Limitation on Transactions with Affiliates. 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 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 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 $3.0 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 $7.0 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 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: (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 Restricted Subsidiaries, if such transaction is otherwise in compliance with this Indenture and is on fair and reasonable terms; (c) any transaction otherwise permitted by the terms of the section of 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 Restricted Subsidiary; (e) licensing or sublicensing of use of any intellectual property by the Company or any Restricted Subsidiary to any Restricted 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 Restricted Subsidiary of the Company for the purpose of providing services or employees to such 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 (Concentric Network Corp)
Limitation on Transactions with Affiliates. The Company will (1) Holdings shall not, and will shall not permit any of its Restricted Subsidiaries 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 Holdings (other than the Company or a Wholly Owned Subsidiaryan "Affiliate Transaction") unless such transaction or series of related transactions Affiliate Transaction is entered into in good faith and in writing and on terms:
(a) such transaction or series of related transactions is on terms that are no less favorable to the Company Holdings 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 arms'-length dealings with a Person who is not such an unrelated third party, Affiliate;
(b) with respect to any transaction or series of related transactions involving that, in the event such Affiliate Transaction involves an aggregate value amount in excess of $3.0 million5,000,000:
(i) are set forth in writing, the Company delivers an Officers' Certificate to the Trustee certifying that such transaction or series of related transactions complies with clause and
(aii) above, and (c) with respect to any transaction or series of related transactions involving aggregate value in excess of $7.0 million, either (A) such transaction or series of related transactions has have been approved by a majority of the Disinterested Directors members of the CompanyBoard of Directors having no personal stake, other than as a holder of Capital Stock of Holdings or such Restricted Subsidiary, in such Affiliate Transaction; and
(c) that, in the event there is only one Disinterested Directorsuch Affiliate Transaction involves an amount in excess of $15,000,000, have been determined by such Disinterested Director, a nationally recognized appraisal 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 be fair, from a financial point standpoint, to Holdings and its Restricted Subsidiaries (the opinion of viewsuch nationally recognized appraisal or investment banking firm shall be delivered to the Trustee).
(2) The provisions of Section 4.07(1) shall not prohibit:
(a) any Restricted Payment permitted to be paid pursuant to Section 4.04;
(b) 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 stock ownership plans approved by the Board of Directors;
(c) the grant of stock options or similar rights to employees and directors of Holdings or the Company pursuant to plans approved by the Board of Directors;
(d) loans or advances to employees in the ordinary course of business in accordance with past practices of Holdings, but in any event not to exceed $10,000,000 in the aggregate outstanding at any one time;
(e) the payment of reasonable fees to directors of Holdings and its Subsidiaries who are not employees of Holdings or its Subsidiaries;
(f) any transaction between Holdings and a Restricted Subsidiary or between Restricted Subsidiaries;
(g) customary indemnification and insurance arrangements in favor of officers, directors, employees and consultants of Holdings or any of the Restricted Subsidiaries;
(h) payments by Holdings or any of its Restricted Subsidiaries to Fox ▇▇▇▇▇ and its Affiliates for any financial advisory, financing, underwriting or other placement services or in respect of other investment banking activities, including, without limitation, in connection with acquisitions or divestitures which payments are approved by a majority of the Board of Directors in good faith;
(i) the existence of, or the performance by Holdings or any of its Restricted Subsidiaries of the obligations under the terms of, any stockholders agreements (including any registration rights agreement or purchase agreement related thereto) to which it is a party as of the Closing Date, as such agreements may be amended from time to time pursuant to the terms thereof; 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 Restricted Subsidiaries, if such transaction is otherwise in compliance with this Indenture and is on fair and reasonable terms; (c) any transaction otherwise permitted by the terms of any such amendment are no less favorable to the section Holders than the terms of this Indenture described any such agreements in Section 1009; effect as of the Closing Date, and
(dj) the execution and delivery issuance of or payments made under any tax sharing agreement between or among any Capital Stock (other than Disqualified Stock) of the Company and any Restricted Subsidiary; (e) licensing or sublicensing of use of any intellectual property by the Company or any Restricted Subsidiary Holdings for cash to any Restricted 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 Restricted Subsidiary of the Company for the purpose of providing services or employees to such 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 hereofPermitted Holder.
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 conduct any business or indirectly, enter into any transaction (including the purchase, sale, lease or exchange of any property or the rendering of any service) 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 or any owner of five percent (5%) or more of any class of Capital Stock of the Company or with an Affiliate of any such owner (other than a Subsidiary of the Company or a Wholly Owned Subsidiaryany employee stock ownership plan for the benefit of the Company's or any of its Subsidiaries', directors, officers or employees) unless the terms of such business, transaction or series of related transactions is entered into are (i) set forth in good faith and in writing and writing, (aii) such transaction or series of related transactions is on terms and conditions that are no not materially less favorable to the Company or such Restricted Subsidiary, as the case may be, Subsidiary than those terms and conditions that would be reasonably expected to be available in obtainable at the time for a comparable transaction or series of similar transactions in arm's-length dealings with an unrelated third party, Person and (biii) with respect to if the amount involved in any transaction or series of related similar transactions involving aggregate value is in excess of $3.0 million, the Company delivers an Officers' Certificate to the Trustee certifying that such transaction 500,000 in any one instance 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 are in excess of $7.0 million1,000,000 in aggregate over any one-year period, either the disinterested members of the Board of Directors have, by a Board Resolution, determined in good faith that the criteria set forth in clause (Aii) such transaction are satisfied.
(b) The provisions of SECTION 4.6(a) shall not prohibit (i) any Restricted Payment permitted to be paid pursuant to SECTION 4.3, (ii) any issuance of securities, or series of related transactions has been other payments, awards or grants in cash, securities or otherwise pursuant to, or the funding of, employment arrangements, stock options, stock appreciation rights, stock ownership and similar benefit plans approved by a majority the Board of the Disinterested Directors of the CompanyDirectors, 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: (aiii) compensation and employee benefit arrangements with any officerarrangements, director or employee of the Company, including under any stock option or stock incentive plansand loans and advances to officers and employees, in the ordinary course of business; business based on past practice, (biv) the payment of reasonable fees and expenses to directors of the Company or its Subsidiaries who are not employees of the Company or its Subsidiaries, (v) any transaction solely between or among the Company and/or and a Wholly Owned Subsidiary of the Company or between Wholly Owned Subsidiaries of the Company, (vi) any Restricted Subsidiariespayments 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, if such transaction is otherwise in compliance with this Indenture and is on fair and reasonable terms; (cvii) any transaction otherwise permitted determined by a nationally recognized investment banking firm or a nationally recognized accounting firm to be reasonable or fair to the Company or any of its Subsidiaries which is a party thereto, (viii) any fees, expenses or indemnities payable by the Company to Windward Capital Management LLC pursuant to the terms of that certain letter agreement, dated as of June 30, 2000, between the Company and Windward Capital Management LLC, as in effect on the date hereof, (ix) any fees, expenses or indemnities payable by the Company to Windward Capital Management LLC pursuant to the terms of the section of this Indenture described in Section 1009; Management Agreement, (dx) the execution and delivery of or payments made under any tax sharing agreement between or among any of the Company and any Restricted Subsidiary; (e) licensing or sublicensing of use of any intellectual property provision by the Company or any of its Restricted Subsidiary to Subsidiaries of directors' and officers' insurance for the benefit of, or any indemnification by the Company or any of its Restricted Subsidiary Subsidiaries of, their respective directors and officers, (xi) any transactions, including without limitation indemnification in the event of a Registration (as defined therein), contemplated by the Shareholders Agreement, (xii) any amendment, modification, extension or renewal of any of the Companyforegoing arrangements; provided that the licensor shall continue provisions of any such amendment, modification, extension or renewal are (1) approved by the disinterested members of the Board of Directors or (2) determined by a nationally recognized investment banking firm or a nationally recognized accounting firm to have access be reasonable or fair to such intellectual property the Company or any of its Subsidiaries which is a party thereto, (xiii) any employment agreement, proprietary or confidentiality agreement or non-competition agreement entered into with any employee or officer, in the ordinary course of business consistent with past practice or as otherwise approved by the Board of Directors, (xiv) to the extent necessary for not included in the conduct foregoing, any transactions contemplated by the 2000 Stock Option Plan, (xv) the New Transaction, and (xvi) the payment of its respective business; (f) arrangements between a fund-raising fee to the Company Windward Group in connection with the Raven Acquisition in the amount not in excess of $900,000 and any Restricted Subsidiary reimbursement of expenses of the Company for the purpose of providing services or employees to such 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 hereofWindward Group in connection therewith.
Appears in 1 contract
Sources: Subordinated Note Agreement (Mobile Services Group Inc)
Limitation on Transactions with Affiliates. (a) The Company will shall not, and will shall not permit any of its Restricted Subsidiaries Subsidiary to, directly or indirectlyand each Restricted Entity shall not, enter into or permit to exist any transaction (including the purchase, sale, lease or series exchange of any property, employee compensation arrangements or the rendering of any service) with, or for the benefit of, any Affiliate of the Company (an "Affiliate Transaction") involving (together with any related Affiliate Transactions) aggregate consideration in excess of $10 million, unless:
(1) the terms of the Affiliate Transaction are not materially less favorable taken as a whole to the Company or such Restricted Entity than those that could be obtained at the time of the Affiliate Transaction in arm's-length dealings with a Person who is not an Affiliate; and
(2) if such Affiliate Transaction (together with any related Affiliate Transactions) involves an amount in excess of $15.0 million, the terms of the Affiliate Transaction are set forth in writing and a majority of the non-employee directors of the General Partner disinterested with respect to such Affiliate Transaction have determined in good faith that the criteria set forth in clause (1) are satisfied and have approved the relevant Affiliate Transaction.
(b) The provisions of the preceding paragraph (a) shall not prohibit:
(1) Restricted Payments, in each case permitted to be made pursuant to Section 4.08, and Permitted Investments;
(2) 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 stock ownership plans approved by the Board of Directors of the Company;
(3) loans or advances to employees in the ordinary course of business in accordance with the past practices of the Company or the Restricted Entities, but in any event not to exceed $2.5 million in the aggregate outstanding at any one time;
(4) the payment of reasonable and customary fees to, and indemnity provided on behalf of, officers, directors, employees or consultants of the Company or the Restricted Entities;
(5) transactions between or among the Company and the Restricted Entities;
(6) the issuance or sale of any Capital Stock (other than Disqualified Stock) of the Company and the granting and the performance of registration rights;
(7) any agreement as 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 amendment, modification, supplement, extension or renewal is not materially less favorable, taken as a whole, to the Company and the Restricted Entities) and the transactions evidenced or contemplated thereby or as these agreements may be extended or renewed in accordance with this clause (7);
(8) 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 Company and the Restricted Entities, in the reasonable determination of the Board of Directors of the General Partner or the senior management of the Company, or are on terms at least as favorable as might reasonably have been obtained at such time from an unaffiliated party;
(9) the entering into agreements with equity holders of the Company or the General Partner in connection with a Parent Roll-up Transaction relating to such equity, including, without limitation, the sale, purchase, exchange entering into and performance of shareholder agreements and registration rights agreements and amendments to existing similar agreements; and
(10) Affiliate Transactions with a person solely in its capacity as a holder of debt 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 equity securities where such Person is treated no more favorably 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 than any other security holders who 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 $3.0 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 $7.0 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 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: (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 Restricted Subsidiaries, if such transaction is otherwise in compliance with this Indenture and is on fair and reasonable terms; (c) any transaction otherwise permitted by the terms of the section of 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 Restricted Subsidiary; (e) licensing or sublicensing of use of any intellectual property by the Company or any Restricted Subsidiary to any Restricted 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 Restricted Subsidiary of the Company for the purpose of providing services or employees to such 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 hereofAffiliates.
Appears in 1 contract
Sources: Indenture (Harbinger Capital Partners Master Fund I, Ltd.)
Limitation on Transactions with Affiliates. 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 involving aggregate consideration equal to or greater than $60,000 (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 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 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 between the Company (or its Subsidiary) and unaffiliated party in an arm's-length dealings with an unrelated third party, transaction and (b) with respect to any transaction or series of related transactions involving aggregate value in excess of $3.0 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 $7.0 million, either (A) such transaction or series of related transactions has been is approved by a majority of the Disinterested Directors Members of the Company, or in Board of Directors; provided that the event there is only one Disinterested Director, by such Disinterested Director, or foregoing restriction shall not apply to (B1) the Company delivers payment of reasonable and customary regular fees 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 directors of the type Company who are not employees 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 any of view; providedits Subsidiaries, however(2) indebtedness of or monies owed for customary compensation to, that this provision shall not apply to: (a) compensation officers, directors and employee benefit arrangements with any officer, director or employee employees of the CompanyCompany or its Subsidiaries, including under made in the ordinary course of business, (3) transactions between or among the Company or any stock option of its wholly owned Subsidiaries, (4) the payment of dividends in respect of the Capital Stock of the Company or stock incentive plansany of its Subsidiaries, (5) the payment of indebtedness of or monies owed by the Company or any of its Subsidiaries for goods or materials purchased, or services received, in the ordinary course of business; business or (b) any transaction solely between or among the Company and/or any Restricted Subsidiaries, if such transaction is otherwise in compliance with this Indenture and is on fair and reasonable terms; (c) any transaction otherwise permitted by the terms of the section of this Indenture described in Section 1009; (d6) the execution and delivery payment of indebtedness of or payments made under any tax sharing agreement between or among any of the Company and any Restricted Subsidiary; (e) licensing or sublicensing of use of any intellectual property monies owed by the Company or any Restricted Subsidiary of its Subsidiaries for fees to be paid to the Purchaser or any Restricted Subsidiary Affiliate of the Company; provided that the licensor shall continue to have access to such intellectual property Purchaser pursuant to the extent necessary for Letter Agreement or any other written agreement in existence on the conduct of its respective business; (f) arrangements between the Company and any Restricted Subsidiary of the Company for the purpose of providing services or employees to such 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 hereofClosing Date.
Appears in 1 contract
Sources: Securities Purchase Agreement (Queen Sand Resources 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, purchaselease, contribution or exchange or lease of assets, any property or servicesthe rendering of any service) with or for the benefit of any Affiliate of its Affiliates (other than transactions between the Company and a Restricted Subsidiary of the Company or among Restricted Subsidiaries of the Company) (an “Affiliate Transaction”), 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 Affiliate Transactions on terms that are no less favorable than those that might reasonably have been obtained in a comparable transaction 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 involving value of $5,000,000 or more, such determination shall be made in good faith by a majority of members of the Board of Directors of the Company and by a majority of the disinterested members of the Board of Directors of the Company, if any; provided, further, that for a transaction or series of related transactions involving value of $15,000,000 or more, the Board of Directors of the Company has received an opinion from an independent investment banking firm of nationally recognized standing that such Affiliate Transaction is fair, from a financial point of view, to the Company or such Restricted Subsidiary. The foregoing restrictions shall not apply to:
(1) directors’ fees, as indemnification and similar arrangements approved in good faith by the case may beCompany’s Board of Directors and payments thereunder;
(2) any obligations of the Company under any employment agreement, than those that would be reasonably expected non-competition or confidentiality agreement or other similar agreement with any officer or employee of the Company who is an Affiliate and any payment thereunder;
(3) Permitted Investments and any Restricted Payment permitted to be available made pursuant Section 4.09;
(4) any issuance of securities, or other payments, awards or grants in a comparable transaction in arm's-length dealings with an unrelated third partycash, (b) with respect to any transaction securities or series of related transactions involving aggregate value in excess of $3.0 millionotherwise pursuant to, or the Company delivers an Officers' Certificate to the Trustee certifying that such transaction or series of related transactions complies with clause (a) abovefunding of, employment arrangements, stock options and (c) with respect to any transaction or series of related transactions involving aggregate value in excess of $7.0 million, either (A) such transaction or series of related transactions has been stock ownership plans approved by a majority the Board of the Disinterested Directors of the Company, ;
(5) loans or in the event there is only one Disinterested Director, by such Disinterested Director, or (B) the Company delivers advances 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: (a) compensation and employee benefit arrangements with any officer, director or employee of the Company, including under any stock option or stock incentive plans, employees in the ordinary course of business; (b) any transaction solely between or among the Company and/or any Restricted Subsidiaries, if such transaction is otherwise in compliance with this Indenture and is on fair and reasonable terms; (c) any transaction otherwise permitted by the terms business of the section of 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 Restricted Subsidiary; (e) licensing or sublicensing of use of any intellectual property by the Company or any of its Restricted Subsidiary Subsidiaries consistent with past practices;
(6) contributions to any Restricted Subsidiary the capital 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; ;
(f7) arrangements between any transaction with a joint venture or similar entity which would constitute an Affiliate Transaction solely because the Company and any or a Restricted Subsidiary of the Company for the purpose of providing services owns, directly or employees to indirectly, an equity interest in or otherwise controls such Restricted Subsidiary, joint venture or similar entity; and
(g) any transaction entered into for 8) the purpose Transaction, including the payment of granting or altering registration rights with respect to the Capital Stock of the Company; fees and (h) any transaction or series of expenses related transactions entered into prior to the date hereofthereto.
Appears in 1 contract
Sources: Indenture (Lin Tv Corp.)
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 into, renew or extend any transaction or series of related transactions (includingincluding the purchase, without limitation, the sale, purchase, lease or exchange of property or lease of assets, property or servicesthe rendering of any service) with or for the benefit of any Affiliate of the Company (other than the Company Parent or a Wholly Owned Subsidiary) unless such transaction or series any of related transactions is entered into its Restricted Subsidiaries, 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 each 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 consideration in excess of $3.0 2.5 million, except upon terms that are not materially less favorable to Parent or such Restricted Subsidiary than could be obtained, at the Company delivers an Officers' Certificate time of such transaction or, if such transaction is pursuant to a written agreement, at the time of the execution of the agreement providing therefor, in a comparable arm’s length transaction (to the Trustee certifying extent there is such a transaction) with a Person that is not such transaction or series of related transactions complies with clause an Affiliate.
(ab) aboveThe limitation set forth in Section 10.12(a) does not limit, and shall not apply to:
(c1) with respect to any transaction or series of related transactions involving aggregate value in excess of $7.0 million, either (A) such transaction or series of related transactions has been approved by a majority of the Disinterested disinterested directors of the Board of Directors of the Company, or in the event there is only one Disinterested Director, by such Disinterested Director, Parent or (B) the Company for which Parent or any Restricted Subsidiary of Parent delivers to the Trustee a written opinion of an a nationally recognized investment banking banking, appraisal or accounting 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 transaction 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 or employee of the Company, including under any stock option or stock incentive plans, in the ordinary course of business; (b2) any transaction solely between or among the Company and/or Parent and any of its Restricted Subsidiaries, if such transaction is otherwise in compliance with this Indenture and is on fair and reasonable terms; (c) any transaction otherwise permitted by the terms of the section of this Indenture described in Section 1009; (d) the execution and delivery of Subsidiaries or payments made under any tax sharing agreement solely between or among Restricted Subsidiaries of Parent (in each case, including any entity that becomes (including by redesignation) a Restricted Subsidiary of Parent as a result of such transaction);
(3) the Company payment of reasonable fees and any Restricted Subsidiary; (e) licensing compensation to, and indemnification, reimbursement of expenses and similar arrangements on behalf of, current, former or sublicensing future directors of use of any intellectual property by the Company Parent or any Restricted Subsidiary of Parent;
(4) the issuance or sale of Capital Stock (other than Disqualified Stock) of Parent or the Partnership;
(5) any Restricted Payments not prohibited by Section 10.9;
(6) any contracts, instruments or other agreements or arrangements in each case as in effect on the Closing Date, and any transactions pursuant thereto or contemplated thereby, or any amendment, modification or supplement thereto or any replacement thereof entered into from time to time, as long as such agreement or arrangements as so amended, modified, supplemented or replaced, taken as a whole, is not materially more disadvantageous to Parent and its Restricted Subsidiaries at the time executed than the original agreement or arrangements as in effect on the Closing Date;
(7) any employment, consulting, service or termination agreement, or customary indemnification arrangements, entered into by Parent or any Restricted Subsidiary of Parent with current, former or future directors, officers and employees of Parent or such Restricted Subsidiary and the Company; provided that payment of compensation and reimbursement of expenses and the licensor shall continue to have access providing of other benefits (including retirement, health, disability, option, deferred compensation, insurance and other employment benefits) to such intellectual property to the extent necessary for the conduct directors, officers and employees of its respective business; (f) arrangements between the Company and Parent or any Restricted Subsidiary of Parent (including amounts paid pursuant to employee benefit plans, employee stock option or similar plans and including issuances of Capital Stock or other securities, loans or other payments, grants and awards), in each case in the Company ordinary course of business;
(8) loans and advances to officers and employees of Parent or any Restricted Subsidiary of Parent or guarantees in respect thereof (or cancellation of such loans, advances or guarantees), for bona fide business purposes, including for reasonable moving and relocation, entertainment and travel expenses and similar expenses, made in the purpose ordinary course of providing services business;
(9) transactions with a Person that is an Affiliate of Parent solely because Parent, directly or employees to indirectly, owns Capital Stock of, or controls such Restricted Subsidiary; Person;
(g10) any transaction entered into for with a Person who is not an Affiliate immediately before the purpose consummation of granting such transaction that becomes an Affiliate as a result of such transaction;
(11) payments to an Affiliate in respect of the Notes or altering registration rights with any other Indebtedness of the Issuers or any Restricted Subsidiary on the same basis as concurrent payments made or offered to be made in respect thereof to non-Affiliates, any contribution to the capital of Parent or its Restricted Subsidiaries and the issuance of Capital Stock of Parent or its Restricted Subsidiaries and the Company; granting of registration and other customary rights in connection therewith;
(12) any transactions (a) pursuant to the Transactions or the Spin-Off Agreements, and any actions pursuant thereto or contemplated thereby, (b) with Ensign or any of its Affiliates pursuant to the contracts or agreements described in the Prospectus Supplement, via incorporation by reference or otherwise, or (c) in the case of each of clauses (a) and (hb), any amendment, modification, or 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 Parent and its Restricted Subsidiaries than the original agreement or arrangement in existence on the Closing Date;
(13) the entering into or amending of any tax sharing, allocation or similar agreement between Parent and the Partnership and any payments thereunder;
(14) transactions between Parent or any of its Restricted Subsidiaries and any Person that would constitute an Affiliate Transaction solely because a director of such Person is also a director of Parent or any of its Restricted Subsidiaries or any direct or indirect parent of Parent; provided, however, that such director abstains from voting as a director of Parent or such Restricted Subsidiary or such direct or indirect parent, as the case may be, on any matter involving such other Person;
(15) transactions with joint ventures and Subsidiaries thereof and Unrestricted Subsidiaries relating to the provision of management services, overhead or similar services or transactions that are approved by a majority of the disinterested members of Parent’s Board of Directors (a director shall be disinterested if he or she has no interest in such joint venture or Unrestricted Subsidiary other than through Parent and its Restricted Subsidiaries); provided that no Affiliate of Parent (other than Parent’s Restricted Subsidiaries) has an interest (other than indirectly through Parent and other than such joint venture or Unrestricted Subsidiary) in any such joint venture or Unrestricted Subsidiary;
(16) any transaction with a joint venture, partnership, limited liability company or other entity that would constitute an Affiliate Transaction solely because Partnership or a Restricted Subsidiary owns an equity interest in such joint venture, partnership, limited liability company or other entity; and
(17) pledges of Capital Stock of Unrestricted Subsidiaries.
(c) Notwithstanding Sections 10.12(a) and 10.12(b), any transaction or series of related transactions entered into prior covered by Section 10.12(a) and not covered by clauses (2) through (17) of Section 10.12(b), the aggregate amount of which exceeds $10.0 million of consideration, shall be approved or determined to be fair in the date hereofmanner provided for in Section 10.12(b)(1)(A) or (B).
Appears in 1 contract
Sources: First Supplemental Indenture (CareTrust REIT, Inc.)
Limitation on Transactions with Affiliates. (a) The Company will shall not, and will shall not permit any of its Restricted Subsidiaries (other than any Non-Recourse Subsidiary) to, directly conduct any business or indirectly, enter into any transaction or series of related similar 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 involving aggregate payments or consideration in excess of $10.0 million, unless:
(other than i) the Company or a Wholly Owned Subsidiary) unless terms of such business, 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 not materially less favorable when taken as a whole to the Company or such Restricted Subsidiary, Subsidiary as the case may be, than those terms that would be reasonably expected to be available in obtainable at the time for a comparable transaction or series of similar transactions in arm'sarm’s-length dealings with an unrelated third partyPerson and
(ii) to the extent that such business, (b) with respect to any transaction or series of related transactions (other than Debt Issued by the Company which is permitted under Section 4.09 hereof) is known by the Board of Directors of the Company to involve an Affiliate of the Company, other than any purchase or sale of inventory in the ordinary course of business (an “Inventory Transaction”), involving aggregate value payments or other consideration in excess of $3.0 20.0 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 $7.0 million, either (A) such transaction or series of related transactions has been approved (and the value of any noncash consideration has been determined) by a majority all of the Disinterested independent members of the Board of Directors of the Company, or in the event there is only one Disinterested Director, by such Disinterested Director, or (B) Company and the Company delivers to the Trustee an Officer’s Certificate evidencing such approval (provided that if no member of the Board of Directors of the Company is independent, the Company may deliver to the Trustee a written opinion of an letter from a nationally recognized 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 financial terms of such transaction are fair to the Company from a financial point of view or meets the requirements of Section 4.11(a)(i) hereof).
(b) Section 4.11(a) hereof shall not prohibit the following:
(i) any Restricted Payment permitted to be paid pursuant to Section 4.07 hereof or the definition of “Permitted Investment”;
(ii) any transaction among the Company, any of its Subsidiaries or any Guarantors or any other entity (other than any such other entity that was an Affiliate of the Company prior to such transaction) that becomes a Subsidiary or a Guarantor as part of such transaction;
(iii) any transaction among Subsidiaries of the Company or the Guarantors or any other entity (other than any such other entity that was an Affiliate of the Company prior to such transaction) that becomes a Subsidiary or a Guarantor as part of such transaction;
(iv) any transaction between the Company or a Subsidiary of the Company and its own employee stock ownership plan and the issuance or transfer of Capital Stock (other than Redeemable Stock) of the Company to any Permitted Holder or to any director, manager, officer, employee or consultant of the Company, its Subsidiaries or any direct or indirect parent company thereof (or their estates, spouses or former spouses);
(v) any transaction with an officer, director, manager, employee or consultant of the Company, of its Parent or of any Subsidiary of the Company (including compensation or employee benefit arrangements with any such officer, director, manager, employee or consultant);
(vi) any business or transaction with a Qualified Joint Venture;
(vii) any transaction which is a Permitted Transaction;
(viii) any transaction pursuant to which a Parent or any Affiliate of the Company will provide the Company and its Subsidiaries at their request and at the cost to such Parent or Affiliate with certain allocated services, including services to be purchased from third party providers, such as legal and accounting services, tax, consulting, financial advisory, corporate governance, insurance coverage and other services;
(ix) payments by the Company or a Subsidiary of the Company to a Parent or any Affiliate of the Company for any financial advisory, financing, underwriting or placement services or in respect of other investment banking activities, including in connection with acquisitions or divestitures, which payments are approved by a majority of the members of the Board of Directors of the Company in good faith;
(x) any merger, consolidation or reorganization of the Company with an Affiliate of the Company solely for the purpose of (a) reorganizing to facilitate an initial public offering of securities of the Company or a direct or indirect parent of the Company, (b) forming or collapsing a holding company structure or (c) reincorporating the Company in a new jurisdiction;
(xi) transactions in which the Company or series any Subsidiary of related transactions the Company (other than a Non-Recourse Subsidiary), as the case may be, delivers to the Trustee a letter from a nationally recognized investment banking firm stating that such transaction is fair to the Company or such Restricted Subsidiary from a financial point of view; providedview or meets the requirements of Section 4.11(a)(i) hereof;
(xii) transactions with customers, howeverclients, that this provision shall not apply to: (a) compensation and employee benefit arrangements with any officersuppliers, director or employee purchasers or sellers of the Companygoods or services, including under any stock option or stock incentive plans, in each case in the ordinary course of business; (b) any transaction solely between or among the Company and/or any Restricted Subsidiaries, if such transaction is business and otherwise in compliance with the terms of this Indenture that are fair to the Company and the Subsidiaries of the Company (other than Non-Recourse Subsidiaries), in the good faith determination of the Board of Directors or the senior management of the Company, or are on terms at least as favorable as might reasonably have been obtained at such time from an unaffiliated party;
(xiii) the Transactions and the payment of all premiums, fees, expenses and other amounts related to the Transactions;
(xiv) investments by a Parent or any Affiliate of the Company in securities of the Company or any of its Subsidiaries (other than Non-Recourse Subsidiaries) so long as (i) the investment is being offered generally to other investors on fair the same or more favorable terms and reasonable terms; (cii) the investment to be held by such Parent or Affiliate constitutes less than 5.0% of the proposed or outstanding issue amount of such class of securities;
(xv) sales or repurchases of accounts receivable, payment intangibles and related assets or participations therein, in connection with, or any other transactions relating to, any Receivables Facility;
(xvi) any transaction otherwise permitted by with an Affiliate in which the terms of the section of 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 Restricted Subsidiary; (e) licensing or sublicensing of use of any intellectual property consideration paid by the Company or any Restricted Subsidiary to any Restricted 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 Restricted Subsidiary of the Company for the purpose (other than a Non-Recourse Subsidiary) consists only of providing services or employees to such Restricted Subsidiary; (g) any transaction entered into for the purpose of granting or altering registration rights with respect to the Capital Stock of the CompanyCompany (other than Redeemable Stock or Exchangeable Stock); and and
(hxvii) any transaction contemplated by Section 4.07(b)(viii) hereof or series of related transactions entered into prior to the date Section 4.07(b)(xiv) hereof.
Appears in 1 contract
Limitation on Transactions with Affiliates. (a) The Company will not, and nor will not it permit any of its Restricted 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 or for the benefit of any Affiliate of the Company 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 on terms that are no less favorable to the Company or such Restricted Subsidiary, as the case may be, than those that would could reasonably be reasonably expected to be available obtainable at such time in a comparable transaction in arm's-length dealings with an unrelated third party, and (bii) the Company delivers to the Trustee (A) with respect to any transaction or series of related transactions involving aggregate value payments in excess of $3.0 million250,000, 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 $7.0 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 Company, or in the event there is only one Disinterested Director, by such Disinterested Director, or and (B) with respect to any transaction or series of transactions involving aggregate payments in excess of $5.0 million, an opinion as to the fairness of the transaction to the Company delivers to the Trustee from a written opinion financial point of view issued by an accounting, appraisal or investment banking firm of national standing or other recognized independent expert with experience appraising standing.
(b) Notwithstanding the terms and conditions foregoing, the provisions 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 clause (a) above do not apply to: :
(ai) employment agreements or compensation and or employee benefit arrangements with any officer, director or employee of the Company, including under Company or any stock option or stock incentive plans, of its Restricted Subsidiaries entered into in the ordinary course of business; business (b) any transaction solely between including customary benefits thereunder and including reimbursement or among the Company and/or any Restricted Subsidiariesadvancement of out-of-pocket expenses, if such transaction is otherwise in compliance with this Indenture and is on fair director's and reasonable terms; officer's liability insurance);
(c) any transaction otherwise permitted by the terms of the section of 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 Restricted Subsidiary; (e) licensing or sublicensing of use of any intellectual property by the Company or any Restricted Subsidiary to any Restricted 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 Restricted Subsidiary of the Company for the purpose of providing services or employees to such Restricted Subsidiary; (gii) any transaction entered into by or among the Company or one of its Restricted Subsidiaries with one or more Restricted Subsidiaries of the Company;
(iii) any transaction permitted by clause (b) of Section 4.10;
(iv) transactions permitted by, and complying with, the provisions described under Section 5.01;
(v) any Transaction or any transaction described under the caption "Use of Proceeds" in the Offering Circular pursuant to which the Initial Notes are offered and sold; and
(vi) agreements to make the payments described in clause (y)(2) of the second sentence of the definition of the term "Investment" (as defined in the 2007 Indenture (as in effect on the Issue Date)). As of the Issue Date, the cash salary and bonus in the aggregate payable to Jack Bendheim in respect of each fiscal year (i) for which Cash Flo▇ ▇▇ ▇▇▇ ▇▇▇▇r fiscal year is less than $25.0 million shall be capped at $750,000, (ii) for which Cash Flow of the purpose prior fiscal year is greater than or equal to $25.0 million but less than $36.0 million, shall not exceed the sum of granting or altering registration rights (A) $750,000 plus (B) (1) $900,000 times (2) a ratio, the numerator of which is Cash Flow with respect to such prior fiscal year less $25.0 million and the Capital Stock denominator of which is $11.0 million and (iii) for which Cash Flow of the Company; prior fiscal year is greater than or equal to $36.0 million, shall be determined by the Compensation Committee of the Board of Directors and (h) any transaction or series of related transactions entered into prior to the date hereofshall not exceed $2.0 million.
