described in Section 1009; (d) the execution and delivery of or payments made under any tax sharing agreement between or among any of the Company and any Subsidiary; (e) licensing or sublicensing of use of any intellectual property by the Company or any Subsidiary to any Subsidiary of the Company; provided that the licensor shall continue to have access to such intellectual property to the extent necessary for the conduct of its respective business; (f) arrangements between the Company and any Subsidiary of the Company for the purpose of providing services or employees to such Subsidiary; (g) any transaction entered into for the purpose of granting or altering registration rights with respect to the Capital Stock of the Company; and (h) any transaction or series of related transactions entered into prior to the date hereofviii).
Appears in 1 contract