FROM
ANY PUBLIC OFFERING OF EQUITY INTERESTS OF THE COMPANY OR ANY DIRECT OR INDIRECT
PARENT OF THE COMPANY;
(I)
THE COMPANY MAY MAKE DISTRIBUTIONS TO HOLDINGS OR ANY PARENT ENTITY
TO FINANCE ANY INVESTMENT PERMITTED TO BE MADE PURSUANT TO SECTION 6.04;
PROVIDED, THAT (A) SUCH DISTRIBUTION SHALL BE MADE SUBSTANTIALLY CONCURRENTLY
WITH THE CLOSING OF SUCH INVESTMENT AND (B) SUCH PARENT SHALL, IMMEDIATELY
FOLLOWING THE CLOSING THEREOF, CAUSE (1) ALL PROPERTY ACQUIRED (WHETHER ASSETS
OR EQUITY INTERESTS) TO BE CONTRIBUTED TO THE COMPANY OR A SUBSIDIARY OR (2) THE
MERGER (TO THE EXTENT PERMITTED IN SECTION 6.05) OF THE PERSON FORMED OR
ACQUIRED INTO THE COMPANY OR A SUBSIDIARY IN ORDER TO CONSUMMATE SUCH PERMITTED
BUSINESS ACQUISITION OR INVESTMENT; AND
(J)
THE COMPANY MAY PAY DIVIDENDS AFTER THE CLOSING DATE TO PERMIT
HOLDINGS TO MAKE PAYMENTS REQUIRED UNDER THE ACQUISITION AGREEMENT (INCLUDING
SECTIONS 2.9 AND 5.4 THEREOF).
SECTION 6.07. TRANSACTIONS WITH AFFILIATES
.
(A)
SELL OR TRANSFER ANY PROPERTY OR ASSETS TO, OR PURCHASE OR ACQUIRE ANY
PROPERTY OR ASSETS FROM, OR OTHERWISE ENGAGE IN ANY OTHER TRANSACTION WITH, ANY
OF ITS AFFILIATES OR ANY KNOWN DIRECT OR INDIRECT HOLDER OF 10% OR MORE OF ANY
CLASS OF CAPITAL STOCK OF HOLDINGS OR THE COMPANY IN A TRANSACTION INVOLVING
AGGREGATE CONSIDERATION IN EXCESS OF $5 MILLION, UNLESS SUCH TRANSACTION IS (I)
OTHERWISE PERMITTED (OR REQUIRED) UNDER THIS AGREEMENT OR (II) UPON TERMS NO
LESS FAVORABLE TO THE COMPANY OR SUCH SUBSIDIARY, AS APPLICABLE, THAN WOULD BE
OBTAINED IN A COMPARABLE ARM'S‐LENGTH TRANSACTION WITH A PERSON THAT IS NOT AN
AFFILIATE.
(B)
THE FOREGOING PARAGRAPH (A) SHALL NOT PROHIBIT, TO THE EXTENT
OTHERWISE PERMITTED UNDER THIS AGREEMENT,
(I)
ANY ISSUANCE OF SECURITIES, OR OTHER PAYMENTS, AWARDS OR GRANTS IN
CASH, SECURITIES OR OTHERWISE PURSUANT TO, OR THE FUNDING OF, EMPLOYMENT
ARRANGEMENTS, EQUITY
136
PURCHASE AGREEMENTS, STOCK OPTIONS AND STOCK OWNERSHIP PLANS APPROVED BY THE
BOARD OF DIRECTORS OF HOLDINGS OR OF THE COMPANY,
(II)
LOANS OR ADVANCES TO EMPLOYEES OR CONSULTANTS OF HOLDINGS (OR ANY
PARENT ENTITY), THE COMPANY OR ANY OF THE SUBSIDIARIES IN ACCORDANCE WITH
SECTION 6.04(E),
(III)
TRANSACTIONS AMONG THE COMPANY OR ANY SUBSIDIARY OR ANY ENTITY THAT
BECOMES A SUBSIDIARY AS A RESULT OF SUCH TRANSACTION (INCLUDING VIA MERGER OR
CONSOLIDATION IN WHICH A SUBSIDIARY IS THE SURVIVING ENTITY) NOT PROHIBITED BY
THIS AGREEMENT,
(IV)
THE PAYMENT OF FEES, REASONABLE OUT-OF-POCKET COSTS AND INDEMNITIES
TO DIRECTORS, OFFICERS, CONSULTANTS AND EMPLOYEES OF HOLDINGS, ANY PARENT
ENTITY, THE COMPANY AND THE SUBSIDIARIES IN THE ORDINARY COURSE OF BUSINESS
(LIMITED, IN THE CASE OF ANY PARENT ENTITY, TO THE PORTION OF SUCH FEES AND
EXPENSES THAT ARE ALLOCABLE TO THE COMPANY AND ITS SUBSIDIARIES (WHICH SHALL BE
100% FOR SO LONG AS HOLDINGS OR SUCH PARENT ENTITY, AS THE CASE MAY BE, OWNS NO
ASSETS OTHER THAN THE EQUITY INTERESTS IN THE COMPANY, HOLDINGS OR ANOTHER
PARENT ENTITY AND ASSETS INCIDENTAL TO THE OWNERSHIP OF THE COMPANY AND ITS
SUBSIDIARIES)),
(V)
SUBJECT TO THE LIMITATIONS SET FORTH