Appears in 1 contract
Sources: Indenture (Pahc Holdings Corp)
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 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 or any of its Restricted Subsidiaries (other than an "Affiliate Transaction") unless
(i) 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 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, Affiliate,
(bii) with respect to any transaction in the event such Affiliate Transaction (or series of related transactions involving Affiliate Transactions) involves an aggregate value amount in excess of $3.0 5.0 million, the terms of such transaction have been approved by at least a majority of the members of the Board of Directors of the Company (and such majority determines that such Affiliate Transaction satisfies the criteria in (i) above) and
(iii) in the event such Affiliate Transaction (or series of related Affiliate Transactions) involves an aggregate amount in excess of $10.0 million, the Company delivers an Officers' Certificate to the Trustee certifying that such transaction (or series of related transactions complies with clause (aAtrium where applicable) above, and (c) with respect to any transaction or series of related transactions involving aggregate value in excess of $7.0 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 received a written opinion of from an independent -76- investment banking firm of national nationally recognized 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 such Affiliate Transaction is fair to the Company or such Restricted Subsidiary Subsidiary, as the case may be, from a financial point of view; provided, however, that this provision .
(b) The requirements of Section 10.15(a) shall not apply to: to (ai) compensation any Restricted Payment or other payment or Investment permitted to be made pursuant to Section 10.14, (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 of employees, officers and directors, consultants and advisors approved by the Board of Directors of the Company or Atrium, (iii) loans or advances to employees in the ordinary course of business of the Company or any officerof its Restricted Subsidiaries, director (iv) any transaction between or employee among the Company and any of its Restricted Subsidiaries or between or among its Restricted Subsidiaries (so long as no Person (other than a Restricted Subsidiary of the Company) that is an Affiliate of the Company has any direct or indirect interest in such Restricted Subsidiary), including under any stock option or stock incentive plans(v) indemnification agreements with, and the payment of fees and indemnities to, directors, officers and employees of the Company and its Restricted Subsidiaries, in each case in the ordinary course of business; , (bvi) transactions pursuant to agreements as in existence on the Issue Date, (vii) any transaction solely between employment, noncompetition or among the Company and/or any Restricted Subsidiaries, if such transaction is otherwise in compliance with this Indenture and is on fair and reasonable terms; (c) any transaction otherwise permitted by the terms of the section of 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 Restricted Subsidiary; (e) licensing or sublicensing of use of any intellectual property confidentiality agreements entered into by the Company or any Restricted Subsidiary to any Restricted 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 Restricted Subsidiaries with its employees in the ordinary course of business; , (fviii) arrangements between the Company and any Restricted Subsidiary issuance of the Company for the purpose of providing services or employees to such Restricted Subsidiary; (g) any transaction entered into for the purpose of granting or altering registration rights with respect to the Capital Stock of the CompanyCompany or Atrium, (ix) any obligations of the Company or Atrium in respect of management fees payable to Ardshiel pursuant to agreements as in effect on the Issue Date and (x) any transaction in connection with a Permitted Receivables Transaction; provided, however, (A) so long as any Default under Section 5.01(c) arising by virtue of a default in the performance of any obligation in Sections 10.23 or 10.24 has not been cured or waived and the Company shall not subsequently be in compliance therewith in each case within 90 days after the occurrence thereof, payments pursuant to the agreements described in clause (ix) of this Section 10.15 shall only be permitted in an amount equal to 50% of the amount then due (other than any accrued and unpaid portion); and (hB) any transaction so long as an Event of Default described in clause (a) or series (b) of related transactions entered into prior Section 5.01 has occurred and is continuing, no payments shall be made pursuant to the date hereofAgreements described in clause (ix) of this Section 10.15.
Appears in 1 contract
Sources: Indenture (Atrium Corp)
Limitation on Transactions with Affiliates. The Company will not, and will not permit any of its Restricted 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 Mid-Holdings, 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 Mid-Holdings and its 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 Company foregoing, Mid-Holdings and its Restricted Subsidiaries may:
(a) (x) unless a Specified Default has occurred and is continuing, pay Permitted Management Fees (provided, that such amounts accrued but not permitted to be paid due to the continuance of a Specified Default may be paid once such Specified Default is cured or waived in accordance with Section 9.2); and (y) pay expenses, indemnification claims and other amounts (in each case, other than Permitted Management Fees) pursuant to the Management Agreement;
(b) enter into and consummate the transactions listed on Schedule 6.9(b);
(c) make Restricted Payments permitted pursuant to Section 6.6;
(d) 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), (w), (cc) or (dd) (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);
(e) consummate the Transactions (including the issuance of Capital Stock to any officer, director, employee or consultant of Mid-Holdings or any of its Subsidiaries or any direct or indirect parent of Mid-Holdings) and transactions related to or necessary or contemplated in connection with any IPO (whether or not consummated), and, in each case, pay fees and expenses related to thereto;
(f) enter into employment and severance arrangements with officers, directors and employees of Holdings (or any direct or indirect parent company of Holdings), Mid-Holdings and the Restricted Subsidiaries and, to the extent relating to services performed for Holdings, Mid-Holdings 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 Holdings (or any direct or indirect holding company of Holdings) in connection with the foregoing shall be subject to Section 6.6;
(g) make customary payments to the Sponsor for any financial advisory, financing, underwriting or placement services or in respect of other investment banking activities (including in connection with acquisitions or divestitures), which payments are approved by the majority of the members of the Board of Directors or a majority of the disinterested members of the Board of Directors of Mid-Holdings in good faith;
(h) 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 Mid-Holdings and the Restricted Subsidiaries in such joint venture) in the ordinary course of business to the extent otherwise permitted hereunder;
(i) pay reasonable out-of-pocket costs and expenses relating to registration rights and indemnities provided to holders of Capital Stock of a Parent Entity or any direct or indirect parent company thereof pursuant to any stockholders agreement or registration and participation rights agreement as in effect on the Closing Date or entered into after the Closing Date in connection with any financing transaction, the net proceeds of which are contributed to Mid-Holdings;
(j) enter into transactions between Mid-Holdings 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 Mid-Holdings or any direct or indirect parent of Mid-Holdings; provided, however, that such director abstains from voting as a director of Mid-Holdings or such Restricted Subsidiarydirect or indirect parent, as the case may be, than those that would be reasonably expected on any matter involving such other Person;
(k) engage in the non-exclusive licensing of Intellectual Property in the ordinary course of business to be available in a comparable transaction in arm'spermit the commercial exploitation of Intellectual Property between or among Affiliates of Mid-length dealings with an unrelated third party, Holdings; and
(bl) enter into transactions with respect to which Mid-Holdings 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 $3.0 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 $7.0 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 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 Mid-Holdings 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 of business; (b) any transaction solely between or among the Company and/or any Restricted Subsidiaries, if such transaction is otherwise in compliance with this Indenture and is on fair and reasonable terms; (c) any transaction otherwise permitted by the terms of the section first sentence of 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 Restricted Subsidiary; (e) licensing or sublicensing of use of any intellectual property by the Company or any Restricted Subsidiary to any Restricted 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 Restricted Subsidiary of the Company for the purpose of providing services or employees to such 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 hereof6.9.
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, purchaselease, contribution or exchange or lease of assets, any property or servicesthe rendering of any service) with or for the benefit of any Affiliate of its Affiliates (other than transactions between the Company and a Restricted Subsidiary of the Company or among Restricted Subsidiaries of the Company) (an "Affiliate Transaction"), 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 Affiliate Transactions on terms that are no less favorable than those that might reasonably have been obtained in a comparable transaction 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 involving value of $5,000,000 or more, such determination shall be made in good faith by a majority of members of the Board of Directors of the Company and by a majority of the disinterested members of the Board of Directors of the Company, if any; provided, further, that for a transaction or series of related transactions involving value of $15,000,000 or more, the Board of Directors of the Company has received an opinion from an independent investment banking firm of nationally recognized standing that such Affiliate Transaction is fair, from a financial point of view, to the Company or such Restricted Subsidiary. The foregoing restrictions shall not apply to (1) reasonable and customary directors' fees, indemnification and similar arrangements and payments thereunder; (2) any obligations of the Company under any employment agreement, noncompetition or confidentiality agreement with any officer of the Company, as in effect on the case may be, than those Issue Date (provided that would each amendment of any of the foregoing agreements shall be reasonably expected subject to the limitations of this covenant); (3) any Restricted Payment permitted to be available made pursuant Section 4.10; (4) any issuance of securities, or other payments, awards or grants in a comparable transaction in arm's-length dealings with an unrelated third partycash, (b) with respect to any transaction securities or series of related transactions involving aggregate value in excess of $3.0 millionotherwise pursuant to, or the Company delivers an Officers' Certificate to the Trustee certifying that such transaction or series of related transactions complies with clause (a) abovefunding of, employment arrangements, stock options and (c) with respect to any transaction or series of related transactions involving aggregate value in excess of $7.0 million, either (A) such transaction or series of related transactions has been stock ownership plans approved by a majority the Board of the Disinterested Directors of the Company, ; (5) loans or in the event there is only one Disinterested Director, by such Disinterested Director, or (B) the Company delivers advances 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: (a) compensation and employee benefit arrangements with any officer, director or employee of the Company, including under any stock option or stock incentive plans, employees in the ordinary course of businessbusiness of the Company or any of its Restricted Subsidiaries consistent with past practices; (b6) any transaction solely between or among payments made in connection with the Transactions and the Grand Rapids Acquisition, including, without limitation, fees to Hick▇ ▇▇▇e, as described in the Offering Memorandum; and (7) payments by the Company and/or any Restricted Subsidiaries, if such transaction is otherwise to Hick▇ ▇▇▇e Partners in compliance accordance with this Indenture and is on fair and reasonable terms; (c) any transaction otherwise permitted by the terms of the section of this Indenture described in Section 1009; (d) Financial Advisory Agreement and the execution Monitoring and delivery of or payments made under any tax sharing agreement between or among any of the Company and any Restricted Subsidiary; (e) licensing or sublicensing of use of any intellectual property by the Company or any Restricted Subsidiary to any Restricted 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 Restricted Subsidiary of the Company for the purpose of providing services or employees to such 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 hereofOversight Agreement.
Appears in 1 contract
Sources: Indenture (WTNH Broadcasting 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 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 unless: (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-arm's length dealings with a Person that is not an unrelated third partyAffiliate of the Company or such Restricted Subsidiary, (bii) with respect to any a transaction or series of related transactions involving aggregate value payments in excess of $3.0 million500,000 in the aggregate, the Company delivers shall deliver an Officers' Certificate to the Trustee certifying that such transaction or series of related transactions complies with clause (ai) above, and (ciii) without limiting clause (ii) above with respect to any a transaction or series of 100 related transactions involving payments in excess of $1,000,000 in the aggregate, such transaction or series of related transactions shall have been approved by the Board of Directors of the Company and at least two-thirds of the independent directors of the Company then in office and evidenced by a Board Resolution delivered to the Trustee; and (iv) without limiting clause (ii) or (iii), with respect to a transaction or series of related transactions involving aggregate value in excess payments of $7.0 million5,000,000 or more in the aggregate, either (Aa) the Company shall have received the written opinion of an independent accounting or investment banking firm which is nationally recognized in the United States, or a reputable independent appraisal or petroleum engineering firm which is reasonably satisfactory to the Trustee, as appropriate under the circumstances, 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 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 fair, from a financial point of view, to the Company or such Restricted Subsidiary from a financial point of viewSubsidiary; provided, however, that this provision shall the foregoing restriction will not apply to: (a1) 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 transactions exclusively between or among the Company and/or any of its Restricted Subsidiaries, if (2) transactions consummated pursuant to any agreement existing on the Closing Date (other than the corporate services agreement between the Company and Grey Wolf), including any amendment to, or replacement of, such transaction existing agreement to the extent such amendment or replacement is otherwise not more disadvantageous to the holders of the Notes in compliance with this Indenture any material respect than such existing agreement as in effect on the Closing Date, (3) for so long as Grey Wolf is a Subsidiary of the Company, transactions consummated pursuant to the corporate services agreement between the Company and Grey Wolf, including any amendment to, or replacement of, such agreement to the extent such amendment or replacement is not more disadvantageous to the holders of the Notes in any material respect than such agreement as in effect on fair the Closing Date, (4) the payment of reasonable and reasonable terms; customary regular fees to directors of the Company or any of its Restricted Subsidiaries who are not employees of the Company or any Affiliate thereof as determined in good faith by the Board of Directors of the Company, (c5) any transaction otherwise permitted by payments made under the terms of the section employment agreements and employee compensation and other benefit arrangements of 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 Restricted Subsidiary; (e) licensing or sublicensing of use of any intellectual property by the Company or any Restricted Subsidiary to any Restricted Subsidiary 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 business, (6) indemnities of its respective business; (f) arrangements between the Company officers and any Restricted Subsidiary directors of the Company for or any Subsidiary thereof consistent with such Person's charter, bylaws or other constituent documents and applicable statutory provisions, (7) Restricted Payments and Permitted Investments, in each case, permitted by the purpose provisions of providing services this Indenture, (8) any Guarantee or employees to such assumption by the Company or any of its Restricted SubsidiarySubsidiaries of Indebtedness of the Company or any of its Restricted Subsidiaries Incurred in accordance with the terms of this Indenture; or (g9) any transaction entered into for the purpose issuance of granting or altering registration rights with respect to the Qualified 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: Intercreditor, Security and Collateral Agency Agreement (Abraxas Petroleum Corp)
Limitation on Transactions with Affiliates. (a) The Company will shall not, and will shall not permit any of its Restricted Subsidiaries 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 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 $3.0 5.0 million, 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 except as provided in excess of $7.0 millionSection 4.07(a)(iii), either (A) such transaction or series of related transactions has have been approved by a majority of the Disinterested Directors members of the CompanyBoard of Directors having no personal stake in such Affiliate Transaction (if any such members exist) and (iii) that, or in the event there is only one Disinterested Director, by (1) such Disinterested DirectorAffiliate Transaction involves an amount in excess of $10.0 million, or (B2) if there are no members of the Company delivers to the Trustee Board of Directors having no personal stake in such Affiliate Transaction and such Affiliate Transaction involves an aggregate amount in excess of $5.0 million, have been determined by a written opinion of an nationally recognized appraisal, accounting or 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 be fair, from a financial standpoint, to the Company or such and its Restricted Subsidiary from a financial point Subsidiaries.
(b) The provisions of view; provided, however, that this provision Section 4.07(a) shall not apply prohibit (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: (a) compensation and employee benefit arrangements with any officer, director or employee the funding of, employment arrangements, options to purchase Capital Stock of the CompanyCompany and equity ownership, including under any restricted stock option or stock plans, long-term incentive plans, stock appreciation rights plans, participation plans or similar employee benefits plans approved by the Board of Directors, (iii) the grant of options (and the exercise thereof) to purchase Capital Stock of the Company or similar rights to employees and directors of the Company pursuant to plans approved by the Board of Directors, (iv) loans or advances to officers, directors or employees in the ordinary course of business; , but in any event not to exceed $2.0 million in the aggregate outstanding at any one time with respect to all loans and advances made since the Original Issue Date, (b) any transaction solely between or among the Company and/or any Restricted Subsidiaries, if such transaction is otherwise in compliance with this Indenture and is on fair and reasonable terms; (c) any transaction otherwise permitted by the terms of the section of this Indenture described in Section 1009; (dv) the execution and delivery payment of or payments made under any tax sharing agreement between or among any reasonable fees to directors of the Company and its Subsidiaries who are not employees of the Company or its Subsidiaries and other reasonable fees, compensation, benefits and indemnities paid or entered into by the Company or its Restricted Subsidiaries in the ordinary course of business to or with the officers, directors or employees of the Company and its Restricted 60 Subsidiaries, (vi) any transaction between the Company and a Restricted Subsidiary; Subsidiary or between Restricted Subsidiaries, (evii) licensing the provision by Persons who may be deemed Affiliates or sublicensing stockholders of use the Company (other than ▇.▇. ▇▇▇▇▇▇ Partners, LLC and Persons directly or indirectly controlled by ▇.▇. ▇▇▇▇▇▇ Partners, LLC) of any intellectual property investment banking, commercial banking, trust, lending or financing, investment, underwriting, placement agent, financial advisory or similar services to the Company or its Subsidiaries performed after the Closing Date, (viii) sales of Capital Stock to Permitted Holders approved by a majority of the members of the Board of Directors who do not have a material direct or indirect financial interest in or with respect to the transaction being considered, or (ix) the existence or performance by the Company or any Restricted Subsidiary under any agreement as in effect as of the Closing Date or replacement agreement therefor or any transaction contemplated thereby (including pursuant to any Restricted Subsidiary amendment thereto or replacement agreement therefor) so long as such amendment or replacement is not more disadvantageous to the Holders of the Company; provided that Securities in any material respect than the licensor original agreement as in effect on the Closing Date. For all purposes under this Indenture, including Article VI and Section 9.02 hereof, holders of Non-Consenting Securities shall continue to not have access to such intellectual property to the extent necessary for the conduct of its respective business; (f) arrangements between the Company and any Restricted Subsidiary benefit of the Company for the purpose terms and provisions of providing services or employees to such 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 hereofthis Section 4.07.
Appears in 1 contract
Sources: Indenture (Uniplast Industries Co)
Limitation on Transactions with Affiliates. The Company will (a) Bucyrus shall not, and will shall not permit any of its Restricted Subsidiaries Subsidiary to, directly or indirectly, enter into or permit to exist any transaction or series of related transactions (including, without limitation, the purchase, sale, purchaselease or exchange of any property, exchange employee compensation arrangements or lease the rendering of assets, property or servicesany service) with or for the benefit of any Affiliate of the Company Bucyrus (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 the terms thereof (a1) such transaction or series of related transactions is on terms that are no less favorable to the Company Bucyrus or such Restricted Subsidiary, as the case may be, 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 who is not such an unrelated third partyAffiliate, (b2) with respect to any transaction or series of related transactions involving if such Affiliate Transaction involves aggregate value in excess of $3.0 million1.0 million in any one year, the Company delivers an Officers' Certificate to the Trustee certifying that such transaction or series of related transactions complies (i) are set forth in writing, (ii) comply with clause (a) above1), and (ciii) with respect to any transaction or series of related transactions involving aggregate value in excess of $7.0 million, either (A) such transaction or series of related transactions has have been approved by a majority of the Disinterested Directors Independent Directors, and (3) if such Affiliate Transaction involves aggregate value in excess of the Company$5.0 million in any one year, (i) comply with clause (2), and (ii) have been determined by a nationally recognized investment banking, appraisal, valuation or in the event there is only one Disinterested Directoraccounting firm to be fair, 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; providedstandpoint, however, that this provision to Bucyrus and the Restricted Subsidiaries.
(b) Section 4.12(a) shall not apply prohibit (i) any Restricted Payment permitted to be made pursuant to Section 4.10, (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 and stock ownership plans in the ordinary course of business (aas determined in good faith by the Board of Directors) and approved by the Board of Directors, (iii) the grant of stock options or similar rights to employees and directors of Bucyrus in the ordinary course of business (as determined in good faith by the Board of Directors) and pursuant to plans approved by the Board of Directors, (iv) loans or advances to employees in the ordinary course of business of Bucyrus and the Restricted Subsidiaries, (v) fees, compensation and or employee benefit arrangements with paid to and indemnity provided for the benefit of directors, officers or employees of Bucyrus or any officer, director or employee of the Company, including under any stock option or stock incentive plans, Subsidiary in the ordinary course of business; , (bvi) any transaction solely between or among the Company Bucyrus and/or any Restricted one or more Guarantors and/or Wholly Owned Subsidiaries, if such transaction is otherwise (vii) performance or discharge by Bucyrus of its obligations under agreements as in compliance with this Indenture and is effect on fair and reasonable terms; the Issue Date, (cviii) any transaction otherwise permitted by the terms repayment of the section of this Indenture described in Section 1009; (d) the execution and delivery of or payments made under any tax sharing agreement between or among any AIP Bridge Loan upon consummation of the Company and any Restricted Subsidiary; AIP Merger or (eix) licensing payment of $4.0 million to AIP in connection with the AIP Merger or sublicensing payment of use of any intellectual property by the Company or any Restricted Subsidiary fees to any Restricted Subsidiary of the Company; provided that the licensor shall continue to have access to such intellectual property AIP pursuant to the extent necessary for the conduct of its respective business; (f) arrangements between the Company and any Restricted Subsidiary of the Company for the purpose of providing services or employees Management Agreement in an amount not to such 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 hereofexceed $1.5 million per year.
Appears in 1 contract
Limitation on Transactions with Affiliates. The Company will not, and will not permit any of its Restricted 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 (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, as determined in good faith by the Board of Directors, whose determination shall be conclusive and evidenced by a Board Resolution, 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 in excess of consideration equal to or greater than $3.0 million2,500,000, the Company delivers shall have delivered an Officersofficers' Certificate 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 $7.0 million, either (A) such transaction or series of related transactions has been 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, or (B) the Company delivers to the Trustee has obtained a written opinion of an from a nationally recognized investment banking firm of national standing or other recognized independent expert with experience appraising to 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 Restricted Subsidiary Subsidiary, as the case may be, from a financial point of viewview and (iii) with respect to any transaction or series of related transactions including aggregate consideration in excess of $10,000,000, or in the event no members of the Board of Directors of the Company are Disinterested Directors with respect to any transaction or series of transactions included in clause (ii), the Company shall obtain an opinion from a nationally recognized investment banking firm as described above; 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; (b1) any transaction solely between or among the Company and/or any Restricted Subsidiaries, if such transaction is otherwise in compliance with this Indenture and is on fair and reasonable terms; (c) any transaction otherwise permitted by the terms of the section of 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 Restricted Subsidiary; (e) licensing or sublicensing of use of any intellectual property by the Company or any Restricted Subsidiary with an Affiliate directly related to the purchase, sale or distribution of products in the ordinary course of business consistent with industry practice, (2) the Company from paying reasonable and customary regular compensation and fees to directors of the Company or any Restricted Subsidiary who are not employees of the CompanyCompany or any Restricted Subsidiary, (3) the payment of compensation (including stock options and other incentive compensation) to officers and other employees the terms of which are approved by the Board of Directors, (4) the Company or any Restricted Subsidiary from making any Restricted Payment in compliance with Section 1012 (including pursuant to the second paragraph thereof), (5) transactions between the Company and ▇▇▇▇▇▇▇▇▇▇ & Partners Inc. pursuant to agreements in effect on the date of this Indenture and listed on a schedule to this Indenture; provided that the licensor shall continue Company will not, and will not permit any Restricted Subsidiary to have access to amend, modify or in any way alter, other than an extension of the termination thereof, the terms of any such intellectual property agreement in a manner materially adverse to the extent necessary for holders of the conduct of its respective business; Notes, (f6) arrangements between transactions among the Company and its Restricted Subsidiaries, (7) the payment of fees to ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & Company, Incorporated for investment banking services rendered to the Company or (8) amendments to the Loral Satellite Purchase Contract; provided that the Company will not amend, modify or in any Restricted Subsidiary way alter the terms of such agreement in a manner materially adverse to the holders of the Company for the purpose of providing services or employees to such 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 hereofNotes.
Appears in 1 contract
Sources: Indenture (Cd Radio 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 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 unless: (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-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 $3.0 million1,000,000 in the aggregate, the Company delivers an Officers' Certificate to the Trustee certifying that such transaction complies with clause (i) above, (iii) with respect to a transaction or series of transactions involving payments in excess of $5,000,000 but less than $15,000,000 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 (ai) above, above and (c) with respect to any transaction or series of related transactions involving aggregate value in excess of $7.0 million, either (Ab) such transaction or series of related transactions has will have been approved by a majority of the Disinterested Directors of the Company, and (iv) with respect to a transaction or series of transactions involving payments of $15,000,000 or more in the event there is only one Disinterested Directoraggregate, by such Disinterested Director, or (B) the Company delivers an Officers' Certificate 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 certifying that (a) such transaction or series of related transactions for which an opinion is required stating that the transactions complies with clause (i) above, (b) such transaction or series of related transactions will have been approved by a majority of the Disinterested Directors of the Company and (c) the Company will have received the written opinion of a firm of investment bankers nationally recognized in the United States that such transaction or series of transactions is fair fair, from a financial point of view, to the Company or such Restricted Subsidiary from a financial point of viewSubsidiary; provided, however, that this provision shall the foregoing restriction will not apply to: (a1) compensation the provision of services and employee benefit arrangements with payments under the Master Services Agreement so long as such agreement (including any officer, director modifications thereof or employee amendments thereto entered into on or after the date of this Indenture) has been approved by a majority of the independent directors of the Board of Directors of the Company, including under any stock option (2) loans or stock incentive plansadvances to officers, in the ordinary course directors and employees of business; (b) any transaction solely between or among the Company and/or any Restricted Subsidiaries, if such transaction is otherwise in compliance with this Indenture and is on fair and reasonable terms; (c) any transaction otherwise permitted by the terms of the section of 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 Restricted Subsidiary; (e) licensing or sublicensing of use of any intellectual property by the Company or any Restricted Subsidiary to any Restricted Subsidiary 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 business and consistent with past practices of its respective business; (f) arrangements between the Company and its Restricted Subsidiaries in an aggregate amount not to exceed $3,000,000 outstanding at any Restricted Subsidiary one time, (3) the payment of reasonable and customary regular fees to directors of the Company for the purpose or any of providing services or its Restricted Subsidiaries who are not employees to such 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 or any Affiliate, (4) the Company; 's employee compensation and other benefit arrangements, or (h5) indemnities of officers and directors of the Company or any transaction or series of related transactions entered into prior to the date hereofSubsidiary consistent with such Person's bylaws and applicable statutory provisions.
Appears in 1 contract
Limitation on Transactions with Affiliates. The Company will shall not, and will shall not permit any of its Restricted Subsidiaries 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 $3.0 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 $7.0 10 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 as to 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 fairness to the Company or such Restricted Subsidiary of such transaction or series of transactions from a financial point of view; providedview issued by an accounting, however, that this provision shall not apply to: (a) compensation and employee benefit arrangements with any officer, director appraisal or employee of the Company, including under any stock option or stock incentive plansinvestment banking firm, in the ordinary course each case of business; national standing. The foregoing covenant will not restrict:
(bA) any transaction solely between or transactions among the Company and/or any its Restricted Subsidiaries, if such transaction is otherwise in compliance with this Indenture and is on fair and reasonable terms; ;
(c) any transaction otherwise permitted by the terms of the section of this Indenture described in Section 1009; (dB) the execution Company from paying reasonable and delivery customary regular compensation and fees to directors of or payments made under any tax sharing agreement between or among any of the Company and any Restricted Subsidiary; (e) licensing or sublicensing of use of any intellectual property by the Company or any Restricted Subsidiary who are not employees of the Company or any Restricted Subsidiary;
(C) transactions permitted by Section 1011;
(D) advances to employees for moving, entertainment and travel expenses and similar expenditures in the ordinary course of business and consistent with past practice; and
(E) purchases of equipment, supplies and related services made on an arm's length basis in the ordinary course of business by the Company, any Restricted 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 or any Restricted Subsidiary of the Company for the purpose of providing services or employees to such Restricted Subsidiary; (g) Permitted Joint Venture from 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. (a) The Company will shall not, and will shall not permit any of its Restricted Subsidiaries 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 of any property employee compensation arrangements or lease the rendering of assets, property or servicesany 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 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, (bii) with respect to any transaction or series of related transactions involving if such Affiliate Transaction involves an aggregate value amount in excess of $3.0 million3,000,000, 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 $7.0 million, either (A) such transaction or series of related transactions has have been approved by a majority of the Disinterested Directors members of the Company, Board of Directors having no personal stake in such Affiliate Transaction and (iii) if such Affiliate Transaction involves an amount in excess of $15,000,000 have been determined by a nationally recognized appraisal 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 be fair, from a financial standpoint, to the Company or such and its Restricted Subsidiary from a financial point of viewSubsidiaries; provided, however, provided that this provision clause (iii) shall not apply to: (a) compensation and employee benefit arrangements to reinsurance transactions with any officer, director or employee Affiliate of the Company, including under any stock option or stock incentive plans, Company in the ordinary course of business; .
(b) The provisions of Section 4.07(a) shall not prohibit (i) any transaction solely between Restricted Payment permitted to be paid pursuant to Section 4.04, (ii) any issuance of securities, or among 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, (iii) the grant of stock options or similar rights to employees and directors of the Company and/or any Restricted Subsidiaries, if such transaction is otherwise in compliance with this Indenture and is on fair and reasonable terms; (c) any transaction otherwise permitted pursuant to plans approved by the terms Board of Directors, (iv) loans or advances to employees in the ordinary course of business in accordance with past practices of the section of this Indenture described in Section 1009; Company, (dv) the execution and delivery payment of or payments made under any tax sharing agreement between or among any reasonable fees to directors of the Company and any Restricted Subsidiary; (e) licensing or sublicensing its Subsidiaries who are not employees of use of any intellectual property by the Company or its Subsidiaries or (vi) any Restricted Subsidiary to any Restricted 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 transaction between the Company and any a Restricted Subsidiary of the Company for the purpose of providing services or employees to such between 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 hereofSubsidiaries.
Appears in 1 contract
Sources: Indenture (Ace LTD)
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 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 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 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 at the time of such transaction in arm's-length dealings with a Person who is not such an unrelated third party, Affiliate; (b2) with respect to any transaction or series of related transactions involving in the event such Affiliate Transaction involves an aggregate value consideration in excess of $3.0 5.0 million, the Company delivers an Officers' Certificate to the Trustee certifying that terms 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 $7.0 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 CompanyCompany and by a majority of the members of such Board having no personal stake in such transaction, if any (and such majority or majorities, as the case may be, determines that such Affiliate Transaction satisfies the criteria in clause (1) above); and (3) in the event there is only one Disinterested Directorsuch Affiliate Transaction involves an aggregate consideration in excess of $15.0 million, by such Disinterested Director, or (B) the Company delivers to the Trustee has received a written opinion of from an independent investment banking banking, accounting or appraisal firm of national nationally recognized 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 that such Affiliate Transaction is required stating that the transactions or series of related transactions is fair fair, from a financial standpoint, to the Company or such and its Restricted Subsidiary from Subsidiaries taken as a financial point whole.
(b) The provisions of view; provided, however, that this provision shall the foregoing paragraph (a) will not apply to: (a1) any Restricted Payment permitted to be made pursuant Section 3.4 or any Permitted Investments; (2) any issuance of securities, or other payments, awards or grants in cash, securities or otherwise pursuant to, or the funding of, employment agreements and other compensation and employee benefit arrangements with any officerarrangements, director or employee options to purchase Capital Stock of the Company, including under any restricted stock option or stock plans, long-term incentive plans, stock appreciation rights plans, participation plans or similar employee benefits plans and/or indemnity provided on behalf of officers and employees approved by the Board of Directors; (3) payments, loans or advances to employees or officers (other than executive officers) in the ordinary course of businessbusiness of the Parent, the Company or any of its Restricted Subsidiaries determined in good faith by the Board of Directors; (b4) any transaction solely between or among the Company and/or any Restricted Subsidiaries, if such transaction is otherwise in compliance with this Indenture and is on fair and reasonable terms; (c) any transaction otherwise permitted by the terms of the section of 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 a Restricted Subsidiary; Subsidiary (eother than a Receivables Entity) licensing or sublicensing of use of any intellectual property between Restricted Subsidiaries (other than a Receivables Entity or Receivables Entities) and Guarantees, whether or not secured, issued by the Company or any a Restricted Subsidiary to for the benefit of the Company or a Restricted Subsidiary, as the case may be, in accordance with Section 3.3; (5) the payment of reasonable and customary fees, expenses and compensation paid to, and indemnity provided on behalf of, directors of the Parent, the Company or any Restricted Subsidiary of the Company; provided (6) the performance of obligations of the Company or any of its Restricted Subsidiaries under the terms of any agreement to which the Company or any of its Restricted Subsidiaries is a party as of or on the Issue Date and identified on a schedule to the Indenture on the Issue Date, as these agreements may be amended, modified, supplemented, extended or renewed from time to time; provided, however, that any future amendment, modification, supplement, extension or renewal entered into after the licensor shall continue to have access to such intellectual property Issue Date will be permitted to the extent necessary for that its terms are not more disadvantageous to the conduct holders of its respective businessthe Notes than the terms of the agreements in effect on the Issue Date; (f7) arrangements between transactions effected exclusively as part of a Qualified Receivables Transaction, and acquisitions of Permitted Investments in connection with a Qualified Receivables Transaction; (8) the payment of annual management, consulting, monitoring and advisory fees and expenses to Hidden Creek and its Affiliates in an amount in any fiscal year not to exceed $1.0 million; or (9) transactions with Parent, Unrestricted Subsidiaries and joint ventures, in each case in the ordinary course of business and otherwise in compliance with the terms of this Indenture, which are fair to the Company and any its Restricted Subsidiary Subsidiaries in the reasonable determination of the Company for Board of Directors or the purpose of providing services or employees to such Restricted Subsidiary; (g) any transaction entered into for the purpose of granting or altering registration rights with respect to the Capital Stock senior management of the Company; , and (h) any transaction or series of related transactions entered into prior to the date hereofare on terms at least as favorable as might reasonably have obtained at such time from an unaffiliated party.
Appears in 1 contract
Sources: Indenture (Tower Automotive Inc)
Limitation on Transactions with Affiliates. (a) The Company will not, and will not permit any of its Restricted Subsidiaries Subsidiary to, directly or indirectly, enter into any transaction or series of related transactions (includingincluding the purchase, without limitation, the sale, purchaselease or exchange of any property, exchange employee compensation arrangements or lease the rendering of assetsany service) with, property or services) with or for the benefit of of, any Affiliate of the Company (an “Affiliate Transaction”) involving aggregate payments or consideration in excess of $5.0 million unless:
(i) the terms of the Affiliate Transaction are no less favorable to the Company or such Restricted Subsidiary than those that could be obtained at the time of the Affiliate Transaction in arm’s-length dealings with a Person who is not an Affiliate;
(ii) if such Affiliate Transaction involves an amount in excess of $25.0 million, a majority of the directors of the Company disinterested with respect to such Affiliate Transaction have determined in good faith that the criteria set forth in Section 4.07(a)(i) are satisfied and have approved the relevant Affiliate Transaction as evidenced by a resolution of the Board of Directors; and
(iii) if such Affiliate Transaction involves an amount in excess of $200.0 million, the Company has received a written opinion from an independent investment banking, accounting or appraisal firm of nationally recognized standing that the terms of such Affiliate Transaction 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.
(b) The provisions of Section 4.07(a) will not prohibit:
(i) any transaction between or among the Company or any of its Restricted Subsidiaries (other than Securitization Vehicles);
(ii) any Permitted Investment or any Restricted Payment permitted to be made pursuant to Section 4.04;
(iii) 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 stock ownership plans entered into in the ordinary course of business;
(iv) payroll, travel, loans or advances to directors and employees in the ordinary course of business of the Company and its Restricted Subsidiaries, and on customary terms;
(v) any employment, consulting, service or termination agreement, or reasonable and customary indemnification agreement, entered into by the Company or any of its Restricted Subsidiaries in the ordinary course of business (and payments made pursuant thereto), and the payment of reasonable fees and expenses, and the provision of customary indemnities, to directors, officers, employees or consultants of the Company or any of its Restricted Subsidiaries in their capacities as such;
(vi) any transaction with a Person (other than an Unrestricted Subsidiary) which would constitute an Affiliate Transaction solely because the Company or a Wholly Owned SubsidiaryRestricted Subsidiary owns an equity interest in or otherwise controls such Person;
(vii) unless any transaction with a joint venture partner in the ordinary course of business of the Company and its Restricted Subsidiaries and otherwise in compliance with the terms of this Indenture; provided that, in the reasonable, good faith determination of the members of the Board of Directors or senior management of the Company, 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 the relevant Restricted Subsidiary, as the case may be, Subsidiary than those that would be could have reasonably expected to be available been obtained at the time of such transaction in a comparable transaction in arm's-length dealings by the Company or such Restricted Subsidiary with an unrelated third party, Person;
(bviii) with respect to the issuance or sale of any transaction or series of related transactions involving aggregate value in excess of $3.0 million, the Company delivers an Officers' Certificate to the Trustee certifying that such transaction or series of related transactions complies with clause Capital Stock (aother than Disqualified Stock) above, and (c) with respect to any transaction or series of related transactions involving aggregate value in excess of $7.0 million, either (A) such transaction or series of related transactions has been approved by a majority of the Disinterested Directors of the Company;
(ix) transactions with customers, clients, vendors, suppliers or other purchasers or sellers of goods or services, in each case in the event there is only one Disinterested Directorordinary course of business (including pursuant to joint venture agreements);
(x) transactions effected pursuant to any agreement in as in effect on the Issue Date and described in the Offering Memorandum and any amendment, by modification or replacement of any such Disinterested Directoragreement (so long as such amendments, modifications or replacements are not disadvantageous to the Holders in any material respect as compared to the applicable agreement as in effect on the Issue Date);
(Bxi) any transaction on arm’s-length terms with any non-Affiliate that becomes an Affiliate as a result of such transactions; and
(xii) any transaction in which the Company delivers to the Trustee a written opinion of from an investment banking firm of national standing or other recognized independent expert with experience appraising Independent Qualified Party to 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 fair, from a financial standpoint, to the Company 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 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 Restricted Subsidiaries, if such transaction is otherwise in compliance with this Indenture and is on fair and reasonable terms; (c) any transaction otherwise permitted by the terms of the section of 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 Restricted Subsidiary; (e) licensing or sublicensing of use of any intellectual property by the Company or any Restricted Subsidiary to any Restricted 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 Restricted Subsidiary of the Company for the purpose of providing services or employees to such 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 (Neustar Inc)
Limitation on Transactions with Affiliates. (a) The Company Issuer will not, and will not permit any of its Restricted Subsidiaries Subsidiary to, directly or indirectly, enter into or conduct any transaction or series of related transactions (includingincluding the purchase, without limitation, the sale, purchaselease or exchange of any property, exchange employee compensation arrangements or lease the rendering of assets, property or servicesany service) with or for the benefit of any Affiliate of the Company Issuer (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 in good faith and in writing and (a) such transaction or series of related transactions is on terms that transaction, taken as a whole, 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 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, Affiliate; (bii) 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 $3.0 1.0 million, the Company delivers an Officers' Certificate to the Trustee certifying that terms of such transaction or series of related transactions complies with clause (a) above, are set forth in writing and (c) with respect to any transaction or series of related transactions involving aggregate value in excess of $7.0 million, either (A) such transaction or series of related transactions has shall have been approved by a majority of the Disinterested Directors members of the Company, or Board of Directors having no personal stake in such Affiliate Transaction (and such majority determines that such Affiliate Transaction satisfies the criteria in clause (i) above) and (iii) in the event there is only one Disinterested Directorsuch Affiliate Transaction involves an aggregate amount in excess of $5.0 million, by such Disinterested Director, or (B) the Company delivers to the Trustee Issuer has received a written opinion of an from a nationally recognized 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 such Affiliate Transaction is fair to the Company or such Issuer and its Restricted Subsidiary Subsidiaries from a financial point of view; provided, however, that this provision shall not apply to: .
(b) The provisions of paragraph (a) compensation of this Section 4.8 shall not prohibit (i) any Restricted Payment permitted to be made pursuant to Section 4.5, (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 and employee benefit stock ownership plans approved by the Board of Directors, or any arrangements with any officerrelating thereto, director (iii) the grant of a stock options or employee similar rights to employees and directors of the CompanyIssuer pursuant to plans approved by the Board of Directors, including under any stock option (iv) loans or stock incentive plans, advances to employees in the ordinary course of business; business in accordance with the past practices of the Issuer or its Restricted Subsidiaries, but in any event not to exceed $1.0 million in the aggregate outstanding at any one time, (bv) the payment of reasonable fees to directors of the Issuer and its Restricted Subsidiaries who are not employees of the Issuer or its Restricted Subsidiaries, (vi) any transaction solely between the Issuer and a Restricted Subsidiary or among the Company and/or any between Restricted Subsidiaries, if such transaction is otherwise in compliance with this Indenture and is on fair and reasonable terms; (c) any transaction otherwise permitted by the terms of the section of this Indenture described in Section 1009; (dvii) the execution and delivery of or payments made under any tax sharing agreement between or among any of the Company and any Restricted Subsidiary; (e) licensing or sublicensing of use of any intellectual property by the Company or any Restricted Subsidiary to any Restricted 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 Restricted Subsidiary of the Company for the purpose of providing services or employees to such 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.issuance or
Appears in 1 contract
Sources: Indenture (Spectrasite Holdings 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 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"): (i) 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 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 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 $3.0 15 million, the Company delivers an Officers' Certificate to the Trustee certifying that such transaction or series of related transactions complies with clause (a) above, is not in writing and (c) with respect to any transaction or series of related transactions involving aggregate value in excess of $7.0 million, either (A) such transaction or series of related transactions has not been approved by a majority of the Disinterested Directors Directors. In addition, if such Affiliate Transaction involves an amount in excess of the Company$30 million, a fairness opinion must be provided by a nationally recognized appraisal or investment banking firm.
(b) The provisions of Section 4.07(a) shall not prohibit: (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 the event there is only one Disinterested Directorcash, by such Disinterested Directorsecurities or otherwise pursuant to, or the funding of, employment arrangements, stock options and stock ownership plans approved by the Board of Directors, (Biii) the Company delivers loans or advances 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: (a) compensation and employee benefit arrangements with any officer, director or employee of the Company, including under any stock option or stock incentive plans, employees in the ordinary course of business; (b) any transaction solely between or among the Company and/or any Restricted Subsidiaries, if such transaction is otherwise business in compliance accordance with this Indenture and is on fair and reasonable terms; (c) any transaction otherwise permitted by the terms past practices of the section of this Indenture described Company, but in Section 1009; any event not to exceed $2 million in the aggregate outstanding at any one time, (div) the execution and delivery payment of or payments made under any tax sharing agreement between or among any reasonable fees to directors of the Company and any Restricted Subsidiary; (e) licensing or sublicensing its Subsidiaries who are not employees of use of any intellectual property by the Company or its Subsidiaries, (v) any Restricted Subsidiary to any Restricted 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 transaction between the Company and any a Restricted Subsidiary or between Restricted Subsidiaries or (vi)arrangements in existence as of the Effective Date with Persons that employ staff providers and which provide service exclusively on behalf of the Company for the purpose of providing services or employees to such Restricted Subsidiary; (g) any transaction entered into for the purpose of granting or altering registration rights with respect and its Subsidiaries, which arrangements are not material to the Capital Stock of the Company; Company and (h) any transaction or series of related transactions entered into prior to the date hereofits Subsidiaries taken as a whole.
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 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 (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 its Affiliates, 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 at the time in a comparable transaction in arm's-length dealings with an unrelated third partyor series of related transactions at 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 $3.0 million5,000,000, 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) aboveand have been approved by the Board of Directors of the Company, and (c) with respect to any a transaction or series of related transactions involving aggregate payments or value in excess of equal to or greater than $7.0 10 million, either the Officers' Certificate referred to in clause (Ab) above also includes a certification 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 CompanyCompany or, or in the event there is only one Disinterested Director, by are no such Disinterested DirectorMembers of the Board of Directors, or (B) that the Company delivers to the Trustee has obtained a written opinion of from an independent nationally recognized investment banking firm, accounting firm of national standing or other recognized independent expert with experience appraising appraisal firm, in each case specializing or having a speciality in the terms type and conditions subject matter of the type of transaction or series of related transactions for at issue, which an opinion is required stating shall be to the effect set forth in clause (a) above or shall state that the transactions such transaction or series of related transactions is fair from a financial point of view to the Company or such Restricted Subsidiary from a financial point of view; providedSubsidiary. Notwithstanding the foregoing, however, that the restrictions set forth in this provision covenant shall not apply to: to (ai) transactions between or among the Company and its Restricted Subsidiaries, (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 Restricted Subsidiaries, if such transaction is otherwise dividends made in compliance with this Indenture Section 10.9, (iv) 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 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 Restricted Subsidiary; (e) licensing or sublicensing of use of any intellectual property by the Company or any Restricted Subsidiary made in the ordinary course of business in an aggregate amount not to exceed $1,000,000 outstanding at any Restricted Subsidiary one time, (v) transactions pursuant to agreements in effect on the Issue Date, (vi) written agreements entered into or assumed in connection with acquisitions of the Company; provided that the licensor shall continue to have access other businesses with Persons who were not Affiliates prior to such intellectual transactions, or (vii) leases of property to the extent necessary for the conduct of its respective business; (f) arrangements between the Company and any Restricted Subsidiary of the Company for the purpose of providing services or employees to such Restricted Subsidiary; (g) any transaction equipment entered into for in the purpose ordinary course of granting or altering registration rights business on terms that are substantially similar to those which could have been obtained at the time in a comparable transaction with respect to the Capital Stock of the Company; and (h) any transaction or series of related transactions entered into prior to the date hereofnon-Affiliates.
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 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 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, (bii) with respect to any transaction or series of related transactions involving that, in the event such Affiliate Transaction involves an aggregate value amount in excess of $3.0 1.0 million, 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 $7.0 million, either (A) such transaction or series of related transactions has have been approved by a majority of the Disinterested Directors members of the CompanyBoard of Directors having no personal stake in such Affiliate Transaction and (iii) that, or in the event there is only one Disinterested Directorsuch Affiliate Transaction involves an amount in excess of $20.0 million, have been determined by such Disinterested Director, a nationally recognized appraisal 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 be fair, from a financial standpoint, to the Company or such and its Restricted Subsidiary from a financial point Subsidiaries.
(b) The provisions of view; provided, however, that this provision Section 4.07(a) shall not apply prohibit (i) any Restricted Payment permitted to be paid pursuant 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 and stock ownership plans approved by the Board of Directors, (aiii) compensation the grant of stock options or similar rights to employees and employee benefit arrangements with any officer, director or employee directors of the CompanyCompany pursuant to plans approved by the Board of Directors, including under any stock option (iv) loans or stock incentive plans, advances to employees in the ordinary course of business; (b) any transaction solely between or among the Company and/or any Restricted Subsidiaries, if such transaction is otherwise business in compliance accordance with this Indenture and is on fair and reasonable terms; (c) any transaction otherwise permitted by the terms past practices of the section of this Indenture described Company, but in Section 1009; any event not to exceed $2.0 million in the aggregate outstanding at any one time, (dv) the execution and delivery payment of or payments made under any tax sharing agreement between or among any reasonable fees to directors of the Company and any Restricted Subsidiary; (e) licensing or sublicensing its Subsidiaries, if any, who are not employees of use of any intellectual property by the Company or its Subsidiaries, if any, (vi) any Restricted Subsidiary to any Restricted 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 transaction between the Company and any Restricted a Wholly Owned Subsidiary of the Company for the purpose of providing services or employees to such Restricted Subsidiary; between Wholly Owned Subsidiaries or (gvii) any transaction entered into for pursuant to, and on the purpose of granting or altering registration rights with respect to terms set forth in, the Capital Stock of the Company; and (h) any transaction or series of related transactions entered into prior to the date hereofProdigy Agreement.
Appears in 1 contract
Sources: Indenture (Splitrock Services Inc)
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 and
(a1) 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, ,
(b2) with respect to any transaction or series of related transactions involving aggregate value in excess of $3.0 10.0 million, ,
(a) the Company delivers an Officers' Certificate to the Trustee certifying that such transaction or series of related transactions complies with clause (a1) above, and and
(c) with respect to any transaction or series of related transactions involving aggregate value in excess of $7.0 million, either (Ab) such transaction or series of related transactions has been 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, or
(3) with respect to any transaction or (B) series of related transactions involving an aggregate value in excess of $50.0 million, the Company delivers to the Trustee a written opinion of an investment banking firm of national standing in the United States or Canada 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 transaction or series of related transactions is fair to the Company or such Restricted Subsidiary from a financial point of view; providedPROVIDED, howeverHOWEVER, that this provision shall not apply 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, and customary indemnification arrangements with officers or directors of the Company, in each case entered into in the ordinary course of business; , (bii) any transaction solely between or among the Company and/or any Restricted Subsidiaries, if such transaction is otherwise Payments made in compliance with this Indenture and is on fair and reasonable terms; Section 1009 above, (ciii) transactions effected as part of a Permitted Securitization Transaction, (iv) any transaction otherwise permitted by fees paid or expenses reimbursed to directors in the terms ordinary course in their capacity as such, (v) any sale or issuance of the section of this Indenture described in Section 1009; (d) the execution and delivery of or payments made under any tax sharing agreement between or among any Qualified Capital Stock to Affiliates of the Company and any Restricted Subsidiary; (evi) licensing or sublicensing transactions entered into in the ordinary course of use of any intellectual property by the Company or any Restricted Subsidiary to any Restricted 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 Restricted Subsidiary business with Affiliates of the Company who are Canadian drugstore franchisees, whether currently owned or after-acquired, in their capacities as such, for purposes of (a) purchase and sale of inventory for the purpose of providing services related franchises, or employees to such Restricted Subsidiary; (gb) any transaction entered entering into for the purpose of granting inventory buyback or altering registration rights with respect to the Capital Stock guarantee arrangements described under clauses (16) and (17) of the Company; and (h) any transaction or series definition of related transactions entered into prior to the date hereof."Permitted Indebtedness". 109
Appears in 1 contract
Sources: Exhibit (Brooks Pharmacy, Inc.)
Limitation on Transactions with Affiliates. The Company will Issuer shall not, and will shall not permit any of its Restricted 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 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, (b) with respect to any transaction or series of related transactions involving aggregate value in excess of consideration equal to or greater than $3.0 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 $7.0 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 Restricted 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 Restricted Subsidiaries, if such transaction is otherwise in compliance with this 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 this 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 Restricted Subsidiary; (e) licensing or sublicensing of use of any intellectual property by the Company or any Restricted Subsidiary to any Restricted 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 Restricted Subsidiary of the Company for the purpose of providing services or employees to such 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 hereofother employees.
Appears in 1 contract
Sources: Fifth Supplemental Indenture (Chelsea Gca Realty Partnership Lp)
Limitation on Transactions with Affiliates. (1) The Company Corporation will not, and will cause each Restricted Subsidiary not permit any of its Restricted Subsidiaries to, directly or indirectly, enter into any transaction or series of related transactions (including, without limitationthe purchase, the sale, purchaseconveyance, transfer, disposition, exchange or lease of assetsproperty, property the making of any Investment, the giving of any guarantee or the rendering of services) 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 their Affiliates, except in good faith and in writing and and:
(a) such transaction or series of related transactions is on terms that are no less favorable favourable to the Company Corporation 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 arm's-at such time on an arm’s length dealings with basis from a Person not an unrelated third party, Affiliate of the Corporation or such Restricted Subsidiary; and
(b) with respect to if the Corporation or any Restricted Subsidiary, directly or indirectly, enters into any transaction or series of related transactions involving (including the purchase, sale, conveyance, transfer, disposition, exchange or lease of property, the making of any Investment, the giving of any guarantee or the rendering of services) with or for the benefit of (i) any Person who owns, directly or indirectly, 20% or more of the outstanding Common Shares in the capital of the Corporation at such time (including Common Shares held by Affiliates of such Person) (a “20% Holder”), or (ii) any Affiliate of such 20% Holder, which transaction(s) involve aggregate value payments by or to such 20% Holder or its Affiliate, or involves property with a Fair Market Value in excess of of, $3.0 15 million, the Company delivers Corporation or the Restricted Subsidiary, as the case may be, will first obtain the approval of the Board of Directors to such transactions excluding from such vote each director who (A) is a party to such transactions, (B) is a director or officer of that 20% Holder or of an Officers' Affiliate of such 20% Holder, or (C) has a material interest in the 20% Holder or any of its Affiliates, such approval to be evidenced by a Certificate to of the Trustee Corporation certifying that such transaction or series transaction(s) have been approved by the Board of related transactions complies Directors in accordance with clause the foregoing.
(2) The foregoing restrictions in Section 6.08(1) will not apply to (a) abovefees and compensation paid to and indemnities provided on behalf of officers, and (c) with respect to any transaction directors, employees or series of related transactions involving aggregate value in excess of $7.0 million, either (A) such transaction or series of related transactions has been approved by a majority consultants of the Disinterested Corporation or any Restricted Subsidiary as determined in good faith by the Board of Directors or senior management 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: (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 businessCorporation; (b) any transaction solely transactions exclusively between or among the Company and/or Corporation and any of its Wholly-Owned Subsidiaries or Restricted Subsidiaries, if such transaction is otherwise in compliance with this Indenture and is on fair and reasonable terms; (c) any transaction otherwise permitted by the terms of the section of this Indenture described in Section 1009; (d) the execution and delivery of Subsidiaries or payments made under any tax sharing agreement exclusively between or among any of such Subsidiaries, including the Company Supply and any Restricted Subsidiary; (e) licensing or sublicensing of use of any intellectual property Services Agreements, provided such transactions are not otherwise prohibited by the Company or any Restricted Subsidiary to any Restricted 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 Restricted Subsidiary of the Company for the purpose of providing services or employees to such 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.this Indenture;
Appears in 1 contract
Sources: First Supplemental Indenture
Limitation on Transactions with Affiliates. (a) The Company will not, and will not permit any of its Restricted Subsidiaries Subsidiary to, directly or indirectly, enter into sell, lease or otherwise transfer any transaction property or series of related transactions (includingassets to, without limitation, the sale, or purchase, exchange lease or lease of assets, otherwise acquire any property or servicesassets from, or otherwise engage in any other transactions with, any of its Affiliates (an “Affiliate Transaction”), except:
(i) with or for the benefit payment of any Affiliate compensation to directors, officers, and employees of the Company or any of the Subsidiaries in the ordinary course of business;
(other than ii) payments in respect of transactions required to be made pursuant to agreements or arrangements in effect on the Issue Date and set forth on Schedule 6.09 of the ABL Credit Agreement;
(iii) transactions involving the acquisition of Inventory in the ordinary course of business; provided that (i) the terms of such transaction are (A) set forth in writing, (B) in the best interests of the Company or a Wholly Owned such Subsidiary) unless such transaction or series of related transactions is entered into in good faith and in writing , as the case may be, and (aC) 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 arm’s length transaction in arm's-length dealings with a Person that is not an unrelated third party, Affiliate of the Company or a Subsidiary and (bii) with respect to any if such transaction involves aggregate payments or series of related transactions involving aggregate value in excess of $3.0 million5,500,000, the Company delivers an Officers' Certificate to Board of Directors (including a majority of the Trustee certifying disinterested members of the Board of Directors) approves such transaction and, in its good faith judgment, believes that such transaction or series of related transactions complies with clause clauses (ai)(B) aboveand (C) of this Section 4.07(iii);
(iv) transactions between or among the Company and/or one or more Subsidiaries;
(v) the payment of any Transaction Expenses; and
(vi) any other Affiliate Transaction not otherwise permitted pursuant to this Section 4.07; provided that (i) the terms of such transaction are (A) set forth in writing, (B) in the best interests of the Company or such Subsidiary, as the case may be, and (cC) no less favorable to the Company or such Subsidiary, as the case may be, than those that could be obtained in a comparable arm’s length transaction with respect to any a Person that is not an Affiliate of the Company or a Subsidiary, (ii) if such transaction involves aggregate payments or series of related transactions involving aggregate value in excess of $7.0 million5,500,000 in any consecutive twelve (12) month period, either the Board of Directors (A) such transaction or series of related transactions has been approved by including a majority of the Disinterested Directors disinterested members of the CompanyBoard of Directors) approves such transaction and, in its good faith judgment, believes that such transaction complies with clauses (i)(B) and (C) of this Section 4.07(vi) and (iii) if such transaction involves aggregate payments or value in the event there is only one Disinterested Directorexcess of $5,500,000 in any consecutive twelve (12) month period, by such Disinterested Director, or (B) the Company delivers to the Trustee obtains a written opinion of from an independent investment banking firm or appraiser of national standing or other recognized independent expert with experience appraising prominence, as appropriate, to 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 Restricted Subsidiary Subsidiary, as the case may be, from a financial point of view; provided.
(b) Notwithstanding the foregoing limitation, howeverthe Company or any Subsidiary may enter into or suffer to exist the following:
(i) any transaction or series of transactions between the Company and one or more Subsidiaries or between two or more Subsidiaries;
(ii) any Restricted Payment, that this provision shall not apply to: Payment of Debt and Plan Payment permitted to be made pursuant to Section 4.04 or any Investments permitted to be made pursuant to Section 4.10;
(aiii) compensation and employee benefit arrangements any Affiliate Transaction, if such Affiliate Transaction is with any officerPerson solely in its capacity as a holder of Debt or Equity Interests of the Company or any of its Subsidiaries, where (i) such Person is treated no more favorably than any other holder of such Debt or Equity Interests of the Company or any of its Subsidiaries or (ii) such Affiliate Transaction results in a repurchase, redemption, c ancellation or extinguishment of some or all of the Securities;
(iv) any agreement as in effect on the Issue Date or any amendment thereto (so long as such amendment is not disadvantageous to the Holders in any material respect as determined by the Company in good faith) or any transaction contemplated thereby;
(v) payments of indemnification obligations to officers, managers and directors of the Company or any Subsidiary to the extent required by the organizational documents of such entity or applicable law;
(vi) any Affiliate Transaction between the Company or any Subsidiary and any Person that is an Affiliate of the Company or any Subsidiary solely because a director or employee of such Person is also a director of the Company; provided that such director abstains from voting as a director of the Company on any matter involving such other Person;
(vii) transactions with customers, including under any stock option clients, suppliers, or stock incentive planspurchasers 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 Company and the Subsidiaries, in the reasonable determination of the Company or are on terms, taken as a whole, at least as favorable as might reasonably have been obtained at such time from an unaffiliated party (as determined by the majority of disinterested members of Board of Directors or senior management of the Company in good faith); and
(viii) transactions involving the acquisition of Inventory in the ordinary course of business; (b) any transaction solely between or among the Company and/or any Restricted Subsidiaries, if such transaction is otherwise in compliance with this Indenture and is on fair and reasonable terms; (c) any transaction otherwise permitted by the terms of the section of 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 Restricted Subsidiary; (e) licensing or sublicensing of use of any intellectual property by the Company or any Restricted Subsidiary to any Restricted 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 Restricted Subsidiary of the Company for the purpose of providing services or employees to such 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
Limitation on Transactions with Affiliates. (a) The Company will not, and will not permit any of its Restricted Subsidiaries 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 is on terms:
(1) that are fair and reasonable to, and in the best interest of, the Company or series of related transactions is entered into such Restricted Subsidiary, as the case may be, as determined in good faith and by the Board of Directors;
(2) that, in writing and the event such Affiliate Transaction involves an aggregate amount in excess of $5.0 million;
(ai) are set forth in writing; and
(ii) have been approved by a majority of the members of the Board of Directors; and
(3) that, in the event such transaction Affiliate Transaction involves an amount in excess of $20.0 million, have been determined by a nationally recognized appraisal, accounting or series investment banking firm to be fair, from a financial point of related transactions is on terms that are no less favorable view, 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) The provisions of the foregoing paragraph (a) will not prohibit:
(1) any Restricted Payment permitted to be paid pursuant to Section 4.07 hereof, any Permitted Payment, or any Permitted Investments described in clauses (5) and (6) of the definition thereof;
(2) any issuance of securities, or other payments, awards or grants in cash, securities or otherwise pursuant to, or the funding of, employment arrangements, stock or equity options and stock or equity ownership plans approved by the Board of Directors;
(3) the grant of stock or equity options or similar rights to employees and directors or members of the Board of Directors of the Company or its Subsidiaries pursuant to plans and/or contracts approved by the Board of Directors;
(4) loans or advances to officers, directors or employees of the Company or its Subsidiaries in the ordinary course of business in accordance with past practices of the Company, but in any event not to exceed $5.0 million in the aggregate outstanding at any one time;
(5) the payment of reasonable fees and compensation to, and the provision of indemnity on behalf of, directors, officers, employees, consultants or members of the Board of Directors of the Company or any Subsidiary as determined in good faith by the Company’s Board of Directors;
(6) any transaction between the Company and a Restricted Subsidiary or between Restricted Subsidiaries;
(7) any transaction or any payment pursuant to or contemplated by the provisions of any Merger Transaction Document as in effect on the date of this Indenture, and as the same may be amended or replaced either by a Board of Directors Approval or by any such amendment or replacement that is not materially more disadvantageous to the Holders in any material respect than the original Merger Transaction Document as in effect on the date of this Indenture;
(8) transactions effected as part of a Qualified Receivables Transaction;
(9) the granting or performance of registration rights under a written registration rights agreement approved by the Board of Directors and containing customary terms, taken as a whole;
(10) transactions with Persons solely in their capacity as holders of Indebtedness or Capital Stock of the Company or any of its Restricted Subsidiaries, where such Persons are treated no more favorably than holders of Indebtedness or Capital Stock of the Company or such Restricted Subsidiary generally;
(11) transactions with customers, clients, suppliers, or purchasers or sellers of goods or services in the ordinary course of business;
(12) sales of Capital Stock (other than Disqualified Stock or Preferred Stock of a Subsidiary that is not a Subsidiary Guarantor) for any consideration or any capital contribution;
(13) any agreement as in effect on the Closing Date and any amendment thereto or any replacement thereof or any transaction completed pursuant to such amendment or replacement agreement (including pursuant to any amendment thereto), so long as any such amendment or replacement agreement is not materially more disadvantageous to the Holders of Notes in any material respect than the original agreement as in effect on the Closing Date;
(14) transactions permitted by, and complying with, the provisions of Section 5.01 hereof;
(15) execution, delivery and performance of a tax sharing agreement with respect to any transaction of the charges, taxes or series assessments described in the definition of related transactions involving aggregate value in excess of $3.0 million, the Company delivers an Officers' Certificate to the Trustee certifying that such transaction or series of related transactions complies with clause “Parent Taxes;”
(a16) above, and (c) with respect to any transaction in the ordinary course of business, or series of related transactions involving aggregate value in excess of $7.0 million, either (A) such transaction or series of related transactions has been approved by a majority of the Disinterested Directors Board of the CompanyDirectors, 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: (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 Restricted Subsidiaries, if such transaction is otherwise in compliance with this Indenture and is on fair and reasonable terms; (c) any transaction otherwise permitted by the terms of the section of 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 Restricted Subsidiary; (e) licensing or sublicensing of use of any intellectual property by the Company or any Restricted Subsidiary to and any Restricted Subsidiary Affiliate of the Company controlled by the Company that is a joint venture or similar entity (in which no other Affiliate of the Company, other than a Restricted Subsidiary, owns any Capital Stock); provided that the licensor shall continue and
(17) any agreement to have access to such intellectual property to the extent necessary for the conduct of its respective business; (f) arrangements between the Company and do any Restricted Subsidiary of the Company for the purpose of providing services or employees to such 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 hereofforegoing.
Appears in 1 contract
Sources: Indenture (Del Laboratories Inc)
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 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 Affiliate Transaction are no less favorable to the Company or such Restricted Subsidiary, as the case may be, than those that would could reasonably be reasonably expected to be available obtained in a comparable transaction at such time on an arms’-length basis from a Person that is not an Affiliate of the Company as determined in arm's-length dealings good faith by the Board of Directors of the Company or a member of the senior management of the Company; and
(2) in the event that such Affiliate Transaction involves aggregate payments, or transfers of property or services with an unrelated third partya Fair Market Value, (b) with respect to any transaction or series of related transactions involving aggregate value in excess of $3.0 20.0 million, the Company delivers an Officers' Certificate to the Trustee certifying that terms 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 $7.0 million, either (A) such transaction or series of related transactions has been Affiliate Transaction will be approved by a majority of the Disinterested 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.
(b) The provisions of Section 3.13(a) will not apply to:
(1) Affiliate Transactions with or among the Company and any Restricted Subsidiary or between or among Restricted Subsidiaries;
(2) the entering into, maintaining or performing of any collective bargaining agreement; benefit plan; stock option, share ownership, phantom stock or similar plan; program, contract or other similar arrangement for or with any employee, officer, director or consultant of the Company or its Subsidiaries entered into in the ordinary course of business in good faith by the Company, including vacation, health, insurance, deferred compensation, severance, retirement, savings or other similar plans, programs or arrangements;
(3) the payment of customary fees and indemnities (including under customary insurance) to current and former directors, officers and consultants of the Company and its Subsidiaries;
(4) Affiliate Transactions undertaken pursuant to any contractual obligations or rights in existence on the Issue Date (as in effect on the Issue Date with modifications and extensions thereof not materially adverse to the Company and its Restricted Subsidiaries);
(5) any Restricted Payments made in compliance with Section 3.10 or Permitted Investments;
(6) transactions with customers, clients, suppliers, or purchasers or sellers of goods or services that are Affiliates of the Company solely because the Company, directly or indirectly, owns Capital Stock in, or controls any such Person, in each case in the ordinary course of business and otherwise in compliance with the terms of this Indenture which are, in the reasonable determination of the Board of Directors or senior management of the Company, on terms at least as favorable as might reasonably have been obtained at such time from an unaffiliated party; provided that this clause (6) will not apply to Unrestricted Subsidiaries;
(7) the issuance of Qualified Capital Stock of the Company to any Permitted Holder or to any director, officer, employee or consultant of the Company, any of its direct or indirect parent companies or any of its Restricted Subsidiaries;
(8) loans and advances to officers, directors and employees of the Company or any Restricted Subsidiary for travel, entertainment, moving and other relocation expenses, in each case made in the event there is only one Disinterested Director, by such Disinterested Director, or (B) ordinary course of business in accordance with past practices of the Company or any Restricted Subsidiary, as applicable; and
(9) transactions in which the Company or any of its Restricted Subsidiaries, as the case may be, 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 Independent Financial Advisor stating that the transactions or series of related transactions such transaction is fair to the Company or such Restricted Subsidiary from a financial point of view; providedview or stating that the terms are not materially less favorable, howeverwhen taken as a whole, 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 or its relevant Restricted Subsidiaries, if such Subsidiary than those that would have been obtained in a comparable transaction is otherwise in compliance with this Indenture and is on fair and reasonable terms; (c) any transaction otherwise permitted by the terms of the section of 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 Restricted Subsidiary; (e) licensing or sublicensing of use of any intellectual property by the Company or any such Restricted Subsidiary to any Restricted 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 Restricted Subsidiary of the Company for the purpose of providing services or employees to such 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 hereofan unrelated Person on an arm’s-length basis.
Appears in 1 contract
Sources: Indenture (Stagwell Inc)
Limitation on Transactions with Affiliates. (a) The Company will shall not, and will shall not permit any of its Restricted Subsidiaries 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 less favorable (other than in immaterial respects) 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 comparable 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 $3.0 5 million, 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 $7.0 million, either (A) such transaction or series of related transactions has have been approved by a majority of the Disinterested Directors members of the CompanyBoard of Directors having no personal stake in such Affiliate Transaction and (iii) that, or in the event there is only one Disinterested Directorthat such Affiliate Transaction involves an amount in excess of $15 million, have been determined by such Disinterested Director, a nationally recognized appraisal 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 be fair, from a financial standpoint, to the Company or such and its Restricted Subsidiary from a financial point Subsidiaries.
(b) The provisions of view; provided, however, that this provision Section 4.07(a) shall not apply prohibit (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 and stock ownership plans approved by the Board of Directors, (aiii) the grant of stock options or similar rights to officers, employees, consultants and directors of the Company pursuant to plans approved by the Board of Directors and the payment of amounts or the issuance of securities pursuant thereto, (iv) loans or advances to employees consistent with prudent business practice, but in any event not to exceed $5 million in the aggregate outstanding at any one time, (v) the payment of reasonable fees, compensation and or employee benefit arrangements with to and any officerindemnity provided for the benefit of directors, director officers, consultants or employee employees of the Company, including under Company or any stock option or stock incentive plans, Restricted Subsidiary in the ordinary course of business; , (bvi) any transaction solely between or among the Company and/or any Restricted Subsidiaries, if such transaction is otherwise in compliance with this Indenture and is on fair and reasonable terms; (c) any transaction otherwise permitted by the terms of the section of 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 Restricted Subsidiary; (e) licensing or sublicensing of use of any intellectual property by the Company or any Restricted Subsidiary to any Restricted 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 a Restricted Subsidiary or between Restricted Subsidiaries (SMP being deemed a Restricted Subsidiary solely for purposes of this clause (vi) so long as the Company continues to own, directly or indirectly, at least 40% of the Company for the purpose of providing services or employees to such Restricted Subsidiary; (g) any transaction entered into for the purpose of granting or altering registration rights with respect to the Capital Voting Stock of SMP),(viii) payment of fees and expenses to TPG Partners II, L.P. or its Affiliates in connection with the Company; and (h) any transaction or series of related transactions entered into prior to Transactions on the date hereof.terms described in the Offering Memorandum,
Appears in 1 contract
Sources: Indenture (Semiconductor Components Industries LLC)
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 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 or any of its Restricted Subsidiaries (other than an "Affiliate Transaction") unless
(i) 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 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, Affiliate,
(bii) with respect to any transaction in the event such Affiliate Transaction (or series of related transactions involving Affiliate Transactions) involves an aggregate value amount in excess of $3.0 5.0 million, the terms of such transaction have been approved by at least a majority of the members of the Board of Directors of the Company (and such majority determines that such Affiliate Transaction satisfies the criteria in (a) above) and
(iii) in the event such Affiliate Transaction (or series of related Affiliate Transactions) involves an aggregate amount in excess of $10.0 million, the Company delivers an Officers' Certificate to the Trustee certifying that such transaction (or series of related transactions complies with clause (aAtrium where applicable) above, and (c) with respect to any transaction or series of related transactions involving aggregate value in excess of $7.0 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 received a written opinion of from an independent investment banking firm of national nationally recognized 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 such Affiliate Transaction is fair to the Company or such Restricted Subsidiary Subsidiary, as the case may be, from a financial point of view; provided, however, that this provision .
(b) The requirements of Section 10.15(a) shall not apply to: to (ai) compensation any Restricted Payment or other payment or Investment permitted to be made pursuant to Section 10.14, (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 of employees, officers and directors, consultants and advisors approved by the Board of Directors of the Company or Atrium, (iii) loans or advances to employees in the ordinary course of business of the Company or any officerof its Restricted Subsidiaries, director (iv) any transaction between or employee among the Company and any of its Restricted Subsidiaries or between or among its Restricted Subsidiaries (so long as no Person (other than a Restricted Subsidiary of the Company) that is an Affiliate of the Com- pany has any direct or indirect interest in such Restricted Subsidiary), including under any stock option or stock incentive plans(v) indemnification agreements with, and the payment of fees and indemnities to, directors, officers and employees of the Company and its Restricted Subsidiaries, in each case in the ordinary course of business; , (bvi) transactions pursuant to agreements as in existence on the Issue Date, (vii) any transaction solely between employment, noncompetition or among the Company and/or any Restricted Subsidiaries, if such transaction is otherwise in compliance with this Indenture and is on fair and reasonable terms; (c) any transaction otherwise permitted by the terms of the section of 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 Restricted Subsidiary; (e) licensing or sublicensing of use of any intellectual property confidentiality agreements entered into by the Company or any Restricted Subsidiary to any Restricted 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 Restricted Subsidiaries with its employees in the ordinary course of business; , (fviii) arrangements between the Company and any Restricted Subsidiary issuance of the Company for the purpose of providing services or employees to such Restricted Subsidiary; (g) any transaction entered into for the purpose of granting or altering registration rights with respect to the Capital Stock of the CompanyCompany or Atrium and (ix) any obligations of the Company or Atrium in respect of management fees payable to Ardshiel pursuant to agreements as in effect on the Issue Date; PROVIDED, HOWEVER, (A) so long as any Default under Section 5.01(c) arising by virtue of a default in the performance of any obligation in Sections 10.23 or 10.24 has not been cured or waived and the Company shall not subsequently be in compliance therewith in each case within 90 days after the occurrence thereof, payments pursuant to the agreements described in clause (ix) of this Section 10.15 shall only be permitted in an amount equal to 50% of the amount then due (other than any accrued and unpaid portion); and (hB) any transaction so long as an Event of Default described in clause (a) or series (b) of related transactions entered into prior Section 5.01 has occurred and is continuing, no payments shall be made pursuant to the date hereofAgreements described in clause (ix) of this Section 10.15.
Appears in 1 contract
Sources: Indenture (Atrium Corp)
Limitation on Transactions with Affiliates. (a) The Company Parent will not, and will not permit any of its Restricted Subsidiaries Subsidiary to, directly or indirectly, enter into or conduct 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 Parent, including the Incurrence of Indebtedness by the Parent or any Restricted Subsidiary owing to any such Affiliate which is permitted to be Incurred pursuant to Section 4.03 (other than a "Borrowing from an Affiliate"), and including the Company purchase, sale, lease or exchange of any property or the rendering of any service (together with a Wholly Owned SubsidiaryBorrowing from an Affiliate, 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 terms:
(i) that are no less favorable to the Company Parent 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, as determined by a responsible financial or accounting Officer of the Parent,
(bii) with respect to any transaction or series of related transactions involving that, in the event such Affiliate Transaction, other than a Borrowing from an Affiliate, involves an aggregate value amount in excess of $3.0 25 million, or in the Company delivers event a Borrowing from 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 Affiliate involves an aggregate value amount in excess of $7.0 100 million,
(1) are set forth in writing, either and
(A2) such transaction or series of related transactions has have been approved by a majority of the Disinterested Directors members of the CompanyBoard of Directors having no personal stake in such Affiliate Transaction, or and
(iii) that, in the event there is only one Disinterested Directorsuch Affiliate Transaction other than a Borrowing from an Affiliate involves an amount in excess of $100 million, have been determined by such Disinterested Director, a nationally recognized appraisal 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 be fair, from a financial point standpoint, to the Parent and its Restricted Subsidiaries.
(b) The provisions of view; providedSection 4.07(a) will not prohibit:
(i) any Restricted Payment permitted to be paid pursuant to Section 4.04;
(ii) any issuance of securities, howeveror other payments, that this provision shall not apply 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;
(aiii) compensation the grant of stock options or similar rights to employees and employee benefit arrangements with any officer, director or employee directors of the Company, including under any stock option Parent pursuant to plans approved by the Board of Directors;
(iv) loans or stock incentive plans, advances to employees in the ordinary course of business; business in accordance with past practices of the Parent, but in any event not to exceed $5.0 million in the aggregate outstanding at any one time;
(bv) Stock Purchase Loans, but in any event not to exceed $3.0 million in the aggregate outstanding at any one time;
(vi) the payment of reasonable fees to directors of the Parent and its Subsidiaries who are not employees of the Parent or its Subsidiaries;
(vii) any transaction solely between the Parent and a Wholly Owned Restricted Subsidiary or among the Company and/or any between Wholly Owned Restricted Subsidiaries, if such transaction is otherwise in compliance with this Indenture and is on fair and reasonable terms;
(viii) Permitted Property Swaps; or
(cix) any transaction otherwise permitted by the terms lease of the section of this Indenture described in Section 1009; (d) the execution and delivery of locomotives or payments made under any tax sharing agreement between or among any of the Company rolling stock, and any Restricted Subsidiary; (e) licensing transaction relating to the provision of transportation or sublicensing of use of any intellectual property by transportation-related services, between the Company or any Restricted Subsidiary to Subsidiaries on the one hand and KCSM or any Restricted Subsidiary of its Affiliates on the other hand, if such lease or transaction meets the requirements of Section 4.07(a)(i), as determined in good faith by a responsible financial or accounting officer 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 Restricted Subsidiary of the Company for the purpose of providing services or employees to such 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 hereofParent.
Appears in 1 contract
Sources: Indenture (Kansas City Southern)
Limitation on Transactions with Affiliates. (a) 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) with or for the benefit of any Affiliate of the Company or of a Restricted Subsidiary (other than an "Affiliate Transaction") unless
(i) 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 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, Affiliate,
(bii) with respect to any transaction in the event such Affiliate Transaction (or series of related transactions involving Affiliate Transactions) involves an aggregate value amount in excess of $3.0 2.5 million, the terms of such transaction have been approved by at least a majority of the members of the Board of Directors of the Company (and such majority determines that such Affiliate Transaction satisfies the criteria in (a) above), and
(iii) in the event such Affiliate Transaction (or series of related Affiliate Transactions) involves an aggregate amount in excess of $7.5 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 $7.0 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 received a written opinion of from an independent investment banking firm of national nationally recognized 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 such Affiliate Transaction is fair to the Company or such Restricted Subsidiary Subsidiary, as the case may be, from a financial point of view; provided, however, that this provision .
(b) The requirements of Section 10.15(a) shall not apply to: to (ai) compensation any Restricted Payment or other payment or Investment permitted to be made pursuant to Section 10.14, (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 (iii) loans or advances to employees in the ordinary course of business of the Company or any stock option of the Restricted Subsidiaries, (iv) any transaction between or stock incentive plansamong the Company and any Restricted Subsidiary or between or among Restricted Subsidiaries (so long as no Person (other than a Restricted Subsidiary) that is an Affiliate of the Company has any direct or indirect interest in such Restricted Subsidiary), (v) indemnification agreements with, and the payment of fees and indemnities to, directors, officers and employees of the Company and its Restricted Subsidiaries, in each case in the ordinary course of business; , (bvi) transactions pursuant to agreements as in existence on the Issue Date, (vii) any transaction solely between employment, noncompetition or among the Company and/or any Restricted Subsidiaries, if such transaction is otherwise in compliance with this Indenture and is on fair and reasonable terms; (c) any transaction otherwise permitted by the terms of the section of 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 Restricted Subsidiary; (e) licensing or sublicensing of use of any intellectual property confidentiality agreements entered into by the Company or any Restricted Subsidiary to any Restricted Subsidiary of the Company; provided that Restricted Subsidiaries with its employees in the licensor shall continue to have access to such intellectual property to ordinary course of business, (viii) the extent necessary for the conduct issuance of its respective business; (f) arrangements between the Company and any Restricted Subsidiary of the Company for the purpose of providing services or employees to such 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; , (ix) amounts paid by the Company to Ardshiel on the Issue Date in connection with the Transactions and (hx) any transaction or series obligations of related transactions entered into prior the Company in respect of management fees payable to Ardshiel pursuant to agreements as in effect on the date hereofIssue Date.
Appears in 1 contract
Sources: Indenture (Best Built 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 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 $3.0 million, 2,000,000 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) above), and (c) with respect to any a transaction or series of related transactions involving aggregate payments or value in excess of equal to or greater than $7.0 million5,000,000, either (A) such transaction or series of related transactions has shall have been approved by a majority ma- jority of the Disinterested Members of the Board of Directors of the Company. Notwithstanding the foregoing, or 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 Restricted Subsidiary from a financial point of view; provided, however, that 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 Restricted Subsidiaries, if such transaction is otherwise dividends made in compliance with this Indenture Section 10.9, (iv) 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 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 Restricted 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, (v) the incurrence of intercompany Indebtedness which constitutes Permitted Indebtedness, (vi) transactions pursuant to any Restricted Subsidiary agreements in effect on the Issue Date, (vii) the purchase of equipment for its Fair Market Value from Terex Corporation or its Affiliates in the Company; provided that 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 between business of each of Terex Corporation and the Company and any Restricted Subsidiary (viii) transactions described in, or permitted by, clauses (vii) and (viii) of the Company for the purpose final paragraph of providing services or employees to such 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 hereofSection 10.9.
Appears in 1 contract
Sources: Indenture (United Rentals Inc /De)
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 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, party and (b) with respect to any transaction or series of related transactions involving aggregate value payments in excess of $3.0 million2,000,000, 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 $7.0 million, either (A) such transaction or series of related transactions is or has been approved by a majority of the Disinterested Directors of the CompanyDirectors; provided, or however, in the event there is only one no members of the Board of Directors are Disinterested DirectorDirectors with respect to such transaction or series of transactions, by such Disinterested Director, or (B) the Company delivers to the Trustee a written opinion of an a nationally recognized investment banking or accounting firm of national standing or other recognized independent expert with experience appraising the terms and conditions of the type of appraiser stating 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 Restricted Subsidiary from a financial point of view; provided, howeverfurther, that this provision shall not apply to:
(a) any transaction with an employee, officer or member of the board of directors of Holding, the Company or any Subsidiary entered into in the ordinary course of business (including compensation and or employee benefit arrangements with any officeremployee, director officer or employee member of the Companyboard of directors of Holding, the Company or any Subsidiary);
(b) any transaction arising out of agreements in existence on the date of this Indenture;
(c) any transaction permitted under Section 4.08 hereof (including under but not limited to any stock option Permitted Investment, Permitted Payment or stock incentive plansother transaction excluded from the definition of "Restricted Payment" in Section 4.08 hereof);
(d) payment to any of the Sponsors and their respective Affiliates of fees in an aggregate amount not to exceed $1,000,000 in any fiscal year plus all reasonable out-of-pocket expenses incurred by any of the Sponsors and their respective Affiliates in connection with its performance of management consulting, monitoring, financial advisory or other services with respect to Holding, the Company and its Subsidiaries;
(e) the Consulting Agreements and the Indemnification Agreements (in each case as in effect, or entered into after, on the Issue Date or as subsequently amended, waived, supplemented or otherwise modified in accordance with the requirements of this paragraph (excluding this clause (e)) and any payments made pursuant thereto;
(f) the Transaction and all transactions in connection therewith (including but not limited to the financing thereof);
(g) loans and advances (or guarantees in respect thereof and payments thereunder) made to officers or employees of Holding, the Company or any Subsidiary, or guarantees made on their behalf (and payments thereunder), (x) in respect of travel, entertainment and moving-related expenses incurred in the ordinary course of business, or (y) in respect of moving-related expenses incurred in connection with any closing or consolidation of any facility; and
(bh) any transaction solely between transactions with customers, clients, suppliers or among purchasers or sellers of goods or services, in each case in the Company and/or any Restricted Subsidiaries, if such transaction is ordinary course of business and otherwise in compliance with this Indenture and is on fair and reasonable terms; (c) any transaction otherwise permitted by the terms of the section of 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 Restricted Subsidiary; (e) licensing or sublicensing of use of any intellectual property by Indenture, which are fair to the Company or any Restricted the relevant Subsidiary to any Restricted Subsidiary in the reasonable determination of the Company; provided that Board of Directors or the licensor shall continue to have access to such intellectual property to the extent necessary for the conduct senior management thereof, or are on terms no less favorable than would be available in a comparable transaction in arm's-length dealings with an unrelated third party. For purposes of its respective business; (f) arrangements between the Company and any Restricted Subsidiary of the Company for the purpose of providing services or employees to such 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) this Section 4.12, any transaction or series of related transactions entered into prior with any Affiliate shall be deemed to have satisfied the date hereofstandards set forth in clause (a) of this Section if such transaction or series of related transactions is approved by a majority of the Disinterested Directors.
Appears in 1 contract
Sources: Indenture (Remington Arms Co Inc/)
Limitation on Transactions with Affiliates. The Company will shall not, and will shall not permit any of its Restricted 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 or any Restricted Subsidiary (other than the Company or a Wholly Owned Restricted Subsidiary) (collectively, "Interested Persons"), 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 or such Restricted Subsidiary, as the case may be, than those that would be reasonably expected could have been able to be available obtained in a comparable an arm's- length transaction in arm's-length dealings with an unrelated third partyparties that are not Interested Persons, (bii) with respect to any transaction or series of related transactions involving aggregate value in excess of consideration equal to or greater than $3.0 million1,000,000, the Company delivers has delivered an Officers' Certificate to the Debenture Trustee certifying that such transaction or series of related transactions complies with clause (ai) above, above and (ciii) with respect to any transaction or series of related transactions involving aggregate value in excess of consideration equal to or greater than $7.0 million5,000,000, either (A) such transaction or series of related transactions (x) has been approved by the Board of Directors of the Company (including a majority of the Disinterested Directors of the Company, or in the event there is only one Disinterested Director, by such Disinterested Director, ) or (By) the Company delivers to the Trustee has obtained a written opinion of an from a nationally recognized investment banking or valuation 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 or such its Restricted Subsidiary Subsidiary, as the case may be, from a financial point of view; provided, however, that this provision Section 1011 shall not apply to: restrict (a1) the Company 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 Restricted Subsidiaries, if such transaction is otherwise in compliance with this Indenture and is on fair and reasonable terms; (c) any transaction otherwise permitted by the terms of the section of 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 Restricted Subsidiary; (e) licensing or sublicensing of use of any intellectual property by the Company or any Restricted Subsidiary who are not employees of the Company or any Restricted Subsidiary, (2) the payment of management fees to Permitted Holders in an aggregate amount not to exceed $500,000 per year, (3) loans and advances to officers, directors and employees of the Company or any Restricted Subsidiary in the ordinary course of business in accordance with the past practices 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 or any Restricted Subsidiary of not to exceed $3,000,000 in the Company for the purpose of providing services or employees to such Restricted Subsidiary; aggregate outstanding at any time, (g4) any transaction entered into for transactions made in compliance with Section 1009, (5) the purpose issuance and sale of granting or altering registration rights with respect to the Qualified Capital Stock of the Company; Company to Persons who are stockholders of the Company at the time of such issuance and sale and (h6) the performance of any transaction or series of related transactions entered into prior written agreement as in effect on the Issuance Date and as amended from time to time, provided that any such amendment is not less favorable in any material respect to the date hereof.Company or any Restricted Subsidiary than the terms of such agreement as in effect on the Issuance Date. 100
Appears in 1 contract
Sources: Exchange Indenture (Tmil Corp)
Limitation on Transactions with Affiliates. (a) The Company will shall not, and will shall not permit any of its Restricted Subsidiaries 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 less favorable (other than in immaterial respects) 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 comparable 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 $3.0 5.0 million, 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 $7.0 million, either (A) such transaction or series of related transactions has have been approved by a majority of the Disinterested Directors members of the CompanyBoard of Directors having no personal stake in such Affiliate Transaction and (iii) that, or in the event there is only one Disinterested Directorthat such Affiliate Transaction involves an amount in excess of $15.0 million, have been determined by such Disinterested Director, a nationally recognized appraisal 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 be fair, from a financial standpoint, to the Company or such and its Restricted Subsidiary from a financial point Subsidiaries.
(b) The provisions of view; provided, however, that this provision Section 4.07(a) shall not apply prohibit (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 and stock ownership plans approved by the Board of Directors, (aiii) the grant of stock options or similar rights to officers, employees, consultants and directors of the Company pursuant to plans approved by the Board of Directors and the payment of amounts or the issuance of securities pursuant thereto, (iv) loans or advances to employees in the ordinary course of business permitted by law and consistent with prudent business practice, but in any event not to exceed $5.0 million in the aggregate outstanding at any one time, (v) the payment of reasonable fees, compensation and or employee benefit arrangements with to and any officerindemnity provided for the benefit of directors, director officers, consultants or employee employees of the Company, including under Company or any stock option or stock incentive plans, Restricted Subsidiary in the ordinary course of business; , (bvi) any transaction solely between or among the Company and/or any and a Restricted Subsidiary or between Restricted Subsidiaries, if such transaction is (vii) the payment of management, consulting and advisory fees to TPG Partners II, L.P. or its Affiliates made pursuant to any financial advisory, financing, underwriting or placement agreement or in respect of other investment banking activities, including in connection with acquisitions or divestitures, in an amount not to exceed $2.0 million in any calendar year and any related out-of-pocket expenses, (viii) transactions with customers, suppliers, contractors, joint venture partners or purchasers or sellers of goods or services, in each case which are in the ordinary course of business (including pursuant to joint venture agreements) and otherwise in compliance with the terms of this Indenture Indenture, and is which are fair to the Company or its Restricted Subsidiaries, as applicable, in the reasonable determination of the Board of Directors or the senior management of the Company or its Restricted Subsidiaries, as applicable 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, or (cix) any transaction otherwise effected in connection with a Receivables Facility permitted by the terms of the section of this Indenture described in under 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 Restricted Subsidiary; (e) licensing or sublicensing of use of any intellectual property by the Company or any Restricted Subsidiary to any Restricted 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 Restricted Subsidiary of the Company for the purpose of providing services or employees to such 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 hereof4.03.
Appears in 1 contract
Sources: Indenture (On Semiconductor Corp)
Limitation on Transactions with Affiliates. (a) The Company will not, and will not permit any of its Restricted Subsidiaries 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”) involving an aggregate amount in excess of $10.0 million 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 terms:
(1) 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-arm’s length dealings with a Person who is not such an unrelated third partyAffiliate; and
(2) 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 $3.0 50.0 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 $7.0 million, either (A) such transaction or series of related transactions has have been approved by a majority of the Disinterested Directors members of the Company, or Board of Directors having no personal stake in the event there is only one Disinterested Director, by such Disinterested Director, or Affiliate Transaction.
(Bb) 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 The provisions 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: foregoing paragraph (a) compensation and will not prohibit:
(1) any Permitted Investment or any Restricted Payment permitted to be paid or made pursuant to Section 4.07;
(2) any employment, consulting, severance or termination agreements, employee benefit plans or arrangements with (including pension plans, health and life insurance plans, retiree medical plans, deferred compensation plans, indemnification agreements, stock options and restricted stock and stock ownership plans) or related trust agreements or similar arrangements, and any officergrant or issuance of securities, director or employee other payments, awards or grants in cash, securities or otherwise pursuant to, or the funding of, any of the Company, including under any stock option foregoing;
(3) loans or stock incentive plans, advances to employees in the ordinary course of business; business of the Company, but in any event not to exceed $5.0 million in the aggregate at any one time outstanding;
(b4) the payment of reasonable fees to directors of the Company or its Subsidiaries;
(5) any transaction solely between or among the Company and/or any Restricted Subsidiaries, if such transaction is otherwise in compliance with this Indenture and is on fair and reasonable terms; (c) any transaction otherwise permitted by the terms of the section of 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 Restricted Subsidiary; (e) licensing or sublicensing of use of any intellectual property by the Company or any Restricted Subsidiary to any Restricted 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 a Restricted Subsidiary or between Restricted Subsidiaries;
(6) the provision by Persons who may be deemed Affiliates of the Company of investment advisory services to the Company or its Restricted Subsidiaries with respect to the Company’s or its Restricted Subsidiaries’ employee benefit plans;
(7) transactions pursuant to any contract, agreement or instrument in effect on the Issue Date, as amended, modified or replaced from time to time, so long as the amended, modified or new agreements, taken as a whole, are no less favorable to the Company and the Restricted Subsidiaries than those in effect on the Issue Date;
(8) sales, contributions, conveyances and other transfers of Receivables and related assets of the type specified in the definition of Qualified Receivables Transaction to a Receivables Subsidiary or any other similar transactions in connection with any Qualified Receivables Transaction;
(9) transactions with customers, clients, suppliers or purchasers or sellers of goods or services in the ordinary course of business and consistent with past business practices;
(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) any transaction with a joint venture, partnership, limited liability company or other entity that would constitute an Affiliate Transaction solely because the Company or a Restricted Subsidiary owns an Equity Interest in such joint venture, partnership, limited liability company or other entity;
(12) any merger, consolidation or reorganization of the Company or a Restricted Subsidiary (otherwise permitted by this Indenture) with a Restricted Subsidiary solely for the purpose of providing services changing the domicile of the Company or employees to such a Restricted Subsidiary; or
(g13) any transaction entered into for the purpose pledges of granting or altering registration rights with respect to the Capital Stock Equity Interests of the Company; and (h) any transaction or series of related transactions entered into prior to the date hereofUnrestricted Subsidiaries.
Appears in 1 contract
Sources: Indenture (Orbital Atk, Inc.)
Limitation on Transactions with Affiliates. (a) The Company will shall not, and will shall not permit any of its Restricted Subsidiaries 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 less favorable (other than in immaterial respects) 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 comparable 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 $3.0 5 million, 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 $7.0 million, either (A) such transaction or series of related transactions has have been approved by a majority of the Disinterested Directors members of the CompanyBoard of Directors having no personal stake in such Affiliate Transaction and (iii) that, or in the event there is only one Disinterested Directorthat such Affiliate Transaction involves an amount in excess of $15 million, have been determined by such Disinterested Director, a nationally recognized appraisal 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 be fair, from a financial standpoint, to the Company or such and its Restricted Subsidiary from a financial point Subsidiaries.
(b) The provisions of view; provided, however, that this provision Section 4.07(a) shall not apply prohibit (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 and stock ownership plans approved by the Board of Directors, (aiii) the grant of stock options or similar rights to officers, employees, consultants and directors of the Company pursuant to plans approved by the Board of Directors and the payment of amounts or the issuance of securities pursuant thereto, (iv) loans or advances to employees consistent with prudent business practice, but in any event not to exceed $5 million in the aggregate outstanding at any one time, (v) the payment of reasonable fees, compensation and or employee benefit arrangements with to and any officerindemnity provided for the benefit of directors, director officers, consultants or employee employees of the Company, including under Company or any stock option or stock incentive plans, Restricted Subsidiary in the ordinary course of business; , (bvi) any transaction solely between or among the Company and/or any and a Restricted Subsidiary or between Restricted Subsidiaries, if such transaction is (vii) the payment of management, consulting and advisory fees to TPG Partners II, L.P. or its Affiliates made pursuant to any financial advisory, financing, underwriting or placement agreement or in respect of other investment banking activities, including in connection with acquisitions or divestitures, in an amount not to exceed $2 million in any calendar year and any related out-of-pocket expenses, (viii) transactions with customers, suppliers, contractors, joint venture partners or purchasers or sellers of goods or services, in each case which are in the ordinary course of business (including pursuant to joint venture agreements) and otherwise in compliance with the terms of this Indenture Indenture, and is which are fair to the Company or its Restricted Subsidiaries, as applicable, in the reasonable determination of the Board of Directors or the senior management of the Company or its Restricted Subsidiaries, as applicable 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, or (cix) any transaction otherwise effected in connection with a Receivables Facility permitted by the terms of the section of this Indenture described in under 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 Restricted Subsidiary; (e) licensing or sublicensing of use of any intellectual property by the Company or any Restricted Subsidiary to any Restricted 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 Restricted Subsidiary of the Company for the purpose of providing services or employees to such 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 hereof4.03.
Appears in 1 contract
Sources: Indenture (On Semiconductor Corp)
Limitation on Transactions with Affiliates. (1) The Company will shall not, and will shall not cause or 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 Permitted Affiliate Transactions and (ay) such transaction or series of related transactions is Affiliate Transactions on terms that are no less favorable to the Company or such Restricted Subsidiary, as the case may be, Subsidiary than those that would be reasonably expected that
(2) The restrictions set forth in paragraph (1) of this Section 4.11 shall not apply to be available (each of the following actions set forth in a comparable transaction in arm's-length dealings with an unrelated third partyclauses (i), (bii), (iii), (iv) with respect to any transaction or series of related transactions involving aggregate value in excess of $3.0 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 (cv) with respect being referred to any transaction as a "Permitted Affiliate Transaction"): (i) reasonable fees and compensation paid to and indemnity provided on behalf of, officers, directors, employees, consultants or series agents of related transactions involving aggregate value in excess of $7.0 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 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 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, 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 businesssenior management; (bii) any transaction solely transactions between or among the Company and/or and any Restricted 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 prohibited under this Indenture and is on fair and reasonable termsSupplemental 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 Supplemental Indenture; and (v) transactions between or among the Company or any Subsidiaries of the Company and the Land Partnership, provided such transactions are permitted by and are effected in accordance with the terms of the section of this Indenture described in Section 1009; (d) the execution and delivery of or payments made under any tax sharing agreement between or among any Partnership Agreement of the Company Land Partnership and any Restricted Subsidiary; (e) licensing or sublicensing the By-laws of use of any intellectual property by Company, in each case, as in effect on the Company or any Restricted Subsidiary to any Restricted 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 Restricted Subsidiary of the Company for the purpose of providing services or employees to such 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 hereofBase Date.
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 make any payment to, or indirectlysell, lease, transfer or otherwise dispose of any of its properties or assets to, or purchase any property or assets from, or enter into or make or amend any transaction transaction, contract, agreement, understanding, loan, advance or series guarantee with (which term, for purposes of related transactions (includingthis Section 4.11, without limitation, the sale, purchase, exchange or lease of assets, property or services) with or shall include "for the benefit of of" where appropriate in the context) any Affiliate of the Company (other than each, an "Affiliate Transaction") involving aggregate payments or consideration in excess of $25.0 million, unless:
(1) 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 Affiliate Transaction is on terms that are no not materially less favorable to the Company or such the relevant Restricted Subsidiary, taken as the case may bea whole, than those that would be reasonably expected to be available have been obtained in a comparable transaction in arm's-length dealings by the Company or such Restricted Subsidiary with an unrelated third party, Person; and
(b2) the Company delivers to the Trustee with respect to any transaction or series of related transactions Affiliate Transaction involving aggregate value payments or consideration in excess of $3.0 75.0 million, a resolution of the Board of Directors of the Company delivers set forth in an Officers' Certificate to the Trustee certifying that such transaction or series of related transactions Affiliate Transaction complies with clause (a) above, this Section 4.11 and (c) with respect to any transaction or series of related transactions involving aggregate value in excess of $7.0 million, either (A) that such transaction or series of related transactions Affiliate Transaction has been approved by a majority of the Disinterested members of the Board of Directors of the Company.
(b) The following items will be deemed not to be Affiliate Transactions and, therefore, will not be subject to the provisions of clause (a) of this Section 4.11:
(1) any employment, consulting or other compensation arrangement or agreement, employee or compensation benefit plan, officer or director compensation or indemnification agreement or any similar arrangement entered into by the Company or any of its Restricted Subsidiaries in the ordinary course of business and payments pursuant thereto;
(2) transactions between or among the Company and/or its Restricted Subsidiaries;
(3) transactions with a Person that is an Affiliate of the Company solely because the Company owns, directly or through a Restricted Subsidiary, a Capital Interest in, or controls, such Person;
(4) [reserved];
(5) any issuance or sale of Qualified Capital Interests of the Company and the granting of registration and other customary rights in connection therewith;
(6) Restricted Payments that do not violate the provisions of Section 4.07 hereof and the definition of "Permitted Investments" and payments described in, but excluded from, the definitions of "Restricted Payment" and "Permitted Investments" and their component definitions;
(7) the grant of stock options, restricted stock, stock appreciation rights, phantom stock awards or similar rights or Capital Interests to directors, officers, employees and consultants that are approved by the Board of Directors of the Company or any of its Restricted Subsidiaries in the event there is only one Disinterested Director, by such Disinterested Directorordinary course of business;
(8) the existence of, or (B) the performance by the Company or any of its Restricted Subsidiaries under the terms of, any agreement or instrument as in effect on the Issue Date or any amendment thereto (so long as any such agreement or instrument together with all amendments thereto, taken as a whole, is not more disadvantageous to the Holders of the Notes in any material respect than the original agreement or instrument as in effect on the Issue Date) or any transaction contemplated thereby;
(9) transactions that are necessary or advisable in order to comply with Regulatory Requirements;
(10) transactions in which the Company or any of its Restricted Subsidiaries, as the case may be, 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 or such Restricted Subsidiary from a financial point of view; providedview or stating that the terms are not materially less favorable to the Company or its relevant Restricted Subsidiary than those that would have been obtained in a comparable transaction by the Company or such Restricted Subsidiary with an unrelated Person;
(11) transactions with customers, howeverclients, suppliers, or purchasers or sellers of goods or services, in each case in the ordinary course of business that this provision shall not apply to: (a) compensation are fair to the Company and employee benefit arrangements with any officer, director or employee its Restricted Subsidiaries in the good faith judgment of the Company, including or are on terms at least as favorable as might reasonably have been obtained at such time from an unaffiliated party;
(12) any transaction with a Qualified Securitization Entity that is not prohibited under this Indenture;
(13) payments of reasonable fees, expenses and indemnity to, and loans (or cancellation of loans) to, former, current and future employees, officers, directors, management personnel or consultants of the Company or any of its Subsidiaries and employment agreements, collective bargaining agreements, stock option or stock incentive plans, benefit plans, other similar arrangements and related trust arrangements with such Persons which, in each case, are approved by the Company in good faith;
(14) payments to and from, and transactions with, any Joint Venture in the ordinary course of business; ;
(b15) transactions with Persons solely in their capacity as holders of a minority of any class of Debt or Capital Interests of the Company or any of its Restricted Subsidiaries, where such Persons are treated no more favorably than holders of such class of Debt or Capital Interests of the Company or such Restricted Subsidiary generally;
(16) any transaction solely between or among with any Person who is not an Affiliate of the Company and/or immediately before the consummation of such transaction that becomes an Affiliate as a result of such transaction;
(17) transactions permitted by, and complying with, Section 5.01 hereof;
(18) transactions between the Company or any of its Restricted Subsidiaries and any Person, a director of which is also a director of the Company or any of its Subsidiaries, if such transaction is otherwise in compliance with this Indenture and is on fair and reasonable terms; (c) any transaction otherwise permitted by the terms of the section of this Indenture described in Section 1009; (d) the execution and delivery of or payments made under any tax sharing agreement between or among any director abstains from voting as a director of the Company and or such Subsidiary, as the case may be, on any Restricted Subsidiarymatter involving such other Person; and
(e19) licensing pledges of Capital Interests in, or sublicensing of use of any intellectual property by the Company or any Restricted Subsidiary to any Restricted 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 Restricted Subsidiary of the Company for the purpose of providing services or employees to such 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 hereofDebt of, Unrestricted Subsidiaries.
Appears in 1 contract
Limitation on Transactions with Affiliates. (a) The Company Issuer will not, and will not permit any of its Restricted Subsidiaries Subsidiary to, directly or indirectly, enter into or conduct any transaction or series of related transactions (includingincluding the purchase, without limitation, the sale, purchaselease or exchange of any property, exchange employee compensation arrangements or lease the rendering of assets, property or servicesany service) with or for the benefit of any Affiliate of the Company Issuer (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 in good faith and in writing and (a) such transaction or series of related transactions is on terms that transaction, taken as a whole, 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 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, Affiliate; (bii) 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 $3.0 5.0 million, the Company delivers an Officers' Certificate to the Trustee certifying that terms of such transaction or series of related transactions complies with clause (a) above, are set forth in writing and (c) with respect to any transaction or series of related transactions involving aggregate value in excess of $7.0 million, either (A) such transaction or series of related transactions has shall have been approved by a majority of the Disinterested Directors members of the Company, or Board of Directors having no personal stake in such Affiliate Transaction (and such majority determines that such Affiliate Transaction satisfies the criteria in clause (i) above) and (iii) in the event there is only one Disinterested Directorsuch Affiliate Transaction involves an aggregate amount in excess of $10.0 million, by such Disinterested Director, or (B) the Company delivers to the Trustee Issuer has received a written opinion of an from a nationally recognized 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 such Affiliate Transaction is fair to the Company or such Issuer and its Restricted Subsidiary Subsidiaries from a financial point of view; .
(b) The provisions of paragraph (a) of this Section 4.8 shall not prohibit (i) any Restricted Payment permitted to be made pursuant to Section 4.5, (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 and stock ownership plans approved by the Board of Directors, or any arrangements relating thereto, (iii) the grant of stock options or similar rights to employees and directors of the Issuer pursuant to plans approved by the Board of Directors, (iv) loans or advances to employees in the ordinary course of business in accordance with the past practices of the Issuer or its Restricted Subsidiaries, (v) the payment of reasonable fees to directors of the Issuer and its Restricted Subsidiaries who are not employees of the Issuer or its Restricted Subsidiaries, (vi) any transaction between the Issuer and a Restricted Subsidiary or between Restricted Subsidiaries, (vii) the issuance or sale of any Capital Stock (other than Disqualified Stock) of the Issuer, (viii) any transaction consummated pursuant to the terms of any agreement described in the Issuer's Form 10-K for the year ended December 31, 2002 or Forms 10-Q or Forms 8-K filed prior to the Issue Date, including the exhibits and documents included by reference therein, giving effect to any subsequent supplements, amendments, modifications or alterations thereof that are approved by the disinterested members of the Board of Directors, (ix) any transaction in the ordinary course of business between the Issuer or any Re- stricted Subsidiary and any Affiliate of the Issuer relating to the acquisition, management, construction, leasing or licensing of Tower Assets, provided, however, that this provision shall not apply to: such transaction is on terms that are no less favorable, taken as a whole, to the Issuer or the relevant Restricted Subsidiary than those that could have been obtained in a comparable transaction by the Issuer or such Restricted Subsidiary with an unrelated Person or is otherwise on terms that, taken as a whole, the Issuer has determined to be fair to the Issuer or the relevant Restricted Subsidiary) and (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; (bx) any transaction solely between the Issuer or among the Company and/or any Restricted Subsidiaries, if such transaction is otherwise in compliance with this Indenture and is on fair and reasonable terms; (c) any transaction otherwise permitted by the terms of the section of 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 its Restricted Subsidiaries and any Restricted Subsidiary; (e) licensing or sublicensing of use of any intellectual property by the Company or any Restricted Subsidiary to any Restricted 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 Restricted Subsidiary of the Company for the purpose of providing services Affiliates involving ordinary course investment banking, commercial banking or employees to such 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 hereofactivities.
Appears in 1 contract
Sources: Indenture (Spectrasite 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 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 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 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 at the time of such transaction in arm's-length dealings with a Person who is not such an unrelated third party, Affiliate; (b2) with respect to any transaction or series of related transactions involving in the event such Affiliate Transaction involves an aggregate value consideration in excess of $3.0 million5,000,000, the Company delivers an Officers' Certificate to the Trustee certifying that terms 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 $7.0 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 CompanyCompany and by a majority of the members of such Board having no personal stake in such transaction, if any (and such majority or majorities, as the case may be, determines that such Affiliate Transaction satisfies the criteria in clause (1) above); and (3) in the event there is only one Disinterested Director, by such Disinterested Director, or (B) Affiliate Transaction involves an aggregate consideration in excess of $10,000,000 the Company delivers to the Trustee has received a written opinion of from an independent investment banking banking, accounting or appraisal firm of national nationally recognized standing or other recognized independent expert with experience appraising the terms and conditions of the type of that such Affiliate Transaction is not materially less favorable than those that might reasonably have been obtained in a comparable transaction or series of related transactions for which at such time on an opinion is required stating that the transactions or series of related transactions is fair to the Company or such Restricted Subsidiary arm's-length basis from a financial point Person that is not an Affiliate.
(b) The provisions of view; provided, however, that paragraph (a) of this provision Section 3.9 shall not apply to: (a1) any Restricted Payment (other than a Restricted Investment) permitted to be made pursuant to Section 3.4; (2) any issuance of securities, or other payments, awards or grants in cash, securities or otherwise pursuant to, or the funding of, employment agreements and other compensation and employee benefit arrangements with any officerarrangements, director or employee options to purchase Capital Stock of the Company, including under any restricted stock option or stock plans, long-term incentive plans, stock appreciation rights plans, participation plans or similar employee benefits plans and/or indemnity provided on behalf of officers and employees approved by the Board of Directors; (3) to the extent permitted by law, loans or advances to employees or directors in the ordinary course of businessbusiness of the Company or any of its Restricted Subsidiaries but in any event not to exceed $5,000,000 in the aggregate outstanding at any one time with respect to all loans or advances made since the Issue Date; (b4) any transaction solely (i) between or among the Company and/or any and a Restricted Subsidiaries, if such transaction is otherwise in compliance with this Indenture Subsidiary (other than a Receivables Entity) or between Restricted Subsidiaries (other than a Receivables Entity or Receivables Entities) and is on fair and reasonable terms; (cii) any transaction otherwise permitted Guarantees issued by the terms of Company or a Restricted Subsidiary for the section of this Indenture described in Section 1009; (d) the execution and delivery of or payments made under any tax sharing agreement between or among any benefit of the Company and any or a Restricted Subsidiary, as the case may be, in accordance with Section 3.3; (e5) licensing the payment of reasonable and customary fees paid to, and indemnity provided on behalf of, employees or sublicensing directors of use of any intellectual property by the Company or any Restricted Subsidiary of the Company in connection with providing services to the Company or any Restricted Subsidiary of the Company; provided (6) the performance of obligations of the Company or any of its Restricted Subsidiaries under the terms of any agreement to which the Company or any of its Restricted Subsidiaries is a party as of or on the Issue Date and identified on Schedule 3.9(b) hereto as these agreements may be amended, modified, supplemented, extended or renewed from time to time; provided, however, that any future amendment, modification, supplement, extension or renewal entered into after the licensor Issue Date shall continue to have access to such intellectual property be permitted to the extent necessary for that its terms are not more disadvantageous to the conduct Holders than the terms of its respective businessthe agreements in effect on the Issue Date; (f7) arrangements between the Company sales or other transfers or dispositions of accounts receivable and other related assets customarily transferred in an asset securitization transaction involving accounts receivable to a Receivables Entity in a Qualified Receivables Transaction, and acquisitions of Permitted Investments in connection with a Qualified Receivables Transaction; and (8) any Restricted Subsidiary transaction with a customer or supplier of the Company for or a Restricted Subsidiary so long as such transaction is in the purpose ordinary course of providing services business and the terms of such transaction are no less favorable to the Company or employees to such Restricted Subsidiary, as the case may be, than those that could be obtained in a comparable transaction at the time of such transaction in arm's length dealings with a Person who is not an Affiliate; (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 provided that, if such transaction or a series of related transactions entered into prior to exceeds $5,000,000, the date hereofterms of such transaction must be approved by a majority of the members of the Board of Directors of the Company and by a majority of the members of such Board having no personal stake in such transaction.
Appears in 1 contract
Sources: Indenture (Quiksilver Inc)
Limitation on Transactions with Affiliates. (a) The Company will shall not, and will shall not permit any of its Restricted Subsidiaries Subsidiary to, directly conduct any business 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 (other than an "Affiliate Transaction"), unless:
(1) the Company or a Wholly Owned Subsidiaryterms of such Affiliate Transaction are:
(i) unless such transaction or series of related transactions is entered into set forth in good faith and in writing and writing, and
(aii) 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 party, Affiliate of the Company,
(b) if such Affiliate Transaction involves aggregate payments or value in excess of $10 million, the Board of Directors of the Company (including a majority of the disinterested members of the Board of Directors of the Company or, if there is only one disinterested director, such disinterested director) approves such Affiliate Transaction and, in its good faith judgment, believes that such Affiliate Transaction complies with respect clause (a)(1)(ii) of this Section 4.13 as evidenced by a Board Resolution, and
(c) if such Affiliate Transaction involves aggregate payments or value in excess of $50 million, the Company obtains a written opinion from an Independent Financial Advisor 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 and the Restricted Subsidiaries, taken as a whole.
(d) Notwithstanding the foregoing limitation, the Company or any Restricted Subsidiary may make, enter into or suffer to exist the following:
(1) any transaction or series of related transactions involving aggregate value in excess of $3.0 million, between the Company delivers an Officersand one or more Restricted Subsidiaries or between 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 compensation (including awards or grants in cash, securities or other payments) for the personal services of officers, directors, consultants and employees of the Company or any of the Restricted Subsidiaries in the ordinary course of business;
(4) payments 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' Certificate and officers' indemnification agreements and retirement or savings plans, stock option, stock ownership and similar plans so long as the Board of Directors of the Company in good faith shall have approved the terms thereof and deemed the services theretofore or thereafter to be performed for such compensation to be fair consideration therefor;
(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 $50 million in the aggregate at any one time outstanding;
(6) any agreement as in effect on the Issue Date or any amendment to any such agreement (so long as any such amendment is not disadvantageous to the Trustee certifying Holders of the Senior Notes in any material respect) or any transaction contemplated thereby;
(7) 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 Company or its Restricted Subsidiaries or are on terms no less favorable as might reasonably have been obtained at such time from an unaffiliated party; provided 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 $7.0 million, either (A) such transaction or series of related transactions has been are approved by a majority of the Disinterested Board of Directors of the Company in good faith (including a majority of disinterested directors of the Board of Directors of the Company, or in the event if there is only one Disinterested Directordisinterested director, by such Disinterested Director, or director);
(B8) the issuance and sale of Capital Stock (other than Disqualified Stock) 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: (a) compensation and employee benefit arrangements with any officer, director or employee of the Company, including under any stock option or stock incentive plans, ;
(9) transactions in the ordinary course of business; (b) any transaction solely between or among the Company and/or any Restricted Subsidiaries, if such transaction is otherwise in compliance connection with this Indenture and is on fair and reasonable terms; (c) any transaction otherwise permitted by the terms of the section of 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 Restricted Subsidiary; (e) licensing or sublicensing of use of any intellectual property by the Company or any of its Restricted Subsidiary Subsidiaries to ▇▇▇▇▇▇▇ Sachs & Co. or any Restricted Subsidiary of their respective affiliates in connection with any management, financial advisory, financing, derivative, underwriting or placement services or any other investment banking, banking, asset management or similar services including principal, interest and fees on loans which payments are approved by a majority of the Board of Directors of the Company in good faith (including a majority of disinterested directors of the Board of Directors of the Company, or if there is only one disinterested director, such director); provided that the licensor shall continue and
(10) sales or transfer of dispositions of Receivables and Related Assets to have access to such intellectual property to the extent necessary for the conduct a Securitization Entity and acquisitions of its respective business; (f) arrangements between the Company and any Restricted Subsidiary of the Company for the purpose of providing services or employees to such 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 hereofInvestments in connection therewith.
Appears in 1 contract
Sources: Indenture (Donnelley R H Inc)
Limitation on Transactions with Affiliates. (a) The Company will not, and will not permit any of its Restricted Subsidiaries 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) involving payments in excess of $10,000,000 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 terms:
(1) 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-arm’s length dealings with a Person who is not such an unrelated third partyAffiliate,
(2) 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 $3.0 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 $7.0 million, either 25,000,000,
(A) such transaction or series of related transactions has are set forth in writing, and
(B) have been approved by a majority of the Disinterested Directors members of the CompanyBoard of Directors having no personal stake in such Affiliate Transaction, or and
(3) that, in the event there is only one Disinterested Directorsuch Affiliate Transaction involves an amount in excess of $100,000,000, have been determined by such Disinterested Director, a nationally recognized appraisal 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 be fair, from a financial point of view, to the Company and its Restricted Subsidiaries.
(b) The provisions of Section 4.11(a) will not prohibit:
(1) any Permitted Investment or any Restricted Payment permitted to be paid or made pursuant to Section 4.07,
(2) any issuance of shares of Capital Stock of the Company,
(3) any agreement between any Person and an Affiliate of such Person existing at the time such Person is acquired by or merged or consolidated with or into the Company or a Restricted Subsidiary, as such agreement may be amended, modified, supplemented, extended or renewed from time to time; providedprovided that such agreement was not entered into in contemplation of such acquisition, howevermerger or consolidation, that this provision shall and so long as any such amendment, modification, supplement, extension or renewal, when taken as a whole, is not apply to: (a) compensation and employee benefit arrangements with any officermaterially more disadvantageous to the Holders, director or employee in the reasonable determination of an Officer of the Company, than the applicable agreement as in effect on the date of such acquisition, merger or consolidation,
(4) any employment arrangements, employee benefit plans or arrangements (including under any stock option or stock incentive pension plans, health and life insurance plans, retiree medical plans, deferred compensation plans, indemnification agreements, stock options and restricted stock and stock ownership plans) or related trust agreements or similar arrangements, in each case, approved by the Board of Directors and any grant or issuance of securities, or other payments, awards or grants in cash, securities or otherwise pursuant to, or the funding of, any of the foregoing,
(5) (i) reimbursement of officer, director and employee travel and lodging costs and other business expenses incurred in the ordinary course of business; business and (bii) loans and advances to officers, directors and employees of the Company and Restricted Subsidiaries for travel, entertainment, relocation and analogous ordinary business purposes,
(6) the payment of reasonable fees to, and customary indemnities provided to, directors of the Company or its Subsidiaries,
(7) any transaction solely between or among the Company and/or any and a Restricted Subsidiary or between Restricted Subsidiaries,
(8) the provision by Persons who may be deemed Affiliates of the Company of investment advisory services to the Company or its Restricted Subsidiaries with respect to the Company’s or its Restricted Subsidiaries’ employee benefit plans,
(9) transactions pursuant to any contract, if such transaction is agreement or instrument in effect on the Effective Date, as amended, modified or replaced from time to time, so long as the amended, modified or new agreements, taken as a whole, are not materially less favorable to the Company and the Restricted Subsidiaries than those in effect on the Effective Date,
(10) sales, contributions, conveyances and other transfers of Receivables and related assets of the type specified in the definition of Qualified Receivables Transaction to a Receivables Subsidiary or any other similar transactions in connection with any Qualified Receivables Transaction;
(11) transactions with customers, clients, joint venture partners, suppliers or purchasers or sellers of goods or services in the ordinary course of business of the Company and its Restricted Subsidiaries and otherwise in compliance with this Indenture and is on fair and reasonable terms; (c) any transaction otherwise permitted by the terms of the section of this Indenture described in Section 1009; Indenture, or
(d12) the execution and delivery of any payments or payments made under other transaction pursuant to any tax sharing agreement between or among any of the Company and any Restricted Subsidiary; (e) licensing or sublicensing of use of any intellectual property by other Person with which the Company files a consolidated tax return or any Restricted Subsidiary to any Restricted 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 with which the Company and any Restricted Subsidiary is part of the Company a consolidated group for the purpose of providing services or employees to such 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 hereoftax purposes.
Appears in 1 contract
Sources: Indenture (Aecom Technology Corp)
Limitation on Transactions with Affiliates. (a) The Company Issuers will not, and Parent will not permit any of its Restricted Subsidiaries 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 Issuers (other than the Company or a Wholly Owned Subsidiaryan “Affiliate Transaction”) that involves an aggregate amount in excess of $2.5 million 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 terms:
(1) that are no less favorable to the Company any Issuer 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-arm’s length dealings with a Person who is not such an unrelated third partyAffiliate;
(2) 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 $3.0 25.0 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 $7.0 million, either ;
(A) such transaction or series of related transactions has are set forth in writing; and
(B) have been approved by a majority of the Disinterested Directors members of the CompanyBoard of Directors who are disinterested directors as to such Affiliate Transaction; and
(3) that, or in the event there is only one Disinterested Directorsuch Affiliate Transaction involves an amount in excess of $50.0 million, have been determined by such Disinterested Directora nationally recognized appraisal, accounting 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 be fair, from a financial point standpoint, to each applicable Issuer and the Restricted Subsidiary.
(b) The provisions of view; provided, however, that this provision shall Section 4.13(a) do not apply to:
(a1) compensation any Restricted Payment permitted to be paid pursuant to Section 4.07;
(2) 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 employee benefit arrangements with any officerstock ownership plans approved by the Board of Directors;
(3) the grant of stock options or similar rights to employees, director or employee officers, consultants and directors of the Company, including under any stock option Issuers or stock incentive the Restricted Subsidiaries pursuant to plans, agreements or arrangements approved by the Board of Directors;
(4) loans or advances to employees of the Issuers, the Restricted Subsidiaries or Parent in the ordinary course of business; business of the Issuers or the Restricted Subsidiaries in an aggregate amount not to exceed $5.0 million at any one time outstanding;
(b5) the payment of reasonable fees and compensation to, reimbursement of costs incurred by or the provision of employee benefit arrangements and indemnity, or pursuant to employment agreements, employee benefits plans, stock option plans, management incentive plans, indemnification agreements, severance arrangements, and other similar compensatory arrangements for the benefit of, directors, officers, consultants and employees of the Issuers or the Restricted Subsidiaries in the ordinary course of business (and including former directors, officers, consultants and employees of the Issuers or the Restricted Subsidiaries and their respective heirs, estates, successors and assigns and other beneficiaries of such Person’s arrangements, with respect to any such benefits or obligations that survive the death, disability, retirement or termination of such Person);
(6) any transaction solely between or among the Company and/or any Restricted Subsidiaries, if such transaction is otherwise in compliance with this Indenture and is on fair and reasonable terms; (c) any transaction otherwise permitted by the terms of the section of 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 Restricted Subsidiary; (e) licensing or sublicensing of use of any intellectual property by the Company or Issuers and/or any Restricted Subsidiary to and/or any Joint Venture, which if involving a Joint Venture would constitute an Affiliate Transaction solely because the Issuers or a Restricted Subsidiary owns an equity interest in or otherwise controls such Joint Venture;
(7) payments pursuant to tax sharing agreements involving Unrestricted Subsidiaries of Parent, minority holders of Capital Stock of Subsidiaries of Restricted Subsidiaries and any Joint Venture;
(8) any agreement as in effect on the Issue Date and disclosed in the final offering memorandum (including in any financial statements included therewith, or the footnotes to such financial statements) relating to the Notes issued on the Issue Date, or any renewals, extensions or amendments of any such agreement (so long as such renewals, extensions or amendments are not less favorable in any material respect to the Issuers or the Restricted Subsidiaries) and the transactions evidenced thereby (including for the avoidance of doubt, any repayment, pre-payment or other retirement of value pursuant to the terms of the Company; provided that Synthetic Letter of Credit Facility, or the licensor shall continue to have access to such intellectual property exchange or conversion of any of the Indebtedness under the Synthetic Letter of Credit Facility into Capital Stock (other than Preferred Stock) of any of the Issuers or the Restricted Subsidiaries, or any direct or indirect parent company thereof including Parent);
(9) 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 extent necessary for Issuers or the conduct Restricted Subsidiaries, in the reasonable determination of the Board of Directors or the senior management thereof, or are on terms at least as favorable as might reasonably have been obtained at such time from an unaffiliated party;
(10) the entering into of any agreement (and any amendment or modification of any such agreement) to pay, and the payment of, annual management, consulting, monitoring and advisory fees to the Sponsor or any of its respective business; (f) arrangements between Affiliates in an aggregate amount in any fiscal year not to exceed $2.0 million, plus all out-of-pocket reasonable expenses Incurred by the Company and Sponsor or any Restricted Subsidiary of its Affiliates in connection with the Company for the purpose performance of providing management, consulting, monitoring, advisory or other services or employees to such Restricted Subsidiary; (g) any transaction entered into for the purpose of granting or altering registration rights with respect to the Capital Stock Issuers and the Restricted Subsidiaries;
(11) payments by the Issuers or any of the Company; and (h) any transaction or series of related transactions entered into prior Restricted Subsidiaries to the date hereofSponsor or any of its Affiliates (including, without limitation, Cerberus Operations and Advisory Company, LLC) made for any specific financial advisory, financing, underwriting or placement services or in respect of other specific investment banking activities, including, without limitation, in connection with specific acquisitions or divestitures, which payments are approved by a majority of the Board of Directors of the Issuers in good faith (but not, for the avoidance of doubt, payment for ongoing services contemplated by clause (10) above);
(12) the payment to Sponsor or any of its Affiliates (including, without limitation, Cerberus Operations and Advisory Company, LLC) of fees, customary indemnities and reimbursements for out-of-pocket costs and expenses incurred by the Sponsor or any of its Affiliates (including, without limitation, amounts paid by Sponsor or any such Affiliates to employees, agents, personnel, professionals or consultants hired or retained by Sponsor or any such Affiliates, as payment for specific services rendered by such Personnel for the benefit of Tower Automotive Holdings USA, LLC or any of the Restricted Subsidiaries), in each case in connection with their performance of management, auditing, diligence, consulting, monitoring, financial advisory or other services with respect to the Issuers and the Restricted Subsidiaries (but not, for the avoidance of doubt, payment for ongoing services contemplated by clause (10) above); and
(c) periodic allocations of overhead expenses attributable to and paid by any Unrestricted Subsidiaries at Fair Market Value.
Appears in 1 contract
Sources: Indenture (Tower Automotive, LLC)
Limitation on Transactions with Affiliates. (a) The Company will shall not, and will shall not permit any of its Restricted Subsidiaries 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 Affiliate Transaction is on terms (i) 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 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 $3.0 10.0 million, 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 $7.0 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, other than as a holder of Capital Stock of Holdings, the Company or such Restricted Subsidiary, in such Affiliate Transaction and (iii) that, in the event that such Affiliate Transaction involves an amount in excess of $25.0 million or does not comply with Section 4.07(a)(ii), have been determined by a nationally recognized appraisal, accounting or investment banking firm to be fair, from a financial standpoint, to the Company and the Restricted Subsidiaries.
(b) The provisions of Section 4.07(a) shall not prohibit (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 and stock ownership plans approved by the Board of Directors of the Company, (iii) the grant of stock options or in similar rights to employees, consultants and directors of Holdings, the event there is only one Disinterested DirectorCompany or the Subsidiaries of the Company pursuant to plans approved by the Board of Directors of Holdings or the Company, by such Disinterested Director, (iv) (A) extensions and Refinancings of loans or advances existing on the Closing Date that were made to employees or consultants and (B) the Company delivers loans or advances 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: (a) compensation and employee benefit arrangements with any officer, director or employee of the Company, including under any stock option or stock incentive plans, employees in the ordinary course of business; business in accordance with past practices of Holdings, but in any event in the case of this clause (bB) not to exceed $10.0 million in the aggregate outstanding at any one time, (v) the payment of reasonable fees to directors of Holdings, the Company and the Subsidiaries of the Company who are not employees of Holdings, the Company or such Subsidiaries, (vi) any transaction solely between or among the Company and/or any and a Restricted Subsidiary or between Restricted Subsidiaries; (vii) customary indemnification and insurance arrangements in favor of officers, if such transaction is otherwise directors, employees and consultants of Holdings, the Company or any of the Restricted Subsidiaries; (viii) the purchase and sale of inventory in compliance the ordinary course of business on an arm's-length basis consistent with this Indenture and is customary market pricing; (ix) marketing and/or distribution arrangements on fair and reasonable arm's-length terms; (cx) any transaction otherwise permitted payments by the terms of the section of this 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 Restricted Subsidiaries to Fox Pain▇ ▇▇▇ its Affiliates for any financial advisory, management, financing, underwriting or other placement services or in respect of other investment banking activities, including, without limitation, in connection with acquisitions or divestitures which payments are approved by a majority of the members of the Board of Directors of the Company and any Restricted Subsidiaryreferred to in Section 4.07(a)(ii)(2) in good faith; (exi) licensing the existence of, or sublicensing of use of any intellectual property the performance by the Company or any Restricted Subsidiary to any Restricted Subsidiary of the Companyobligations under the terms of, any stockholders' agreements (including any registration rights agreement or purchase agreement related thereto) to which any of them is a party as of the Closing Date, as such agreements may be amended from time to time pursuant to the terms thereof; provided provided, however, that the licensor shall continue to have access to terms of any such intellectual property amendment are no less favorable to the extent necessary for Holders than the conduct terms of its respective businessany such agreements in effect as of the Closing Date; (fxii) arrangements between the Company and any Restricted Subsidiary issuance of Capital Stock (other than Disqualified Stock) of the Company for the purpose of providing services or employees cash to such Restricted Subsidiaryany Permitted Holder; (gxiii) any transaction entered into for between Circon and the purpose of granting Company or altering registration rights with a Restricted Subsidiary in respect to the Capital Stock of the CompanyCircon Note in connection with the Transactions; and (hxiv) the performance of the Services Agreement as in effect on the Closing Date (or any transaction addition or series deletion of related transactions entered into prior services thereunder on substantially similar terms) or any other amendment or modification thereto or replacement thereof so long as any such other amendment, modification or replacement agreement is not materially more disadvantageous to the date hereofHolders than the original agreement as in effect on the Closing Date.
Appears in 1 contract
Sources: Indenture (Maxxim Medical Inc/Tx)
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, purchaselease, contribution or exchange or lease of assets, any property or servicesthe rendering of any service) with or for the benefit of any Affiliate of its Affiliates (other than transactions between the Company and a Restricted Subsidiary of the Company or among Restricted Subsidiaries of the Company) (an “Affiliate Transaction”), 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 Affiliate Transactions on terms that are no less favorable than those that might reasonably have been obtained in a comparable transaction 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 involving value of $5,000,000 or more, such determination shall be made in good faith by a majority of members of the Board of Directors of the Company and by a majority of the disinterested members of the Board of Directors of the Company, if any; provided, further, that for a transaction or series of related transactions involving value of $15,000,000 or more, the Board of Directors of the Company has received an opinion from an independent investment banking firm of nationally recognized standing that such Affiliate Transaction is fair, from a financial point of view, to the Company or such Restricted Subsidiary. The foregoing restrictions shall not apply to:
(1) directors’ fees, as indemnification and similar arrangements approved in good faith by the case may beCompany’s Board of Directors and payments thereunder;
(2) any obligations of the Company under any employment agreement, than those that would be reasonably expected non-competition or confidentiality agreement or other similar agreement with any officer or employee of the Company who is an Affiliate and any payment thereunder;
(3) Permitted Investments and any Restricted Payment permitted to be available made pursuant Section 4.09;
(4) any issuance of securities, or other payments, awards or grants in a comparable transaction in arm's-length dealings with an unrelated third partycash, (b) with respect to any transaction securities or series of related transactions involving aggregate value in excess of $3.0 millionotherwise pursuant to, or the Company delivers an Officers' Certificate to the Trustee certifying that such transaction or series of related transactions complies with clause (a) abovefunding of, employment arrangements, stock options and (c) with respect to any transaction or series of related transactions involving aggregate value in excess of $7.0 million, either (A) such transaction or series of related transactions has been stock ownership plans approved by a majority the Board of the Disinterested Directors of the Company, ;
(5) loans or in the event there is only one Disinterested Director, by such Disinterested Director, or (B) the Company delivers advances 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: (a) compensation and employee benefit arrangements with any officer, director or employee of the Company, including under any stock option or stock incentive plans, employees in the ordinary course of business; (b) any transaction solely between or among the Company and/or any Restricted Subsidiaries, if such transaction is otherwise in compliance with this Indenture and is on fair and reasonable terms; (c) any transaction otherwise permitted by the terms business of the section of 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 Restricted Subsidiary; (e) licensing or sublicensing of use of any intellectual property by the Company or any of its Restricted Subsidiary Subsidiaries consistent with past practices;
(6) contributions to any Restricted Subsidiary the capital 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; and
(f7) arrangements between any transaction with a joint venture or similar entity which would constitute an Affiliate Transaction solely because the Company and any or a Restricted Subsidiary of the Company for the purpose of providing services owns, directly or employees to indirectly, an equity interest in or otherwise controls such Restricted Subsidiary; (g) any transaction entered into for the purpose of granting , joint venture 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 entity.
Appears in 1 contract
Sources: Indenture (Lin Tv Corp)
Limitation on Transactions with Affiliates. 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, including the sale, transfer, disposition, purchase, exchange or lease of assets, property or services) with with, or for the benefit of, any of any Affiliate its Affiliates involving aggregate consideration in excess 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 $10,000,000, except: (a) such transaction or series of related transactions is on terms that are no not materially 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 party, at such time from Persons who are not Affiliates of the Company and (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 $3.0 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, and (c) with respect to any transaction or series of related transactions involving aggregate value in excess of $7.0 million, either (A) such transaction or series of related transactions has shall have been approved by a majority of the Disinterested Members of the Board of Directors of the Company. Notwithstanding the foregoing, or 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 Restricted Subsidiary from a financial point of view; provided, however, that this provision Section 4.11 shall not apply to: (ai) transactions with or among the Company and the Restricted Subsidiaries; (ii) transactions in the ordinary course of business, or approved by a majority of the Board of Directors of the Company, between the Company or any Restricted Subsidiary and any Affiliate of the Company that is a joint venture or similar entity; (iii) (A) customary directors’ fees, indemnification and similar arrangements, consulting fees, employee salaries, bonuses or employment agreements, collective bargaining agreements, compensation and or employee benefit arrangements and incentive arrangements with any officer, director or employee of the CompanyCompany or any Restricted Subsidiary entered into in the ordinary course of business and (B) any transaction with an officer or director in the ordinary course of business not involving more than $1,000,000 in any one year; (iv) Restricted Payments made in compliance with Section 4.09; (v) loans and advances to officers, including under directors and employees of the Company or any stock option or stock incentive plansRestricted Subsidiary for travel, entertainment, moving and other relocation expenses, in each case made in the ordinary course of business; (bvi) any transaction solely between transactions pursuant to agreements in effect on the Issue Date; (vii) [Reserved]; (viii) transactions with customers, clients, suppliers, joint venture partners, joint ventures, including their members or among partners, or purchasers or sellers of goods or services, in each case in the Company and/or any Restricted Subsidiariesordinary course of business, if such transaction is including pursuant to joint venture agreements, and otherwise in compliance with this Indenture and is on fair and reasonable terms; (c) any transaction otherwise permitted by the terms of the section of this Indenture described which are, in Section 1009; the aggregate (d) taking into account all the execution costs and delivery of or payments made under any tax sharing agreement between or among any of benefits associated with such transactions), materially no less favorable to the Company and any or the applicable Restricted Subsidiary; (e) licensing or sublicensing of use of any intellectual property Subsidiary than those that would have been obtained in a comparable transaction by the Company or any that Restricted Subsidiary to any Restricted Subsidiary with an unrelated Person or entity, in the good faith determination of the Company; provided that the licensor shall continue to ’s Board of Directors or its senior management, or 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 businesstime from an unaffiliated party; (fix) arrangements between the Company and any Restricted Subsidiary issuance or sale of Capital Stock (other than Redeemable Capital Stock) of the Company for or any capital contribution to the purpose Company; (x) the Separation Transactions, including (i) all transactions pursuant to agreement necessary to effectuate the Separation Transactions and (ii) the payment of providing services all fees and expenses relating thereto and a dividend from the Company to RRD of the net proceeds of the Notes to be made in connection therewith; and (xi) transactions in which a Restricted Subsidiary delivers to the Trustee a letter from an accounting, appraisal or employees investment banking firm of national standing stating that the financial terms of such transaction either (x) are fair to such Restricted Subsidiary; Subsidiary from a financial point of view (gor words of similar import) any transaction entered into for or (y) meet the purpose requirements of granting or altering registration rights with respect to the Capital Stock clause (a) of the Company; and (h) any transaction or series first paragraph of related transactions entered into prior to the date hereofthis Section 4.11.
Appears in 1 contract
Sources: Indenture (LSC Communications, Inc.)
Limitation on Transactions with Affiliates. The Company will Issuers shall not, and will shall not permit permit, cause or suffer any of its the Restricted Subsidiaries 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 respective 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 reasonably believed to be no less favorable to the Company such Issuer 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 at such time with an unrelated third partyPerson, and (b) with respect to any a transaction or series of related transactions involving aggregate value in excess of payments or Fair Market Value equal to or greater than $3.0 10.0 million, the Company delivers Issuers shall have delivered an Officers' Certificate to the Trustee certifying that such transaction or series of related transactions complies with the preceding clause (a) above, and (c) with respect to any transaction or series of related transactions involving aggregate value in excess of $7.0 million, either (A) that such transaction or series of related transactions has been approved by a majority the Requisite Managers; provided that, in lieu of complying with clause (b), 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 Issuers may obtain a written opinion of from an investment banking firm of national standing or other recognized independent expert with experience appraising Independent Financial Advisor qualified to pass upon the required matters stating that 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 are fair to the Company such Issuer or such Restricted Subsidiary Subsidiary, as the case may be, from a financial point of view; providedview Notwithstanding the foregoing, however, that this provision shall Section 4.14 will not apply torestrict the Issuers or the Restricted Subsidiaries from: (a) compensation making Restricted Payments permitted under Section 4.12; (b) 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 employee benefit arrangements with any officer, director or employee stock ownership plans approved by the Board of Directors of the Company; (c) transactions among an Issuer and Restricted Subsidiaries and transactions among Restricted Subsidiaries of an Issuer otherwise permitted by this Indenture; (d) the making of loans and advances and the payment of fees and indemnities to directors, including under any stock option or stock incentive plans, officers and employees of the Issuers and the Restricted Subsidiaries in the ordinary course of business; (b) any transaction solely between or among the Company and/or any Restricted Subsidiaries, if such transaction is otherwise in compliance with this Indenture and is on fair and reasonable terms; (c) any transaction otherwise permitted by the terms of the section of 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 Restricted Subsidiary; (e) licensing or sublicensing of use of any intellectual property by transactions pursuant to agreements in existence on the Company Issue Date (including, without limitation, the limited liability company agreement for the Company) or any Restricted Subsidiary to amendment thereto (so long as any Restricted Subsidiary of the Company; provided that the licensor shall continue to have access to such intellectual property amendment is not disadvantageous to the extent necessary for the conduct of its respective businessHolders in any material respect); (f) arrangements between the Company and any Restricted Subsidiary employment agreements entered into by an Issuer or any of the Company for Restricted Subsidiaries in the purpose ordinary course of providing services or employees to such Restricted Subsidiarybusiness; (g) any transaction entered into sale of Capital Stock (other than Disqualified Capital Stock) of an Issuer; (h) so long as no Default has occurred and is continuing, the payment of management, consulting, monitoring and advisory fees and related expenses to Blackstone, Veritas, USX and Kobe and their Affiliates not to exceed $4.0 million in the aggregate in any calendar year to the extent it would be permitted under clause (xi) of paragraph (b) of Section 4.12 (including payment of accrued and unpaid amounts carried forward to subsequent periods, notwithstanding the $4.0 million limitation otherwise applicable); (i) payments by an Issuer or any of the Restricted Subsidiaries to Blackstone, Veritas, USX and Kobe and their Affiliates made for the purpose any financial advisory, underwriting or placement services or in respect of granting or altering registration rights other investment banking activities consistent with past customary practice of Blackstone and Veritas, respectively, with respect to the Capital Stock their portfolio companies, including, without limitation, in connection with acquisitions or divestitures, which payments are approved by a majority of the CompanyBoard of Directors of the Issuer in good faith; (j) 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; (k) transactions and payments pursuant to the Supply and Service Agreements and any other agreements in effect as of the Issue Date or any amendment thereto (so long as any such amendment is not disadvantageous from the perspective of the Holders in any material respect) or any transaction explicitly contemplated thereby; (l) transactions pursuant to the management agreement with ▇▇▇▇▇▇ International, Inc. relating to the Specialty Steel Assets; (m) an Asset Sale of the Specialty Steel Assets made in compliance with Section 4.13; and (hn) the provision of reasonable assistance to any transaction or series Affiliates of related transactions entered into prior to the date hereofIssuers in connection with processing financing transactions, including, without limitation, offerings of securities by RTI and its stockholders.
Appears in 1 contract
Sources: Indenture (Rti Capital Corp)
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 and
(a1) 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, ,
(b2) with respect to any transaction or series of related transactions involving aggregate value in excess of $3.0 10.0 million, ,
(a) the Company delivers an Officers' Certificate to the Trustee certifying that such transaction or series of related transactions complies with clause (a1) above, and and
(c) with respect to any transaction or series of related transactions involving aggregate value in excess of $7.0 million, either (Ab) such transaction or series of related transactions has been 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, or
(3) with respect to any transaction or (B) series of related transactions involving an aggregate value in excess of $50.0 million, the Company delivers to the Trustee a written opinion of an investment banking firm of national standing in the United States or Canada 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 transaction or series of related transactions is fair to the Company or such Restricted Subsidiary from a financial point of view; providedPROVIDED, howeverHOWEVER, that this provision shall not apply 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, and customary indemnification arrangements with officers or directors of the Company, in each case entered into in the ordinary course of business; , (bii) any transaction solely between or among the Company and/or any Restricted Subsidiaries, if such transaction is otherwise Payments made in compliance with this Indenture and is on fair and reasonable terms; Section 1009 above, (ciii) transactions effected as part of a Permitted Securitization Transaction, (iv) any transaction otherwise permitted by fees paid or expenses reimbursed to to directors in the terms ordinary course in their capacity as such, (v) any sale or issuance of the section of this Indenture described in Section 1009; (d) the execution and delivery of or payments made under any tax sharing agreement between or among any Qualified Capital Stock to Affiliates of the Company and any Restricted Subsidiary; (evi) licensing or sublicensing transactions entered into in the ordinary course of use of any intellectual property by the Company or any Restricted Subsidiary to any Restricted 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 Restricted Subsidiary business with Affiliates of the Company who are Canadian drugstore franchisees, whether currently owned or after-acquired, in their capacities as such, for purposes of (a) purchase and sale of inventory for the purpose of providing services related franchises, or employees to such Restricted Subsidiary; (gb) any transaction entered entering into for the purpose of granting inventory buyback or altering registration rights with respect to the Capital Stock guarantee arrangements described under clauses (16) and (17) of the Company; and (h) any transaction or series definition of related transactions entered into prior to the date hereof"Permitted Indebtedness".
Appears in 1 contract
Sources: Exhibit (Brooks Pharmacy, 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, purchaselease, contribution or exchange or lease of assets, any property or servicesthe rendering of any service) with or for the benefit of any Affiliate of its Affiliates (other than transactions between the Company and a Restricted Subsidiary of the Company or among Restricted Subsidiaries of the Company) (an "Affiliate Transaction"), 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 Affiliate Transactions on terms that are no less favorable than those that might reasonably have been obtained in a comparable transaction 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 involving value of $5,000,000 or more, such determination shall be made in good faith by a majority of members of the Board of Directors of the Company and by a majority of the disinterested members of the Board of Directors of the Company, if any; provided, further, that for a transaction or series of related transactions involving value of $15,000,000 or more, the Board of Directors of the Company has received an opinion from an independent investment banking firm of nationally recognized standing that such Affiliate Transaction is fair, from a financial point of view, to the Company or such Restricted Subsidiary. The foregoing restrictions shall not apply to (1) reasonable and customary directors' fees, indemnification and similar arrangements and payments thereunder; (2) any obligations of the Company under any employment agreement, noncompetition or confidentiality agreement with any officer of the Company, as in effect on the case may be, than those Issue Date (provided that would each amendment of any of the foregoing agreements shall be reasonably expected subject to the limitations of this covenant); (3) any Restricted Payment permitted to be available made pursuant Section 4.10; (4) any issuance of securities, or other payments, awards or grants in a comparable transaction in arm's-length dealings with an unrelated third partycash, (b) with respect to any transaction securities or series of related transactions involving aggregate value in excess of $3.0 millionotherwise pursuant to, or the Company delivers an Officers' Certificate to the Trustee certifying that such transaction or series of related transactions complies with clause (a) abovefunding of, employment arrangements, stock options and (c) with respect to any transaction or series of related transactions involving aggregate value in excess of $7.0 million, either (A) such transaction or series of related transactions has been stock ownership plans approved by a majority the Board of the Disinterested Directors of the Company, ; (5) loans or in the event there is only one Disinterested Director, by such Disinterested Director, or (B) the Company delivers advances 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: (a) compensation and employee benefit arrangements with any officer, director or employee of the Company, including under any stock option or stock incentive plans, employees in the ordinary course of business; (b) any transaction solely between or among business of the Company and/or or any of its Restricted Subsidiaries, if such transaction is otherwise Subsidiaries consistent with past practices; and (6) payments by the Company to ▇▇▇▇▇ Muse Partners in compliance accordance with this Indenture and is on fair and reasonable terms; (c) any transaction otherwise permitted by the terms of the section of 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 Restricted Subsidiary; (e) licensing or sublicensing of use of any intellectual property by the Company or any Restricted Subsidiary to any Restricted 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 Restricted Subsidiary of the Company for the purpose of providing services or employees to such 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 hereofFinancial Advisory Agreement.
Appears in 1 contract
Sources: Indenture (Lin Television Corp)
Limitation on Transactions with Affiliates. The Except for reinsurance agreements entered into with Capital liates Reinsurance Company or its Affiliates pursuant to the letter agreement as in effect on the date hereof, a copy of which is attached as Annex VIII hereto, the Company will not, and will not permit any of its Restricted Subsidiaries to, directly or indirectly, conduct any business or enter into any transaction or series of related transactions (includingor transactions, without limitation, the sale, purchase, exchange or lease of assets, property or services) with or for the benefit of any Affiliate of the Company Company, 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 in the best interest of the Company or such Restricted Subsidiary, (ii) such transaction or series of transactions is on terms that are no less favorable to the Company or such Restricted Subsidiary, as the case may be, Subsidiary than those that would could be reasonably expected to be available obtained in a comparable transaction in arm'sarms-length dealings transaction with an unrelated third party, (biii) with respect to any a transaction or series of related transactions involving aggregate payments or value in excess of $3.0 millionU.S.$1 million (other than transactions in the ordinary course of business (A) involving the insurance or reinsurance of risks, (B) involving the brokering of insurance or reinsurance, or (C) as otherwise contemplated in the Private Placement Memorandum), the Company delivers an Officers' Certificate to Company's Board of Directors (including a majority of the Trustee certifying disinterested directors thereof) approves such transaction or series of transactions and in its good faith judgment believes that such transaction or series of related transactions complies with clause clauses (ai) aboveand (ii) of this paragraph, as evidenced by a Certified Resolution, and (civ) with respect to any a transaction or series of related transactions involving aggregate payments or value in excess of $7.0 million, either U.S.$3 million (other than transactions in the ordinary course of business (A) such transaction involving the insurance or series reinsurance of related transactions has been approved by a majority risks, (B) involving the brokering of insurance or reinsurance, or (C) as otherwise contemplated in the Disinterested Directors of Private Placement Memorandum), the Company, or in the event there is only one Disinterested Directoraddition to complying with clause (iii) of this paragraph, by such Disinterested Director, or (B) the Company delivers to the Trustee a written obtains an opinion of from an investment banking firm of national standing or other internationally recognized independent expert 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 stating that the transactions or series of related transactions transaction is fair from a financial point of view to the Company or such Restricted Subsidiary from a financial point of view; providedSubsidiary. In addition, 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 will not and will not permit the Restricted Subsidiaries, if such transaction is otherwise in compliance with this Indenture and is on fair and reasonable terms; (c) any transaction otherwise permitted by the terms of the section of 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 Restricted Subsidiary; (e) licensing or sublicensing of use of any intellectual property by the Company or any Restricted Subsidiary Subsidiaries to any Restricted 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 Restricted Subsidiary of the Company for the purpose of providing services or employees to such Restricted Subsidiary; (g) any transaction entered enter 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 (other than the agreements with Capital Reinsurance Company or its Affiliates referred to above) with any Person who holds the right to designate only one voting member of the Company's Board of Directors or any Affiliate of such a Person, unless such transaction or series of transactions is (1) in the best interests of the Company as determined by the disinterested members of the Board and (2) entered into prior to the date hereofon an arms-length basis.
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 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 (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 its Affiliates, 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 at the time in a comparable transaction in arm's-length dealings with an unrelated third partyor series of related transactions 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 $3.0 million5,000,000, 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) aboveand have been approved by the Board of Directors of the Company, and (c) with respect to any a transaction or series of related transactions involving aggregate payments or value equal to or greater than $10,000,000, the Officers' Certificate referred to in excess of $7.0 million, either clause (Ab) above also includes a certification 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 CompanyCompany or, or in the event there is only one Disinterested Director, by are no such Disinterested DirectorMembers of the Board of Directors, or (B) that the Company delivers to the Trustee has obtained a written opinion of from an independent nationally recognized investment banking firm, accounting firm of national standing or other recognized independent expert with experience appraising appraisal firm, in each case specializing or having a speciality in the terms type and conditions subject matter of the type of transaction or series of related transactions for at issue, which an opinion is required stating shall be to the effect set forth in clause (a) above or shall state that the transactions such transaction or series of related transactions is fair from a financial point of view to the Company or such Restricted Subsidiary from a financial point of view; providedSubsidiary. Notwithstanding the foregoing, however, that the restrictions set forth in this provision covenant shall not apply to: to (ai) transactions between or among the Company and its Restricted Subsidiaries, (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 Restricted Subsidiaries, if such transaction is otherwise dividends made in compliance with this Indenture Section 10.9, (iv) 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 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 Restricted Subsidiary; (e) licensing or sublicensing of use of any intellectual property by the Company or any Restricted Subsidiary made in the ordinary course of business in an aggregate amount not to exceed $1,000,000 outstanding at any Restricted Subsidiary one time, (v) transactions pursuant to agreements in effect on January 28, 1999, (vi) written agreements entered into or assumed in connection with acquisitions of the Company; provided that the licensor shall continue to have access other businesses with Persons who were not Affiliates prior to such intellectual transactions, or (vii) leases of property to the extent necessary for the conduct of its respective business; (f) arrangements between the Company and any Restricted Subsidiary of the Company for the purpose of providing services or employees to such Restricted Subsidiary; (g) any transaction equipment entered into for in the purpose ordinary course of granting or altering registration rights business on terms that are substantially similar to those which could have been obtained at the time in a comparable transaction with respect to the Capital Stock of the Company; and (h) any transaction or series of related transactions entered into prior to the date hereofnon-Affiliates.
Appears in 1 contract
Sources: Indenture (NBH Holdings Co Inc)
Limitation on Transactions with Affiliates. (a) The Company will shall not, and will shall not permit any of its Restricted 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 or for the benefit of any Affiliate of the Company 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 on terms that are no less favorable to the Company or such Restricted Subsidiary, as the case may be, than those that would could reasonably be reasonably expected to be available obtainable at such time in a comparable transaction in arm's-length dealings with an unrelated third party, and (b2) the Company delivers to the Trustee (a) with respect to any transaction or series of related transactions involving aggregate value payments in excess of $3.0 million500,000, the Company delivers an Officers' Certificate to the Trustee certifying that such transaction or series of related transactions complies with clause (a1) above, above and (cb) with respect to any transaction or series of related transactions involving aggregate value payments in excess of $7.0 2.0 million, either (A) an Officers' Certificate certifying that 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 (c) with respect to any transaction or (B) series of transactions involving aggregate payments in excess of $5.0 million, an opinion as to the fairness to the Company delivers to the Trustee 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 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 standing.
(b) Section 4.14(a) 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 Company or any stock option or stock incentive plans, of its Restricted Subsidiaries entered into in the ordinary course of businessbusiness (including customary benefits thereunder and including reimbursement or advancement of out-of-pocket expenses, and director's and officer's liability insurance); (b) any transaction solely between or among the Company and/or any Restricted Subsidiaries, if such transaction is otherwise in compliance with this Indenture and is on fair and reasonable terms; (c) any transaction otherwise permitted by the terms of the section of 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 Restricted Subsidiary; (e) licensing or sublicensing of use of any intellectual property by the Company or any Restricted Subsidiary to any Restricted 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 Restricted Subsidiary of the Company for the purpose of providing services or employees to such Restricted Subsidiary; (gii) any transaction entered into for by or among the purpose Company or one of granting its Restricted Subsidiaries with one or altering registration rights with respect to the Capital Stock more Restricted 57 Subsidiaries of the Company; and (hiii) any transaction permitted by Section 4.11(b); (iv) transactions permitted by, and complying with, Article Five; and (v) transactions with suppliers or series other purchases or sales of related transactions entered into prior goods or services, in each case in the ordinary course of business (including, without limitation, pursuant to joint venture agreements) and otherwise in compliance with the terms of this Indenture which, in the reasonable determination of the Board of Directors of the Company, are on terms no less favorable to the date hereofCompany or its Restricted Subsidiaries than those that could reasonably have been obtained at such time from an unaffiliated party.
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 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 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 $3.0 5.0 million, 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 except as provided in excess of $7.0 millionSection 4.07(a)(iii), either (A) such transaction or series of related transactions has have been approved by a majority of the Disinterested Directors members of the CompanyBoard of Directors having no personal stake in such Affiliate Transaction (if any such members exist) and (iii) that, or in the event there is only one Disinterested Director, by (1) such Disinterested DirectorAffiliate Transaction involves an amount in excess of $10.0 million, or (B2) if there are no members of the Company delivers to the Trustee Board of Directors having no personal stake in such Affiliate Transaction and such Affiliate Transaction involves an aggregate amount in excess of $5.0 million, have been determined by a written opinion of an nationally recognized appraisal, accounting or 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 be fair, from a financial standpoint, to the Company or such and its Restricted Subsidiary from a financial point Subsidiaries.
(b) The provisions of view; provided, however, that this provision Section 4.07(a) shall not apply prohibit (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: (a) compensation and employee benefit arrangements with any officer, director or employee the funding of, employment arrangements, options to purchase Capital Stock of the CompanyCompany and equity ownership, including under any restricted stock option or stock plans, long-term incentive plans, stock appreciation rights plans, participation plans or similar employee benefits plans approved by the Board of Directors, (iii) the grant of options (and the exercise thereof) to purchase Capital Stock of the Company or similar rights to employees and directors of the Company pursuant to plans approved by the Board of Directors, (iv) loans or advances to officers, directors or employees in the ordinary course of business; , but in any event not to exceed $2.0 million in the aggregate outstanding at any one time with respect to all loans and advances made since the Closing Date, (b) any transaction solely between or among the Company and/or any Restricted Subsidiaries, if such transaction is otherwise in compliance with this Indenture and is on fair and reasonable terms; (c) any transaction otherwise permitted by the terms of the section of this Indenture described in Section 1009; (dv) the execution and delivery payment of or payments made under any tax sharing agreement between or among any reasonable fees to directors of the Company and its Subsidiaries who are not employees of the Company or its Subsidiaries and other reasonable fees, compensation, benefits and indemnities paid or entered into by the Company or its Restricted Subsidiaries in the ordinary course of business to or with the officers, directors or employees of the Company and its Restricted Subsidiaries, (vi) any transaction between the Company and a Restricted Subsidiary; Subsidiary or between Restricted Subsidiaries, (evii) licensing the provision by Persons who may be deemed Affiliates or sublicensing stockholders of use the Company (other than ▇.▇. ▇▇▇▇▇▇ Partners, LLC and Persons directly or indirectly controlled by ▇.▇. ▇▇▇▇▇▇ Partners, LLC) of any intellectual property investment banking, commercial banking, trust, lending or financing, investment, underwriting, placement agent, financial advisory or similar services to the Company or its Subsidiaries performed after the Closing Date, (viii) sales of Capital Stock to Permitted Holders approved by a majority of the members of the Board of Directors who do not have a material direct or indirect financial interest in or with respect to the transaction being considered, or (ix) the existence or performance by the Company or any Restricted Subsidiary under any agreement as in effect as of the Closing Date or replacement agreement therefor or any transaction contemplated thereby (including pursuant to any Restricted Subsidiary amendment thereto or replacement agreement therefor) so long as such amendment or replacement is not more disadvantageous to the Holders of the Company; provided that Securities in any material respect than the licensor shall continue to have access to such intellectual property to original agreement as in effect on the extent necessary for the conduct of its respective business; (f) arrangements between the Company and any Restricted Subsidiary of the Company for the purpose of providing services or employees to such 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 hereofClosing Date.
Appears in 1 contract
Sources: Indenture (Pierson Industries Inc)
Limitation on Transactions with Affiliates. The Neither the Company will not, and will not permit nor any of its Restricted Subsidiaries to, directly or indirectly, will be permitted after the Issue Date to enter into any contract, arrangement, understanding or transaction with an Affiliate (an "Affiliate Transaction") or series of related Affiliate Transactions involving consideration to either party in excess of five million dollars ($5,000,000) except for transactions (including, without limitation, i) approved by a majority of the sale, purchase, exchange or lease disinterested (as to such transaction) members of assets, property or services) with or for the benefit Board of any Affiliate Managers of the Company (other than and evidenced by an Officers' Certificate addressed and delivered to the Company or a Wholly Owned Subsidiary) unless Trustee stating that such transaction or series of related transactions Affiliate Transaction has been so approved and 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 and such Restricted SubsidiarySubsidiaries, 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) with respect to any transaction or series of related transactions involving aggregate value in excess of $3.0 million, regarding which the Company delivers an Officers' Certificate has obtained, prior to the Trustee certifying that consummation thereof, a favorable written 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 $7.0 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 and such Subsidiaries, as the Trustee case may be, from a written opinion financial point of view from an -49- 58 independent investment banking firm of national standing or other recognized independent expert with experience appraising reputation. 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 Restricted Subsidiary from a financial point of view; providedforegoing, however, that this provision "Affiliate Transaction" shall not apply toinclude: (a) compensation payments of reasonable and employee benefit arrangements with any officercustomary compensation, director or employee Managers' fees and indemnities of Managers, officers and employees, (b) Restricted Payments permitted under Section 4.3 of this Indenture (including transactions which are permitted because they are excluded from the definition of the Companyterm "Restricted Payment" or the definitions of terms used in the definition of "Restricted Payment"), including under (c) transactions solely between the Company and a Subsidiary Guarantor or among any stock option Subsidiary Guarantors, (d) the Intercompany Notes, (e) any employment agreement entered into by the Company or stock incentive plans, any of its Subsidiaries in the ordinary course of business; business and consistent with the usual and customary practice of the gaming industry in the United States and (f) transactions permitted pursuant to paragraph (b) any transaction solely between or among the Company and/or any Restricted Subsidiaries, if such transaction is otherwise in compliance with this Indenture and is on fair and reasonable terms; (c) any transaction otherwise permitted by the terms of the section definition of 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 Restricted Subsidiary; (e) licensing or sublicensing of use of any intellectual property by the Company or any Restricted Subsidiary to any Restricted 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 Restricted Subsidiary of the Company for the purpose of providing services or employees to such 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 hereofPermitted Indebtedness.
Appears in 1 contract
Sources: Indenture (Horseshoe Gaming LLC)
Limitation on Transactions with Affiliates. (a) The Company will shall not, and will shall not permit any of its Restricted 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 or for the benefit of any Affiliate of the Company 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 on terms that are no less favorable to the Company or such Restricted Subsidiary, as the case may be, than those that would could reasonably be reasonably expected to be available obtainable at such time in a comparable transaction in arm's-length dealings with an unrelated third party, and (b2) the Company delivers to the Trustee (a) with respect to any transaction or series of related transactions involving aggregate value payments in excess of $3.0 million500,000, the Company delivers an Officers' Certificate to the Trustee certifying that such transaction or series of related transactions complies with clause (a1) above, above and (cb) with respect to any transaction or series of related transactions involving aggregate value payments in excess of $7.0 2.0 million, either (A) an Officers' Certificate certifying that 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 (c) with respect to any transaction or (B) series of transactions involving aggregate payments in excess of $5.0 million, an opinion as to the fairness to the Company delivers to the Trustee 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 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 standing.
(b) Section 4.14(a) 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 Company or any stock option or stock incentive plans, of its Restricted Subsidiaries entered into in the ordinary course of businessbusiness (including customary benefits thereunder and including reimbursement or advancement of out-of-pocket expenses, and director's and officer's liability insurance); (b) any transaction solely between or among the Company and/or any Restricted Subsidiaries, if such transaction is otherwise in compliance with this Indenture and is on fair and reasonable terms; (c) any transaction otherwise permitted by the terms of the section of this Indenture described in Section 1009; (dii) the execution and delivery of or payments made under any tax expense sharing agreement between or among any of the Company and any Restricted Subsidiary; (e) licensing or sublicensing of use of any intellectual property by the Company or any Restricted Subsidiary to any Restricted 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 arrangement between the Company and any Restricted Subsidiary of Wein▇▇▇▇ ▇▇▇ital Corporation regarding the Company for expenses incurred with respect to the purpose of providing services or employees to such Restricted SubsidiaryCompany's Cleveland, Ohio headquarters; (giii) the Hawk Controlling Stockholder Merger that will occur concurrently with the Offering; (iv) the secured promissory note in the original principal amount of $500,000 issued to Helco, Inc.; (v) the Hutc▇▇▇▇▇▇ ▇▇▇es; (vi) any transaction entered into for by or among the purpose Company or one of granting its Restricted Subsidiaries with one or altering registration rights with respect to the Capital Stock more Restricted Subsidiaries of the Company; (vii) 48 42 any transaction permitted by Section 4.11(b); (viii) transactions permitted by, and complying with, Article Five; and (hix) any transaction transactions with suppliers or series other purchases or sales of related transactions entered into prior goods or services, in each case in the ordinary course of business (including, without limitation, pursuant to joint venture agreements) and otherwise in compliance with the terms of this Indenture which, in the reasonable determination of the Board of Directors of the Company, are on terms no less favorable to the date hereofCompany or its Restricted Subsidiaries than those that could reasonably have been obtained at such time from an unaffiliated party.
Appears in 1 contract
Sources: Indenture (Hutchinson Products Corp)
Limitation on Transactions with Affiliates. The Company will shall not, and will shall not permit permit, cause or suffer any of its Restricted Subsidiaries Subsidiary to, directly conduct any business 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 of the Company or any Subsidiary (other than the Company or a Wholly Owned Subsidiary) unless such transaction or series of related transactions is entered into each an "Affiliate Transaction"), except in good faith and on terms that are set forth 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 basis from a person not an Affiliate of the Company or such Subsidiary. All Affiliate Transactions (and each series of related Affiliated Transactions which are similar or part of a common plan), involving aggregate payments or other value in excess of $100,000 shall be approved 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 complies with an unrelated third partythe provisions of this Section 4.12. Notwithstanding the foregoing, the restrictions set forth in this Section 4.12 shall not apply to (i) the payment of reasonable and customary directors fees to directors who are not employees of the Company, (bii) the purchase of property or services from an Affiliate of the Company or any Subsidiary by the Company or any Subsidiary or sales of property or services to an Affiliate of the Company or any Subsidiary by the Company or any Subsidiary which are in the ordinary course of business and consistent with respect to any past practice and do not involve aggregate payments or other value in excess of $100,000 in a single transaction or series of related transactions involving aggregate value transactions, or (iii) the performance by the Company of its obligations under the Registration Effectiveness Agreement or the Securities Purchase Agreement dated as of May 14, 1993 by and among the Company and the investment manager of certain funds named therein. Anything contained in excess of $3.0 millionthis Indenture to the contrary notwithstanding, the Company delivers an Officers' Certificate to the Trustee certifying that such transaction or series of related transactions complies with clause (a) aboveshall not, and (c) shall not permit any Subsidiary to, engage in any Affiliate Transaction with respect to any transaction or series of related transactions involving aggregate value in excess of $7.0 million, either (A) such transaction or series of related transactions has been approved by a majority for the benefit 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: (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 Restricted Inactive Subsidiaries, if such transaction is otherwise in compliance with this Indenture and is on fair and reasonable terms; (c) any transaction otherwise permitted by the terms of the section of 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 Restricted Subsidiary; (e) licensing or sublicensing of use of any intellectual property by the Company or any Restricted Subsidiary to any Restricted 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 Restricted Subsidiary of the Company for the purpose of providing services or employees to such 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 (Town & Country Corp)
Limitation on Transactions with Affiliates. (a) The Company will Borrower shall not, and will shall not permit any of its Restricted Subsidiaries 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 Borrower (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 terms:
(1) that are no less favorable to the Company Borrower 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,
(2) 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 $3.0 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 $7.0 million, either 25,000,000,
(A) such transaction or series of related transactions has are set forth in writing, and
(B) have been approved by a majority of the Disinterested Directors members of the CompanyBoard of Directors having no personal stake in such Affiliate Transaction; and
(3) that, or in the event there is only one Disinterested Directorsuch Affiliate Transaction involves an amount in excess of $75,000,000, have been determined by such Disinterested Directora nationally recognized appraisal, accounting 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 be fair, from a financial point standpoint, to the Borrower and its Restricted Subsidiaries.
(b) The provisions of view; provided, however, that this provision shall not apply to: Section 6.05
(a) will not prohibit:
(1) any Restricted Payment permitted to be paid pursuant to Section 6.02;
(2) 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 stock ownership plans approved by the Board of Directors;
(3) the grant of stock options or similar rights to employees and directors of the Borrower pursuant to plans approved by the Board of Directors,
(4) loans or advances to employees in the ordinary course of business of the Borrower;
(5) the payment of reasonable fees and compensation and to, or the provision of employee benefit arrangements with any officerand indemnity for the benefit of, director or employee directors, officers and employees of the Company, including under any stock option or stock incentive plans, Borrower and its Restricted Subsidiaries in the ordinary course of business; ;
(b6) any transaction solely between or among the Company and/or any Restricted Subsidiaries, if such transaction is otherwise in compliance with this Indenture and is on fair and reasonable terms; (c) any transaction otherwise permitted by the terms of the section of 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 Restricted Subsidiary; (e) licensing or sublicensing of use of any intellectual property by the Company or Borrower, any Restricted Subsidiary to or any joint venture or similar entity which would constitute an Affiliate Transaction solely because the Borrower or a Restricted 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 Restricted Subsidiary of the Company for the purpose of providing services owns an equity interest in or employees to otherwise controls such Restricted Subsidiary, joint venture or similar entity;
(7) the issuance or sale of any Capital Stock (other than Disqualified Stock) of the Borrower;
(8) any agreement as in effect on the Restatement Date described in the Borrower's SEC filings as filed on or prior to the Restatement Date, or any renewals, extensions or amendments of any such agreement (so long as such renewals, extensions or amendments are not less favorable in any material respect to the Borrower or its Restricted Subsidiaries) and the transactions evidenced thereby;
(9) 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 Agreement which are fair to the Borrower or its Restricted Subsidiaries, in the reasonable determination of the Board of Directors or the senior management thereof, or are on terms at least as favorable as could reasonably have been obtained at such time from an unaffiliated party; or
(g10) any transaction entered into for the purpose effected as part 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 hereofa Qualified Receivables Transaction.
Appears in 1 contract
Sources: Second Lien Credit Agreement (Goodyear Tire & Rubber Co /Oh/)
Limitation on Transactions with Affiliates. (a) The Company will shall not, and will shall not permit any of its Restricted Subsidiaries or Salmon Creek (or any successor to Salmon Creek or any transferee of substantially all of the assets of Salmon Creek so long as such successor or transferee is a Subsidiary of the Company) or any Unrestricted Subsidiary to which the Company or any of its Restricted Subsidiaries makes a contribution of non-cash proceeds received in respect of a Salmon Creek Distribution pursuant to Section 4.04(d) (each, a "Company Party") 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 Company, unless: (other than i) 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 not less favorable to the Company or such Restricted Subsidiary, as the case may be, Party than those that would could reasonably be reasonably expected to be available obtained in a comparable transaction at such time with a person who is not an Affiliate of the Company; (ii) such transaction shall have been approved as meeting such standard, in arm's-length dealings with an unrelated third partygood faith, by a majority of the members of the Board of Directors; and (biii) with respect to any transaction or series of related transactions involving aggregate value payments and consideration in excess of $3.0 million10,000,000, the Company delivers an Officers' Certificate shall have obtained and made available to the Trustee certifying an opinion of a nationally recognized investment banking firm stating that the terms 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 $7.0 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 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 Restricted Subsidiary from a financial point of view; providedview to the Company Party. The Company shall deliver to the Trustee, howeverwithin 60 days after the end of each fiscal quarter of the Company, that this provision an Officers' Certificate which shall briefly describe and specify the aggregate dollar amount of transactions (other than the transactions set forth in Section 4.08(b), except clause (vii) thereof)) with Affiliates of the Company occurring during such fiscal quarter.
(b) The provisions contained in Section 4.08(a) 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; (bi) any transaction solely between permitted by Section 4.04(a) or among the Company and/or any Restricted SubsidiariesSection 4.04(c)(i), if such transaction is otherwise in compliance with (v), (vi) and (vii) of this Indenture and is on fair and reasonable termsIndenture; (cii) any transaction otherwise permitted by the terms of the section of 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 Restricted Subsidiary; (e) licensing or sublicensing of use of any intellectual property by the Company or any Restricted Subsidiary to any Restricted 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 Restricted Subsidiary of the Company for the purpose of providing services or employees to such 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.the
Appears in 1 contract
Sources: Indenture (Maxxam Inc)
Limitation on Transactions with Affiliates. (a) The Company will shall not, and will shall not permit any of its Restricted 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 or for the benefit of any Affiliate of the Company 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 on terms that are no less favorable to the Company or such Restricted Subsidiary, as the case may be, than those that would could reasonably be reasonably expected to be available obtainable at such time in a comparable transaction in arm's-length dealings with an unrelated third party, and (b2) the Company delivers to the Trustee (a) with respect -40- to any transaction or series of related transactions involving aggregate value payments in excess of $3.0 million500,000, the Company delivers an Officers' Certificate to the Trustee certifying that such transaction or series of related transactions complies with clause (a1) above, above and (cb) with respect to any transaction or series of related transactions involving aggregate value payments in excess of $7.0 2.0 million, either (A) an Officer's Certificate certifying that such transaction or series of related transactions has been approved by a majority of the Disinterested members of the Board of Directors of the Company, and (c) with respect to any transaction or series of transactions involving aggregate payments in excess of $5.0 million, an opinion as to the event there is only one Disinterested Director, by such Disinterested Director, or (B) fairness of the transaction to the Company delivers to the Trustee from a written opinion financial point of view issued by an accounting, appraisal or 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 standing.
(b) Section 4.11(a) shall 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 Company or any stock option or stock incentive plans, of its Restricted Subsidiaries entered into in the ordinary course of business; business (b) any transaction solely between including customary benefits thereunder and including reimbursement or among the Company and/or any Restricted Subsidiariesadvancement of out-of-pocket expenses, if such transaction is otherwise in compliance with this Indenture and is on fair director's and reasonable terms; officer's liability insurance), (c) any transaction otherwise permitted by the terms of the section of 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 Restricted Subsidiary; (e) licensing or sublicensing of use of any intellectual property by the Company or any Restricted Subsidiary to any Restricted 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 Restricted Subsidiary of the Company for the purpose of providing services or employees to such Restricted Subsidiary; (gii) any transaction entered into for by or among the purpose Company or one of granting its Restricted Subsidiaries with one or altering registration rights with respect to the Capital Stock more Restricted Subsidiaries of the Company; and , (hiii) any transaction or series permitted by Section 4.10(b), (iv) transactions permitted by, and complying with, the provisions described under Section 5.01, and (v) any transaction described under the caption "Use of related transactions entered into prior to Proceeds" in the date hereofOffering Memorandum.
Appears in 1 contract
Limitation on Transactions with Affiliates. The Company will shall not, and will shall not permit any of its Restricted 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 or any Restricted Subsidiary (other than the Company or a Wholly Owned Restricted Subsidiary) (collectively, "Interested Persons"), 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 or such Restricted Subsidiary, as the case may be, than those that would be reasonably expected could have been able to be available obtained in a comparable transaction in an arm's-length dealings transaction with an unrelated third partyparties that are not Interested Persons, (bii) with respect to any transaction or series of related transactions involving aggregate value in excess of consideration equal to or greater than $3.0 million1,000,000, the Company delivers has delivered an Officers' Certificate to the Trustee certifying that such transaction or series of related transactions complies with clause (ai) above, above and (ciii) with respect to any transaction or series of related transactions involving aggregate value in excess of consideration equal to or greater than $7.0 million5,000,000, either (A) such transaction or series of related transactions (x) has been approved by the Board of Directors of the Company (including a majority of the Disinterested Directors of the Company, or in the event there is only one Disinterested Director, by such Disinterested Director, ) or (By) the Company delivers to the Trustee has obtained a written opinion of an from a nationally recognized investment banking or valuation 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 or such its Restricted Subsidiary Subsidiary, as the case may be, from a financial point of view; provided, however, that this provision Section 1011 shall not apply to: restrict (a1) the Company 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 Restricted Subsidiaries, if such transaction is otherwise in compliance with this Indenture and is on fair and reasonable terms; (c) any transaction otherwise permitted by the terms of the section of 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 Restricted Subsidiary; (e) licensing or sublicensing of use of any intellectual property by the Company or any Restricted Subsidiary who are not employees of the Company or any Restricted Subsidiary, (2) the payment of management fees to Permitted Holders in an aggregate amount not to exceed $500,000 per year, (3) loans and advances to officers, directors and employees of the Company or any Restricted Subsidiary in the ordinary course of business in accordance with the past practices 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 or any Restricted Subsidiary of not to exceed $3,000,000 in the Company for the purpose of providing services or employees to such Restricted Subsidiary; aggregate outstanding at any time, (g4) any transaction entered into for transactions made in compliance with Section 1009, (5) the purpose issuance and sale of granting or altering registration rights with respect to the Qualified Capital Stock of the Company; Company to Persons who are stockholders of the Company at the time of such issuance and sale and (h6) the performance of any transaction or series written agreement as in effect on the date of related transactions entered into prior this Indenture and as amended from time to time, provided that any such amendment is not less favorable in any material respect to the Company or any Restricted Subsidiary than the terms of such agreement as in effect on the date hereofof this Indenture.
Appears in 1 contract
Sources: Indenture (Tmil Corp)
Limitation on Transactions with Affiliates. (a) The Company will shall not, and will shall not permit any of its Restricted Subsidiaries 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 of the Company (other than the Company or a Wholly Owned SubsidiaryRestricted Subsidiary (an "Affiliate Transaction") unless such transaction or series of related transactions is entered into in good faith and in writing and the terms thereof (a1) 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, Subsidiary than those that would could be reasonably expected to be available obtained at the time of such transaction in a comparable transaction in arm's-length dealings with a Person who is not such an unrelated third partyAffiliate, (b2) with respect to any transaction or series of related transactions involving aggregate value if such Affiliate Transaction involves an amount in excess of $3.0 2.0 million, the Company delivers an Officers' Certificate to the Trustee certifying that such transaction or series of related transactions complies with clause (ai) above, are set forth in writing and (cii) with respect to any transaction or series of related transactions involving aggregate value in excess of $7.0 million, either (A) such transaction or series of related transactions has have been approved by a majority of the Disinterested Directors members of the CompanyBoard of Directors having no material personal financial stake in such Affiliate Transaction, or and (3) if such Affiliate Transaction involves an amount in the event there is only one Disinterested Directorexcess of $7.5 million, have been determined by such Disinterested Director, or (B) the Company delivers to the Trustee a written opinion of an nationally recognized 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 be fair, from a financial standpoint, to the Company or such its Restricted Subsidiary, as the case may be.
(b) The foregoing provisions of Section 4.7(a) shall not prohibit (i) any Permitted Investment or Restricted Payment permitted to be made pursuant to Section 4.4, or any payment or transaction specifically excepted from the definition of Restricted Payment, (ii) any issuance of securities, or other payments, awards or grants in cash, securities or otherwise pursuant to, or the funding of, employment arrangements, collective bargaining arrangements, employee benefit plans, health and life insurance plans, deferred compensation plans, directors' and officers' indemnification agreements, retirement or savings plans, stock options and stock ownership plans or any other similar arrangement heretofore or hereafter entered into in the ordinary course of business and approved by the Board of Directors of the Company or any Restricted Subsidiary, (iii) the grant of stock options or similar rights to employees and directors pursuant to plans approved by the Board of Directors or the board of directors of the relevant Restricted Subsidiary from a financial point (iv) loans or advances to officers, directors or employees heretofore or hereafter entered into in the ordinary course of view; provided, however, that this provision shall not apply to: (a) business or pursuant to compensation and employee benefit arrangements with any officer, director plans or employee employment agreements approved by the board of directors of the CompanyCompany or any Restricted Subsidiary, including under (v) the payment of reasonable fees to directors of the Company and its Restricted Subsidiaries who are not employees of the Company or its Restricted Subsidiaries, (vi) any stock option transaction between the Company and a Restricted Subsidiary or stock incentive plansbetween Restricted Subsidiaries, (vii) the purchase of or the payment of Indebtedness of or monies owed by the Company or any of its Restricted Subsidiaries for goods or materials purchased, or services received, in the ordinary course of business; , (bviii) any transaction solely management agreements between or among the Company and/or any Restricted Subsidiaries, if such transaction is otherwise in compliance with this Indenture and is on fair and reasonable terms; (c) any transaction otherwise permitted by the terms of the section of 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 Restricted Subsidiary; (e) licensing or sublicensing of use of any intellectual property by the Company or any of its Restricted Subsidiary Subsidiaries and one or more Permitted Holders, or any of their respective Affiliates providing for management fees not to exceed $350,000 per year to WESS or any Restricted Subsidiary of its Affiliates and $350,000 per year to Oaktree or any of its Affiliates; (ix) transaction fees to WESS, Oaktree, or any of their respective Affiliates for services provided in connection with the acquisition of a majority of the Company; provided that outstanding ordinary shares of LEP International Worldwide Limited, the licensor shall continue Bank Credit Agreement and the Offering in an amount not to have access to such intellectual property to exceed $2.5 million in the extent necessary for aggregate and (x) the conduct of its respective business; (f) arrangements between the Company and any Restricted Subsidiary performance of the Company for the purpose of providing services or employees to such 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.agreement between WESS, W.
Appears in 1 contract
Sources: Indenture (Bekins Co /New/)
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 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 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 (b) with respect to any transaction or series of related transactions involving aggregate value in excess of $3.0 million5,000,000, 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 $7.0 million, either (A) such transaction or series of related transactions has been approved by the Board of Directors of the Company (and approved by a majority of the Disinterested Independent Directors of the Company, or in the event there is only one Disinterested Independent Director, by such Disinterested Independent Director); PROVIDED, 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, howeverHOWEVER, that this provision shall not apply to: to (aA) any transaction with an officer or director of the Company entered into in the ordinary course of business (including compensation and or employee benefit arrangements with any officer, officer or director of the Company) and (B) transactions pursuant to agreements in existence on the date of this Indenture. This limitation shall not apply to (i) transactions among the Company and its wholly owned Subsidiaries or employee among wholly owned Subsidiaries of the Company, including under any stock option or stock incentive plans, in (ii) the ordinary course provision of business; (b) any transaction solely between or among directors and officers insurance for the Company and/or any Restricted Subsidiaries, if such transaction is otherwise in compliance with this Indenture and is on fair and reasonable terms; (c) any transaction otherwise permitted by the terms benefit of the section directors and officers of this Indenture described in Section 1009; the Company, (diii) the execution indemnification payments to directors and delivery of or payments made under any tax sharing agreement between or among any officers of the Company in accordance with applicable state law and any Restricted Subsidiary; (eiv) licensing or sublicensing payments to all holders of use of any intellectual property by the Company or any Restricted Subsidiary to any Restricted 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 Restricted Subsidiary of the Company for the purpose of providing services or employees to such 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 hereofCompany on a pro rata basis.
Appears in 1 contract
Sources: Indenture (Loehmanns Holdings Inc)
Limitation on Transactions with Affiliates. (a) The Company Issuer will not, and will not permit any of its Restricted Subsidiaries Subsidiary to, directly or indirectly, enter into or conduct any transaction or series of related transactions (includingincluding the purchase, without limitation, the sale, purchaselease or exchange of any property, exchange employee compensation arrangements or lease the rendering of assets, property or servicesany service) with or for the benefit of any Affiliate of the Company Issuer (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 in good faith and in writing and (a) such transaction or series of related transactions is on terms that transaction, taken as a whole, 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 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, Affiliate; (bii) 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 $3.0 5.0 million, the Company delivers an Officers' Certificate to the Trustee certifying that terms of such transaction or series of related transactions complies with clause (a) above, are set forth in writing and (c) with respect to any transaction or series of related transactions involving aggregate value in excess of $7.0 million, either (A) such transaction or series of related transactions has shall have been approved by a majority of the Disinterested Directors members of the Company, or Board of Directors having no personal stake in such Affiliate Transaction (and such majority determines that such Affiliate Transaction satisfies the criteria in clause (i) above) and (iii) in the event there is only one Disinterested Directorsuch Affiliate Transaction involves an aggregate amount in excess of $10.0 million, by such Disinterested Director, or (B) the Company delivers to the Trustee Issuer has received a written opinion of an from a nationally recognized 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 such Affiliate Transaction is fair to the Company or such Issuer and its Restricted Subsidiary Subsidiaries from a financial point of view; .
(b) The provisions of paragraph (a) of this Section 4.8 shall not prohibit (i) any Restricted Payment permitted to be made pursuant to Section 4.5, (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 and stock ownership plans approved by the Board of Directors of the Issuer, or any arrangements relating thereto, (iii) the grant of stock options or similar rights to employees and directors of the Issuer pursuant to plans approved by the Board of Directors of the Issuer, (iv) loans or advances to employees in the ordinary course of business in accordance with the past practices of the Issuer or its Restricted Subsidiaries, (v) the payment of reasonable fees to directors of the Issuer and its Restricted Subsidiaries who are not employees of the Issuer or its Restricted Subsidiaries, (vi) any transaction between the Issuer and a Restricted Subsidiary or between Restricted Subsidiaries, (vii) the issuance or sale of any Capital Stock (other than Disqualified Stock) of the Issuer, (viii) any transaction consummated pursuant to the terms of any agreement described in the Form 10-K for the year ended December 43 39 31, 1999, including the exhibits and documents included by reference therein, giving effect to any subsequent supplements, amendments, modifications or alterations thereof that are approved by the disinterested members of the Issuer's Board of Directors, (ix) any transaction in the ordinary course of business between the Issuer or any Restricted Subsidiary and any Affiliate of the Issuer relating to the acquisition, management, construction, leasing or licensing of Tower Assets, provided, however, that this provision shall not apply to: such transaction is on terms that are no less favorable, taken as a whole, to the Issuer or the relevant Restricted Subsidiary than those that could have been obtained in a comparable transaction by the Issuer or such Restricted Subsidiary with an unrelated Person or is otherwise on terms that, taken as a whole, the Issuer has determined to be fair to the Issuer or the relevant Restricted Subsidiary) and (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; (bx) any transaction solely between the Issuer or among the Company and/or any Restricted Subsidiaries, if such transaction is otherwise in compliance with this Indenture and is on fair and reasonable terms; (c) any transaction otherwise permitted by the terms of the section of 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 its Restricted Subsidiaries and any Restricted Subsidiary; (e) licensing or sublicensing of use of any intellectual property by the Company or any Restricted Subsidiary to any Restricted 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 Restricted Subsidiary of the Company for the purpose of providing services Affiliates involving ordinary course investment banking, commercial banking or employees to such 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 hereofactivities.
Appears in 1 contract
Sources: Indenture (Spectrasite Holdings Inc)
Limitation on Transactions with Affiliates. (a) The Company will shall not, and will shall not permit any of its Restricted Subsidiaries Subsidiary to, directly or indirectlyand each Restricted Entity shall not, enter into or permit to exist any transaction (including the purchase, sale, lease or series exchange of any property, employee compensation arrangements or the rendering of any service) with, or for the benefit of, any Affiliate of the Company (an “Affiliate Transaction”) involving (together with any related Affiliate Transactions) aggregate consideration in excess of $10 million, unless:
(1) the terms of the Affiliate Transaction are not materially less favorable taken as a whole to the Company or such Restricted Entity than those that could be obtained at the time of the Affiliate Transaction in arm’s-length dealings with a Person who is not an Affiliate; and
(2) if such Affiliate Transaction (together with any related Affiliate Transactions) involves an amount in excess of $15.0 million, the terms of the Affiliate Transaction are set forth in writing and a majority of the non-employee directors of the General Partner disinterested with respect to such Affiliate Transaction have determined in good faith that the criteria set forth in clause (1) are satisfied and have approved the relevant Affiliate Transaction.
(b) The provisions of the preceding paragraph (a) shall not prohibit:
(1) Restricted Payments, in each case permitted to be made pursuant to Section 4.08, and Permitted Investments;
(2) 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 stock ownership plans approved by the Board of Directors of the Company;
(3) loans or advances to employees in the ordinary course of business in accordance with the past practices of the Company or the Restricted Entities, but in any event not to exceed $2.5 million in the aggregate outstanding at any one time;
(4) the payment of reasonable and customary fees to, and indemnity provided on behalf of, officers, directors, employees or consultants of the Company or the Restricted Entities;
(5) transactions between or among the Company and the Restricted Entities;
(6) the issuance or sale of any Capital Stock (other than Disqualified Stock) of the Company and the granting and the performance of registration rights;
(7) any agreement as in effect on the Issue Date and identified in the Offering Memorandum, as these agreements may be amended, modified, supplemented, extended or renewed from time to time (so long as any amendment, modification, supplement, extension or renewal is not materially less favorable, taken as a whole, to the Company and the Restricted Entities) and the transactions evidenced or contemplated thereby or as these agreements may be extended or renewed in accordance with this clause (7);
(8) 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 Company and the Restricted Entities, in the reasonable determination of the Board of Directors of the General Partner or the senior management of the Company, or are on terms at least as favorable as might reasonably have been obtained at such time from an unaffiliated party;
(9) the entering into agreements with equity holders of the Company or the General Partner in connection with a Parent Roll-up Transaction relating to such equity, including, without limitation, the sale, purchase, exchange entering into and performance of shareholder agreements and registration rights agreements and amendments to existing similar agreements; and
(10) Affiliate Transactions with a person solely in its capacity as a holder of debt 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 equity securities where such Person is treated no more favorably 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 than any other security holders who 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 $3.0 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 $7.0 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 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: (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 Restricted Subsidiaries, if such transaction is otherwise in compliance with this Indenture and is on fair and reasonable terms; (c) any transaction otherwise permitted by the terms of the section of 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 Restricted Subsidiary; (e) licensing or sublicensing of use of any intellectual property by the Company or any Restricted Subsidiary to any Restricted 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 Restricted Subsidiary of the Company for the purpose of providing services or employees to such 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 hereofAffiliates.
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 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 is on terms (1) that are no less materially 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, (b2) with respect to any transaction or series of related transactions involving that, in the event such Affiliate Transaction involves an aggregate value amount in excess of $3.0 25 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 $7.0 million, either (A) such transaction or series of related transactions has are set forth in writing and (B) have been approved by a majority of the Disinterested Directors members of the CompanyBoard of Directors having no personal stake in such Affiliate Transaction and (3) that, or in the event there is only one Disinterested Directorsuch Affiliate Transaction involves an amount in excess of $50 million, have been determined by such Disinterested Director, a nationally recognized appraisal 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 be fair, from a financial standpoint, to the Company and its Restricted Subsidiaries.
(b) The provisions of Section 4.07(a) shall not prohibit (1) any Restricted Payment permitted to be paid pursuant to Section 4.04, (2) any issuance of securities, or such 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 in good faith, (3) the grant of stock options or similar rights to employees and directors of the Company or any of its Restricted Subsidiaries pursuant to plans approved by the Board of Directors in good faith, (4) loans or advances to employees, directors or consultants in the ordinary course of business, which are approved by the Board of Directors in good faith in an amount not to exceed $10 million outstanding at any one time, (5) the payment of reasonable and customary fees to, and indemnity provided on behalf of, officers, directors, employees or consultants of the Company and its Subsidiaries, (6) any transaction between the Company and a Restricted Subsidiary from or between Restricted Subsidiaries, (7) the existence of, or the performance by the Company or any 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 financial point party as of viewthe Closing Date on the terms described in the Offering Memorandum and any similar agreements which it may enter into thereafter; provided, however, that the existence of, or the performance by the Company or any of its Restricted Subsidiaries of its obligations under, any future amendment to such existing agreement or under any similar agreement entered into after the Closing Date shall only be permitted by this provision shall clause (7) to the extent that the terms of any such amendment or new agreement are not apply to: disadvantageous to the Holders of the Securities in any material respect, (a8) the issuance or sale of Capital Stock (other than Disqualified Stock) compensation and employee benefit arrangements with any officer, director or employee of the Company, including under Intermediate Holdings, HDD Holdings or the Issuer to any stock option or stock incentive plansPermitted Holder, in (9) the ordinary course of business; (b) any transaction solely between or among payment by the Company and/or or any of its Restricted SubsidiariesSubsidiaries of (i) annual management, if such transaction is otherwise in compliance with this Indenture consulting, monitoring and is on fair advisory fees and any related and reasonable terms; (c) any transaction otherwise permitted by the terms of the section of this Indenture described in Section 1009; (d) the execution and delivery of or payments made under any tax sharing agreement between or among out-of-pocket expenses to any of the Company Sponsors in an aggregate amount, for all the Sponsors, not to exceed $5 million in any calendar year and (ii) fees to any Restricted Subsidiary; (e) licensing of the Sponsors paid for any financial advisory, financing, underwriting or sublicensing of use of placement services including, without limitation, in connection with any intellectual property acquisition transaction or divestiture entered into by the Company or any Restricted Subsidiary Subsidiary; provided, however, that the aggregate amount of fees paid to any Restricted Subsidiary all of the Company; provided that Sponsors under this clause (ii) in respect of any transaction shall not exceed the licensor shall continue lesser of (A) 25% of the total amount of such transaction and (B) the greater of 2% of the total amount of such transaction and $2 million, (10) 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 Company or its Restricted Subsidiaries, in the good faith determination of the Board of Directors or the senior management thereof, or are on terms at least as favorable as might reasonably have access been obtained at such time from an unaffiliated party, (11) any agreement as in effect as of the Closing Date on the terms described in the Offering Memorandum or any amendment thereto (so long as any such amendment is not disadvantageous to such the Holders of the Securities in any material respect) or any transaction contemplated thereby, (12) the payment of all fees and expenses related to the Transactions, including fees to each of the Sponsors, on the terms described in the Offering Memorandum, or (13) any licensing agreement or similar agreement entered into in the ordinary course of business relating to the use of technology or intellectual property to the extent necessary for the conduct between any of its respective business; (f) arrangements between the Company and its Subsidiaries, on the one hand, and any Restricted Subsidiary company or other Person which is an Affiliate of the Company for or its Subsidiaries by virtue of the purpose of providing services fact that a Sponsor has made an Investment in or employees to such Restricted Subsidiary; (g) owns 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 such company or series of related transactions entered into prior other Person which are fair to the date hereofCompany or its Restricted Subsidiaries, in the reasonable determination of the Board of Directors or the senior management thereof, or are on terms at least as favorable as might reasonably have been obtained at such time from an unaffiliated party.
Appears in 1 contract
Sources: Indenture (Seagate Technology Malaysia Holding Co Cayman Islands)
Limitation on Transactions with Affiliates. (a) The Company will not, and will not permit any of its Restricted Subsidiaries to, directly make any payment to, or indirectlysell, lease, transfer or otherwise dispose of any of its properties or assets to, or purchase any property or assets from, or enter into or make or amend any transaction transaction, contract, agreement, understanding, loan, advance or series guarantee with (which term, for purposes of related transactions (includingthis Section 4.11, without limitation, the sale, purchase, exchange or lease of assets, property or services) with or shall include “for the benefit of of” where appropriate in the context) any Affiliate of the Company (other than each, an “Affiliate Transaction”) involving aggregate payments or consideration in excess of $50.0 million, unless:
(1) 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 Affiliate Transaction is on terms that are no not materially less favorable to the Company or such the relevant Restricted Subsidiary, taken as the case may bea whole, than those that would be reasonably expected to be available have been obtained in a comparable transaction in arm's-length dealings by the Company or such Restricted Subsidiary with an unrelated third party, Person; and
(b2) with respect to any transaction or series of related transactions Affiliate Transaction involving aggregate value payments or consideration in excess of $3.0 100.0 million, the Company delivers an Officers' Certificate to the Trustee a resolution of the Board of Directors of the Company set forth in an Officers’ Certificate certifying that such transaction or series of related transactions Affiliate Transaction complies with clause (a) above, this Section 4.11 and (c) with respect to any transaction or series of related transactions involving aggregate value in excess of $7.0 million, either (A) that such transaction or series of related transactions Affiliate Transaction has been approved by a majority of the Disinterested members of the Board of Directors of the Company.
(b) The following items will be deemed not to be Affiliate Transactions and, therefore, will not be subject to the provisions of clause (a) of this Section 4.11:
(1) any employment, consulting or other compensation arrangement or agreement, employee or compensation benefit plan, officer or director compensation or indemnification agreement or any similar arrangement entered into by the Company or any of its Restricted Subsidiaries in the ordinary course of business and payments pursuant thereto;
(2) transactions between or among the Company and/or its Restricted Subsidiaries;
(3) transactions with a Person that is an Affiliate of the Company solely because the Company owns, directly or through a Restricted Subsidiary, a Capital Interest in, or controls, such Person;
(4) [reserved];
(5) any issuance or sale of Qualified Capital Interests of the Company and the granting of registration and other customary rights in connection therewith;
(6) Restricted Payments that do not violate the provisions of Section 4.07 hereof, Permitted Investments, and payments described in, but excluded from, the definitions of “Restricted Payment” and “Permitted Investments” and their component definitions;
(7) the grant of stock options, restricted stock, stock appreciation rights, phantom stock awards or similar rights or Capital Interests to directors, officers, employees and consultants that are approved by the Board of Directors of the Company or any of its Restricted Subsidiaries in the event there is only one Disinterested Director, by such Disinterested Directorordinary course of business;
(8) the existence of, or (B) the performance by the Company or any of its Restricted Subsidiaries under the terms of, any agreement or instrument as in effect on the Issue Date or any amendment thereto (so long as any such agreement or instrument together with all amendments thereto, taken as a whole, is not more disadvantageous to the Holders of the Notes in any material respect than the original agreement or instrument as in effect on the Issue Date) or any transaction contemplated thereby;
(9) transactions that are necessary or advisable in order to comply with Regulatory Requirements;
(10) transactions in which the Company or any of its Restricted Subsidiaries, as the case may be, 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 or such Restricted Subsidiary from a financial point of view; providedview or stating that the terms are not materially less favorable to the Company or its relevant Restricted Subsidiary than those that would have been obtained in a comparable transaction by the Company or such Restricted Subsidiary with an unrelated Person;
(11) transactions with customers, howeverclients, suppliers, or purchasers or sellers of goods or services, in each case in the ordinary course of business that this provision shall not apply to: (a) compensation are fair to the Company and employee benefit arrangements with any officer, director or employee its Restricted Subsidiaries in the good faith judgment of the Company, including or are on terms at least as favorable as might reasonably have been obtained at such time from an unaffiliated party;
(12) any transaction with a Qualified Securitization Entity that is not prohibited under this Indenture;
(13) payments of reasonable fees, expenses and indemnity to, and loans (or cancellation of loans) to, former, current and future employees, officers, directors, management personnel or consultants of the Company or any of its Subsidiaries and employment agreements, collective bargaining agreements, stock option or stock incentive plans, benefit plans, other similar arrangements and related trust arrangements with such Persons which, in each case, are approved by the Company in good faith;
(14) payments to and from, and transactions with, any Joint Venture in the ordinary course of business; ;
(b15) transactions with Persons solely in their capacity as holders of a minority of any class of Debt or Capital Interests of the Company or any of its Restricted Subsidiaries, where such Persons are treated no more favorably than holders of such class of Debt or Capital Interests of the Company or such Restricted Subsidiary generally;
(16) any transaction solely between or among with any Person who is not an Affiliate of the Company and/or immediately before the consummation of such transaction that becomes an Affiliate as a result of such transaction;
(17) transactions permitted by, and complying with, Section 5.01 hereof;
(18) transactions between the Company or any of its Restricted Subsidiaries and any Person, a director of which is also a director of the Company or any of its Subsidiaries, if such transaction is otherwise in compliance with this Indenture and is on fair and reasonable terms; (c) any transaction otherwise permitted by the terms of the section of this Indenture described in Section 1009; (d) the execution and delivery of or payments made under any tax sharing agreement between or among any director abstains from voting as a director of the Company and or such Subsidiary, as the case may be, on any Restricted Subsidiarymatter involving such other Person; and
(e19) licensing pledges of Capital Interests in, or sublicensing of use of any intellectual property by the Company or any Restricted Subsidiary to any Restricted 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 Restricted Subsidiary of the Company for the purpose of providing services or employees to such 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 hereofDebt of, Unrestricted Subsidiaries.
Appears in 1 contract
Limitation on Transactions with Affiliates. The Company will Holdings 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, purchaselease, contribution 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 its Affiliates (other than the Company transactions between Holdings and a Restricted Subsidiary of Holdings or a Wholly Owned Subsidiaryamong Restricted Subsidiaries of Holdings) 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 the Company or such Restricted Subsidiary, as the case may be, than those that would be might reasonably expected to be available 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 partyAffiliate; provided, (b) with respect to any however, that for a transaction or series of related transactions involving aggregate value in excess of $3.0 million5,000,000 or more, such determination shall be made in good faith by a majority of members of the Company delivers an Officers' Certificate to Board of Directors of Holdings and by a majority of the Trustee certifying disinterested members of the Board of Directors of Holdings, if any; provided, further, that such transaction or series of related transactions complies with clause (a) above, and (c) with respect to any for a transaction or series of related transactions involving aggregate value in excess of $7.0 million15,000,000 or more, either (A) such transaction or series the board of related transactions directors of Holdings 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 received an opinion of from an independent investment banking firm of national nationally recognized 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 that such Affiliate Transaction is required stating that the transactions or series of related transactions is fair to the Company or such Restricted Subsidiary fair, from a financial point of view; provided, however, that this provision to Holdings or such Restricted Subsidiary. The foregoing restrictions shall not apply to: to (a1) compensation reasonable and employee benefit customary directors' fees, indemnification and similar arrangements and payments thereunder; (2) any obligations of Holdings under any employment agreement, noncompetition or confidentiality agreement with any officer, director or employee officer of Holdings as in effect on the Issue Date (provided that each amendment of any of the Companyforegoing agreements shall be subject to the limitations of this covenant); (3) any Restricted Payment permitted to be made pursuant to Section 4.09; (4) any issuance of securities, including under any 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 approved by the Board of Directors of Holdings; (5) loans or stock incentive plans, advances to employees in the ordinary course of businessbusiness of Holdings or any of its Restricted Subsidiaries consistent with past practices; (b6) any transaction solely between or among payments made in connection with the Company and/or any Restricted SubsidiariesTransaction and the Grand Rapids Acquisition, if such transaction is otherwise including, without limitation, fees to Hick▇ ▇▇▇e, as described in compliance the Offering Memorandum; and (7) payments by Holdings to Hick▇ ▇▇▇e Partners in accordance with this Indenture and is on fair and reasonable terms; (c) any transaction otherwise permitted by the terms of the section of this Indenture described in Section 1009; (d) Financial Advisory Agreement and the execution Monitoring and delivery of or payments made under any tax sharing agreement between or among any of the Company and any Restricted Subsidiary; (e) licensing or sublicensing of use of any intellectual property by the Company or any Restricted Subsidiary to any Restricted 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 Restricted Subsidiary of the Company for the purpose of providing services or employees to such 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 hereofOversight Agreement.
Appears in 1 contract
Sources: Indenture (WTNH Broadcasting Inc)
Limitation on Transactions with Affiliates. (a) The Company will shall not, and will shall not permit any of its Restricted Subsidiaries 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 $3.0 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 $7.0 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 payment of reasonable fees to, and indemnity provided on behalf of, directors, officer and employees of the Company delivers and its Subsidiaries, (iv) any transaction between the Company and a Restricted Subsidiary or between Restricted Subsidiaries, (v) transactions by the Company or any Restricted Subsidiary with Equistar or any Subsidiary thereof pursuant to any agreement as in effect as of the Closing Date or any amendment thereto or any similar agreement entered into after the Closing Date; provided, however, that any future amendment to such existing agreement or any such similar agreement shall not be permitted by this clause (v) to the Trustee a written opinion of an investment banking firm of national standing or other recognized independent expert with experience appraising extent that the terms and conditions of any such amendment or similar agreement are materially less favorable to the Company, any of its Restricted Subsidiaries or the Holders of the type Securities in any material respect, (vi) any transaction by the Company or any Restricted Subsidiary with Equistar or any Subsidiary thereof that, taken as a whole with any other transactions by the Company or any Restricted Subsidiary with Equistar or any of transaction its Subsidiaries that is entered into prior to or series of related transactions for which an opinion substantially concurrently with such transaction, is required stating on terms that the transactions or series of related transactions is fair are not materially less favorable to the Company or such Restricted Subsidiary from than those that could be obtained at the time of such transactions in arm's-length dealings with a financial point of view; provided, however, that this provision shall Person which is not apply to: (a) compensation and employee benefit arrangements with any officer, director or employee an Affiliate of the Company, including under any stock option or stock incentive plans, in the ordinary course of business; (bvii) any transaction solely between or among the Company and/or any Restricted Subsidiaries, if such transaction is otherwise in compliance with this Indenture and is on fair and reasonable terms; (c) any transaction otherwise permitted by the terms effected as part of the section of 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 Restricted Subsidiary; (e) licensing or sublicensing of use of any intellectual property by the Company or any Restricted Subsidiary to any Restricted 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 Restricted Subsidiary of the Company for the purpose of providing services or employees to such 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 hereofa Qualified Receivables Transaction.
Appears in 1 contract
Sources: Indenture (Millennium Chemicals Inc)
Limitation on Transactions with Affiliates. (a) The ------------------------------------------ Company will not, and will not permit any of its Restricted Subsidiaries Subsidiary to, directly or indirectly, enter into or conduct any transaction or series of related transactions (includingincluding the purchase, without limitation, the sale, purchaselease or exchange of any property, exchange employee compensation arrangements or lease the rendering of assets, property or servicesany service) with or for the benefit 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 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, Affiliate; (bii) 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 $3.0 million1,000,000, the Company delivers an Officers' Certificate to the Trustee certifying that terms of such transaction or series of related transactions complies with clause (a) above, are set forth in writing and (c) with respect to any transaction or series of related transactions involving aggregate value in excess of $7.0 million, either (A) such transaction or series of related transactions has shall have been approved by a majority of the Disinterested members of the Board of Directors of the Company, or Company having no personal stake in such Affiliate Transaction (and such majority determines that such Affiliate Transaction satisfies the criteria in clause (i) of this Section 4.8(a)) and (iii) in the event there is only one Disinterested Directorsuch Affiliate Transaction involves an aggregate amount in excess of $5,000,000, by such Disinterested Director, or (B) the Company delivers to the Trustee has received a written opinion of an from a nationally recognized 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 such Affiliate Transaction is fair to the Company or such and its Restricted Subsidiary Subsidiaries from a financial point of view; provided, however, that this provision .
(b) The foregoing provisions of Section 4.8(a) shall not apply prohibit:
(i) any Restricted Payment permitted to be made pursuant to Section 4.5;
(ii) any issuance of securities, or other payments, awards or grants in cash, securities or otherwise pursuant to: (a) compensation , or the funding of, employment arrangements, stock options and employee benefit arrangements with any officer, director or employee stock ownership plans approved by the Board of Directors of the Company, including under any ;
(iii) the grant of stock option options or stock incentive plans, similar rights to employees and directors of the Company pursuant to plans approved by the Board of Directors of the Company;
(iv) loans or advances to employees in the ordinary course of business; (b) any transaction solely between or among business in accordance with the past practices of the Company and/or any or its Restricted Subsidiaries, if such transaction is otherwise but in compliance with this Indenture and is on fair and reasonable terms; any event not to exceed $1.5 million in the aggregate outstanding at any one time;
(c) any transaction otherwise permitted by the terms of the section of this Indenture described in Section 1009; (dv) the execution payment of reasonable fees and delivery of or payments made under any tax sharing agreement between or among any indemnities to directors of the Company and any its Restricted Subsidiary; (e) licensing or sublicensing Subsidiaries who are not employees of use of any intellectual property by the Company or its Restricted Subsidiaries;
(vi) any Restricted transaction between the Company and a Wholly Owned Subsidiary to or between Wholly Owned Subsidiaries;
(vii) the issuance or sale of any Restricted Subsidiary Capital Stock (other than Disqualified Stock) of the Company; provided that and
(viii) the licensor shall continue payment to have access Genstar Investment Corporation or an affiliate of an annual management fee not to such intellectual property exceed an amount per annum equal to the extent necessary for the conduct greater of its respective business; (f) arrangements between the Company $900,000 and any Restricted Subsidiary of the Company for the purpose of providing services or employees to such Restricted Subsidiary; (g) any transaction entered into for the purpose of granting or altering registration rights with respect to the Capital Stock 0.3% of the Company; and (h) any transaction or series 's consolidated net sales, plus, in each case, the reimbursement of related transactions entered into prior to the date hereofreasonable out-of-pocket expenses.
Appears in 1 contract
Sources: Indenture (Prestolite Electric Inc)
Limitation on Transactions with Affiliates. The Company will shall not, and will shall not permit any of its Restricted Subsidiaries Project Company to, directly or indirectly, enter into into, permit to exist, renew or extend any transaction or series of related transactions (including, without limitation, the sale, purchase, exchange or lease of assets, any assets or property or the rendering of any services) with or for the benefit of any Affiliate of the Company (other than the Company or a Wholly Owned SubsidiaryProject Company) unless (i) the terms of such transaction or series of related transactions is entered into in good faith and in writing and are (aA) such transaction or series of related transactions is on terms that are no less favorable to the Company or such Restricted SubsidiaryProject Company, as the case may be, than those that would be reasonably expected to be available obtainable in a comparable transaction or series of related transactions in arm's-length dealings with an unrelated third partyparty and (B) set forth in writing, if such transaction or series of related transactions involve aggregate payments or consideration in excess of $1,000,000, and (bii) with respect to any a transaction or series of related transactions involving aggregate the sale, purchase, lease or exchange of property or assets having a value in excess of $3.0 million5,000,000, the Company delivers an Officers' Certificate to the Trustee certifying that such transaction or series of related transactions complies with clause (a) above, and (c) with respect to any transaction or series of related transactions involving aggregate value in excess of $7.0 million, either (A) such transaction or series of related transactions has been approved by a majority of the Disinterested Directors disinterested members of the CompanyBoard of Directors or, or in if there are no disinterested members of the event there is only one Disinterested DirectorBoard of Directors, by such Disinterested Director, or (B) the Company delivers to the Trustee Board of Directors shall have received a written opinion of an a internationally recognized investment banking firm of national standing or other recognized independent expert with experience appraising the terms and conditions of the type of stating 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 Restricted Subsidiary Project Company from a financial point of view; provided, however, that this provision shall . The foregoing provisions do not apply to: prohibit:
(ai) compensation and employee benefit arrangements with any officer, director or employee the payment of reasonable fees to directors of the Company and the Project Companies who are not employees of the Company or a Project Company;
(ii) any transaction between the Company and a Wholly Owned Subsidiary or between Wholly Owned Subsidiaries not otherwise prohibited by the terms of this Indenture;
(iii) the payment of any Restricted Payment which is expressly permitted to be paid pursuant to Section 3.03(b);
(iv) any issuance of securities or other reasonable payments, including under any awards or grants, in cash or otherwise, pursuant to, or the funding of, employment arrangements approved by the Board of Directors;
(v) the grant of stock option options or stock incentive plans, similar rights to employees and directors of the Company pursuant to plans approved by the Board of Directors;
(vi) loans or advances to employees in the ordinary course of business; ;
(bvii) any transaction solely between repurchase, redemption or among other retirement of Equity Interests of the Company and/or held by employees of the Company or any Restricted Subsidiariesof the Project Companies upon death, if disability or termination of employment at a price not in excess of the fair market value thereof approved by the Board of Directors or other governing body of such Project Company;
(viii) the extension, renewal, entry into or payment pursuant to any services agreement with AES that provides for the payment by the Company to AES of fees on terms that are not more advantageous to AES than as provided under the Services Agreement as in effect on the Issue Date; and
(ix) any agreement to do any of the foregoing. Any transaction is otherwise which has been determined, in the written opinion of an independent internationally recognized investment banking firm, to be fair, from a financial point of view, to the Company or the applicable Project Company, shall be deemed to be in compliance with this Indenture and is on fair and reasonable terms; (c) any transaction otherwise permitted by the terms of the section of 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 Restricted Subsidiary; (e) licensing or sublicensing of use of any intellectual property by the Company or any Restricted Subsidiary to any Restricted 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 Restricted Subsidiary of the Company for the purpose of providing services or employees to such 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 hereofsection.
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 (a1) such transaction or series of related transactions is on terms in all material respects 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, (b2) with respect to any transaction or series of related transactions involving aggregate value in excess of $3.0 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, and (c) with respect to any transaction or series of related transactions involving aggregate value in excess of $7.0 million, either (A) such transaction or series of related transactions has been approved by either (a) 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, or (Bb) the Audit Committee of the Board of Directors of the Company by a majority of members thereof who do not have any material direct or indirect financial interest in or with respect to such transaction or series of related transactions and (3) with respect to any transaction or series of related transactions involving aggregate value in excess of $10.0 million, 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 transaction 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: :
(ai) transactions and agreements in existence on the Issue Date and any renewals, amendments, modifications and changes to such agreements which are not adverse in any material respect to the Company;
(ii) transactions between or among the Company or any of the Restricted Subsidiaries;
(iii) Restricted Payments or other transactions expressly permitted by this Indenture;
(iv) compensation (including bonuses and employee equity compensation) paid to and other benefits (including retirement, health and other benefit plans, profit sharing plans, awards and transactions under stock incentive plans or management equity subscription agreements), severance agreements, and indemnification or insurance arrangements with any officerprovided on behalf of officers, director directors, managers, employees or employee consultants of the CompanyCompany or any Restricted Subsidiary, including under any stock option or stock incentive plans, in each case in the ordinary course of business; ;
(b) any transaction solely between or among the Company and/or any Restricted Subsidiaries, if such transaction is otherwise in compliance with this Indenture and is on fair and reasonable terms; (c) any transaction otherwise permitted by the terms of the section of this Indenture described in Section 1009; (dv) the execution and delivery of existence of, or payments made under any tax sharing agreement between or among any of the Company and any Restricted Subsidiary; (e) licensing or sublicensing of use of any intellectual property performance by the Company or any Restricted Subsidiary of its obligations under the terms of, any stockholders’ agreement (including any registration rights agreement or purchase agreement but excluding any management agreement related thereto) to which it is a party as of the Issue Date and any similar agreements which it may enter into thereafter;
(vi) transactions with Unrestricted Subsidiaries, customers, clients, suppliers, joint venture partners, lessors or lessees of property (real or personal) 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 Company and its Restricted Subsidiaries, on terms substantially similar to those contained in similar contracts entered into by the Company or any Restricted Subsidiary with unaffiliated third parties, or if neither the Company nor any Restricted Subsidiary has entered into a similar contract with a third party, on terms that are in the reasonable determination of the senior management of the Company, at least as favorable as might reasonably have been obtained at such time from an unaffiliated third party;
(vii) the issuance of Qualified Capital Stock (including all warrants, options or other rights to acquire Qualified Capital Stock) of the Company;
(viii) loans and advances to, and reimbursements of, officers, directors, managers and employees for business related travel expenses, moving expenses and other similar expenses, in each case incurred in the ordinary course of business or consistent with past practices and in compliance with all applicable laws; and
(ix) the existence of, or the performance by the Company or any Restricted Subsidiary of its obligations under the Company; provided that terms of, any employment agreement to which it is a party as of the licensor shall continue to have access Issue Date and any renewals, amendments, modifications and changes to such intellectual property to the extent necessary for the conduct of its respective business; (f) arrangements between the Company and agreements which are not adverse in any Restricted Subsidiary of the Company for the purpose of providing services or employees to such Restricted Subsidiary; (g) any transaction entered into for the purpose of granting or altering registration rights with material respect to the Capital Stock Company, and any similar agreements which it may enter into thereafter, in each case in the ordinary course of the Company; and (h) any transaction or series of related transactions entered into prior to the date hereofbusiness.
Appears in 1 contract
Sources: Indenture (Blyth Inc)
Limitation on Transactions with Affiliates. (a) The Company will shall not, and will shall not permit any of its Restricted Subsidiaries Subsidiary to, directly or indirectlyand each Restricted Entity shall not, enter into or permit to exist any transaction (including the purchase, sale, lease or series exchange of any property, employee compensation arrangements or the rendering of any service) with, or for the benefit of, any Affiliate of the Company (an “Affiliate Transaction”) involving (together with any related Affiliate Transactions) aggregate consideration in excess of $10 million, unless:
(1) the terms of the Affiliate Transaction are not materially less favorable taken as a whole to the Company or such Restricted Entity than those that could be obtained at the time of the Affiliate Transaction in arm’s-length dealings with a Person who is not an Affiliate; and
(2) if such Affiliate Transaction (together with any related Affiliate Transactions) involves an amount in excess of $15.0 million, the terms of the Affiliate Transaction are set forth in writing and a majority of the non-employee directors of the General Partner disinterested with respect to such Affiliate Transaction have determined in good faith that the criteria set forth in clause (1) are satisfied and have approved the relevant Affiliate Transaction.
(b) The provisions of the preceding paragraph (a) shall not prohibit:
(1) Restricted Payments, in each case permitted to be made pursuant to Section 4.08, and Permitted Investments;
(2) 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 stock ownership plans approved by the Board of Directors of the Company;
(3) loans or advances to employees in the ordinary course of business in accordance with the past practices of the Company or the Restricted Entities, but in any event not to exceed $2.5 million in the aggregate outstanding at any one time;
(4) the payment of reasonable and customary fees to, and indemnity provided on behalf of, officers, directors, employees or consultants of the Company or the Restricted Entities;
(5) transactions between or among the Company and the Restricted Entities;
(6) the issuance or sale of any Capital Stock (other than Disqualified Stock) of the Company and the granting and the performance of registration rights;
(7) any agreement as 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 amendment, modification, supplement, extension or renewal is not materially less favorable, taken as a whole, to the Company and the Restricted Entities) and the transactions evidenced or contemplated thereby or as these agreements may be extended or renewed in accordance with this clause (7);
(8) 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 Company and the Restricted Entities, in the reasonable determination of the Board of Directors of the General Partner or the senior management of the Company, or are on terms at least as favorable as might reasonably have been obtained at such time from an unaffiliated party;
(9) the entering into agreements with equity holders of the Company or the General Partner in connection with a Parent Roll-up Transaction relating to such equity, including, without limitation, the sale, purchase, exchange entering into and performance of shareholder agreements and registration rights agreements and amendments to existing similar agreements; and
(10) Affiliate Transactions with a person solely in its capacity as a holder of debt 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 equity securities where such Person is treated no more favorably 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 than any other security holders who 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 $3.0 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 $7.0 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 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: (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 Restricted Subsidiaries, if such transaction is otherwise in compliance with this Indenture and is on fair and reasonable terms; (c) any transaction otherwise permitted by the terms of the section of 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 Restricted Subsidiary; (e) licensing or sublicensing of use of any intellectual property by the Company or any Restricted Subsidiary to any Restricted 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 Restricted Subsidiary of the Company for the purpose of providing services or employees to such 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 hereofAffiliates.
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 Restricted Subsidiaries 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 respective 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 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 at such time with an unrelated third partyPerson, and (b) with respect to any a transaction or series of related transactions involving aggregate value in excess of payments or Fair Market Value equal to or greater than $3.0 2.5 million, the Company delivers shall have delivered an Officers' Certificate to the Trustee certifying that such transaction or series of related transactions complies with the preceding clause (a) above, and (c) with respect to any transaction or series of related transactions involving aggregate value in excess of $7.0 million, either (A) that such transaction or series of related transactions has been approved by a majority of the Disinterested Board of Directors of the CompanyCompany (including a majority of Disinterested Directors); provided that, or in the event there is only one Disinterested Directorlieu of complying with clause (b), by such Disinterested Director, or (B) the Company delivers to the Trustee may obtain a written opinion of from an investment banking firm of national standing or other recognized independent expert with experience appraising Independent Financial Advisor qualified to pass upon the required matters stating that 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 are fair to the Company or such Restricted Subsidiary Subsidiary, as the case may be, from a financial point of view; provided, however, provided that this provision shall covenant will not apply to: restrict the Company or its Subsidiaries from (i) making Restricted Payments (other than Investments) permitted under Section 4.12, (ii) (a) compensation 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 employee benefit arrangements with any officer, director or employee stock ownership plans approved by the Board of Directors of the Company, including under (b) loans or advances to employees of the Company or any stock option or stock incentive plansof its Subsidiaries in accordance with Section 4.22, (c) transactions among the Company and Wholly-Owned Subsidiaries of the Company and transactions among Wholly-Owned Subsidiaries of the Company otherwise permitted by this Indenture, (d) the payment of fees and indemnities to directors, officers and employees of the Company and the Subsidiaries of the Company in the ordinary course of business; (b) any transaction solely between or among the Company and/or any Restricted Subsidiaries, if such transaction is otherwise in compliance with this Indenture and is on fair and reasonable terms; (c) any transaction otherwise permitted by the terms of the section of 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 Restricted Subsidiary; (e) licensing transactions pursuant to agreements in existence on the Issue Date or sublicensing any amendment thereto (so long as any such amendment is not disadvantageous to the holders of use of the Securities in any intellectual property material respect), (f) any employment agreements entered into by the Company or any Restricted Subsidiary to any Restricted 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 Restricted Subsidiary Subsidiaries of the Company for in the purpose ordinary course of providing services or employees to such Restricted Subsidiary; business, (g) any transaction entered into sale of Capital Stock (other than Disqualified Capital Stock) of the Company, (h) the payment of annual management, consulting, monitoring and advisory fees and related expenses to Blackstone, Veritas and their Affiliates not to exceed $1.0 million in the aggregate; (i) payments by the Company or any of its Subsidiaries to Blackstone, Veritas and their Affiliates made for the purpose any financial advisory, underwriting or placement services or in respect of granting or altering registration rights other investment banking activities consistent with past customary practice of Blackstone and Veritas, respectively, with respect to the Capital Stock their portfolio companies, including, without limitation, in connection with acquisitions or divestitures, which payments are approved by a majority of the CompanyBoard of Directors of the Company in good faith; and (hj) any transaction transactions with customers, clients, suppliers, or series purchasers or sellers of related transactions entered into prior 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 hereof.Company or its Subsidiaries, in the reasonable determination of the Board of Directors of the Company or the senior management thereof, or are on terms not materially less favorable than might reasonably have been obtained at such time from an unaffiliated party; and (k) [Bar Tech joint marketing plan.](2)
Appears in 1 contract
Limitation on Transactions with Affiliates. The Company will shall not, and will shall not permit any of its Restricted Subsidiaries 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 transaction in an arm's-length dealings transaction 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 $3.0 1.0 million, a resolution of the Board of Directors of the Company delivers set forth in an Officers' Certificate to the Trustee 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 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 $7.0 5.0 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 a written opinion of an investment banking firm of national standing or other recognized independent expert with experience appraising as to 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 fairness to the Company or such Restricted Subsidiary of such transaction or series of transactions from a financial point of view; providedview issued by an accounting, however, that this provision shall not apply to: (a) compensation and employee benefit arrangements with any officer, director appraisal or employee of the Company, including under any stock option or stock incentive plansinvestment banking firm, in the ordinary course each case of business; national standing. The foregoing covenant will not restrict:
(bA) any transaction solely between or transactions among the Company and/or any its Restricted Subsidiaries, if such transaction is otherwise in compliance with this Indenture and is on fair and reasonable terms; ;
(c) any transaction otherwise permitted by the terms of the section of this Indenture described in Section 1009; (dB) the execution Company from paying reasonable and delivery customary regular compensation and fees to directors of or payments made under any tax sharing agreement between or among any of the Company and any Restricted Subsidiary; (e) licensing or sublicensing of use of any intellectual property by the Company or any Restricted Subsidiary to who are not employees of the Company or any Restricted Subsidiary Subsidiary; 91
(C) maintenance in the ordinary course of business of benefit programs or arrangements for employees, officers or directors of the Company or any Subsidiary, including vacation plans, health and life insurance plans, deferred compensation plans and retirement or savings plans and similar plans;
(D) payment of management, consulting and advisory fees and related expenses to the Permitted Holders or their Affiliates not subject to employment agreements not to exceed $300,000 in any fiscal year of the Company;
(E) transactions permitted by the provisions of Section 1011; provided that the licensor shall continue to have access to such intellectual property to the extent necessary for the conduct or
(F) payment of its respective business; (f) arrangements any amounts under a supply agreement effective as of February 4, 1998, between the Company and any Restricted Subsidiary Springs & Wire Design LLC, and the employment agreement effective as of February 4, 1998 between the Company for the purpose of providing services or employees and Arie▇ ▇▇▇▇▇▇, ▇▇d any amendments to such Restricted Subsidiary; (g) agreements, provided that such agreements as so amended are no less favorable in any transaction entered into for the purpose of granting or altering registration rights with material respect to the Capital Stock of Company than the Company; and (h) any transaction or series of related transactions entered into prior to agreements in effect on the date hereofClosing Date.
Appears in 1 contract
Sources: Indenture (Afa Products Inc)
Limitation on Transactions with Affiliates. (a) The Company Parent will not, and will not permit any of its Restricted Subsidiaries Subsidiary to, directly or indirectly, enter into or conduct 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 Parent, including the Incurrence of Indebtedness by the Parent or any Restricted Subsidiary owing to any such Affiliate which is permitted to be Incurred pursuant to Section 4.03 (other than a “Borrowing from an Affiliate”), and including the Company purchase, sale, lease or exchange of any property or the rendering of any service (together with a Wholly Owned SubsidiaryBorrowing from an Affiliate, 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 terms:
(i) that are no less favorable to the Company Parent 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'sarm’s-length dealings with a Person who is not such an unrelated third partyAffiliate, as determined by a responsible financial or accounting Officer of the Parent,
(bii) with respect to any transaction or series of related transactions involving that, in the event such Affiliate Transaction, other than a Borrowing from an Affiliate, involves an aggregate value amount in excess of $3.0 25 million, or in the Company delivers event a Borrowing from 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 Affiliate involves an aggregate value amount in excess of $7.0 100 million,
(1) are set forth in writing, either and
(A2) such transaction or series of related transactions has have been approved by a majority of the Disinterested Directors members of the CompanyBoard of Directors having no personal stake in such Affiliate Transaction, or and
(iii) that, in the event there is only one Disinterested Directorsuch Affiliate Transaction other than a Borrowing from an Affiliate involves an amount in excess of $100 million, have been determined by such Disinterested Director, a nationally recognized appraisal 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 be fair, from a financial point standpoint, to the Parent and its Restricted Subsidiaries.
(b) The provisions of view; providedSection 4.07(a) will not prohibit:
(i) any Restricted Payment permitted to be paid pursuant to Section 4.04;
(ii) any issuance of securities, howeveror other payments, that this provision shall not apply 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;
(aiii) compensation the grant of stock options or similar rights to employees and employee benefit arrangements with any officer, director or employee directors of the Company, including under any stock option Parent pursuant to plans approved by the Board of Directors;
(iv) loans or stock incentive plans, advances to employees in the ordinary course of business; business in accordance with past practices of the Parent, but in any event not to exceed $5.0 million in the aggregate outstanding at any one time;
(bv) Stock Purchase Loans, but in any event not to exceed $3.0 million in the aggregate outstanding at any one time;
(vi) the payment of reasonable fees to directors of the Parent and its Subsidiaries who are not employees of the Parent or its Subsidiaries;
(vii) any transaction solely between the Parent and a Wholly Owned Restricted Subsidiary or among the Company and/or any between Wholly Owned Restricted Subsidiaries, if such transaction is otherwise in compliance with this Indenture and is on fair and reasonable terms;
(viii) Permitted Property Swaps; or
(cix) any transaction otherwise permitted by the terms lease of the section of this Indenture described in Section 1009; (d) the execution and delivery of locomotives or payments made under any tax sharing agreement between or among any of the Company rolling stock, and any Restricted Subsidiary; (e) licensing transaction relating to the provision of transportation or sublicensing of use of any intellectual property by transportation-related services, between the Company or any Restricted Subsidiary to Subsidiaries on the one hand and KCSM or any Restricted Subsidiary of its Affiliates on the other hand, if such lease or transaction meets the requirements of Section 4.07(a)(i), as determined in good faith by a responsible financial or accounting officer 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 Restricted Subsidiary of the Company for the purpose of providing services or employees to such 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 hereofParent.
Appears in 1 contract
Sources: Indenture (Kansas City Southern)
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 the Company (other than or, in the Company or case of a Wholly Owned Restricted Subsidiary, any Affiliate of such 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 that, taken as a whole, are no less favorable in any material respect 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) with respect to any transaction or series of related transactions involving aggregate value payments in excess of $3.0 25.0 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 $7.0 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).
(b) Notwithstanding the foregoing, this Section 4.08 will not apply to (i) employment agreements or (B) compensation or employee benefit arrangements or indemnification agreements or similar arrangements with any officer, director or employee of the Company (including benefits thereunder), (ii) any transaction entered into by or among the Company and/or one or more Restricted Subsidiaries, (iii) transactions pursuant to agreements existing on the Issue Date and any amendment to or extensions or replacements thereof on terms not materially less favorable to the Company or applicable Restricted Subsidiary, (iv) Restricted Payments, Permitted Investments and Permitted Tax Restructurings, (v) issuances of equity of the Company, (vi) transactions in which the Company or any Restricted Subsidiary, as the case may be, 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 or such Restricted Subsidiary from a financial point of view; providedview or meets the requirements of clause (i) of Section 4.08(a), however(vii) payments by the Company (and any Parent Entity) and its Restricted Subsidiaries pursuant to any tax sharing agreements among the Company (and any such Parent Entity) and its Restricted Subsidiaries to the extent constituting Permitted Tax Distributions, that this provision shall (viii) transactions entered into by a Restricted Subsidiary with an Affiliate prior to the day such Restricted Subsidiary is designated as a Restricted Subsidiary (so long as such transaction was not apply to: entered into in contemplation of such redesignation), (aix) compensation the Transactions and employee benefit arrangements with any officerthe payment of all fees and expenses related to the Transactions, director or employee of the Company, including under any stock option or stock incentive plans, (x) intellectual property licenses entered into in the ordinary course of business; business or consistent with industry or past practice, (bxi) transactions with customers, clients, suppliers, joint venture partners or purchasers or sellers of goods and services, in each case in the ordinary course of business or industry or past practice and otherwise not prohibited by this Indenture, (xii) non-interest bearing intercompany loans or other advances to employees, officers and directors in the ordinary course of business and consistent with past practice, (xiii) payments to or from, and transactions with, any transaction solely between or among joint venture in the Company and/or ordinary course of business (including, without limitation, any Restricted Subsidiariescash management activities related thereto), if such transaction is otherwise in compliance with this Indenture and is on fair and reasonable terms; (cxiv) any transaction otherwise permitted by the terms transactions effected as part of the section of 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 Restricted Subsidiary; (e) licensing or sublicensing of use of any intellectual property by the Company or any Restricted Subsidiary to any Restricted 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 Restricted Subsidiary of the Company for the purpose of providing services or employees to such 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; a Permitted Receivables Financing and (hxv) any transaction or series of related transactions entered into prior to the date hereofinvolving aggregate payments of $10.0 million or less.
Appears in 1 contract
Sources: Indenture (Plantronics Inc /Ca/)