Certain Repurchases. (a) Upon written notice to the ------------------- Company by Parent (the "Repurchase Notice") at any time prior to the Topping Fee ----------------- Termination Date (the "Repurchase Period"), the Company and its successors in ----------------- interest shall repurchase from Parent all or any portion of (i) the Topping Fee Option, as specified by Parent, at the Option Repurchase Price set forth in Section 5.3(b)(i), or (ii) the shares of the Company's Common Stock purchased by Parent pursuant to the Topping Fee Option, as specified by Parent, at the Share Repurchase Price set forth in Section 5.3(b)(iii). (b) For purposes of this Section 5.3, the following definitions shall apply: (i) "Option Repurchase Price" shall mean (A) the difference between the ----------------------- Option Repurchase Market/Offer Price (as defined below) for shares of the Company's Common Stock as of the date of the applicable Repurchase Notice and the Exercise Price, multiplied by (B) the number of shares of the Company's Common Stock purchasable pursuant to the Topping Fee Option or the portion thereof covered by the applicable Repurchase Notice, but only if the Option Repurchase Market/Offer Price is greater than the Exercise Price; (ii) "Option ------ Repurchase Market/Offer Price" shall mean, as of any date, the higher of (A) the ----------------------------- highest price per share offered as of such date pursuant to any tender or exchange offer or other offer with respect to a business combination offer involving the Company or any of its material subsidiaries as the target party which was made prior to such date and not terminated or withdrawn as of such date, and (B) the Fair Market Value (as defined below) of the Company's Common Stock as of such date; (iii) "Share Repurchase Price" shall mean the product of ---------------------- (A) the sum of (1) the Exercise Price paid by Parent per share of the Company's Common Stock acquired pursuant to the Topping Fee Option, and (2) if the Share Repurchase Market/Offer Price (as defined below) is greater than the Exercise Price, the difference between the Share Repurchase Market/Offer Price and the Exercise Price, and (B) the number of shares of the Company's Common Stock to be repurchased pursuant to this Section 5.3; (iv) "
Appears in 1 contract
Certain Repurchases. (a) Upon If, at any time after April 5, 2002, one or more members of the Investor Group (collectively, the "SELLING INVESTORS") sell shares of Series A Preferred Stock and/or Common Shares, in a transaction or series of related transactions (such sale, an "INVESTOR SALE"), to any Person other than a member of the Investor Group, the Corporation shall, if the Selling Investors so elect, repurchase (a "CORPORATION REPURCHASE") from the Selling Investors, for cash, shares of Series B Preferred Stock representing a number of Conversion Shares equal to the Sale Number less the number of Make-Whole Conversion Shares with respect to such Investor Sale. The price paid by the Corporation in any Corporation Repurchase shall equal the Investor Sale Price per Conversion Share represented by the securities purchased in such Corporation Repurchase. Subject to subsection (b) of this Section G, in the event that the Selling Investors include shares of Series B Preferred Stock in an Investor Sale, the Corporation shall pay the Selling Investors, with respect to the Make-Whole Conversion Shares, an amount per Make-Whole Conversion Share equal to the Investor Sale Price less the amount per Make-Whole Conversion Share paid in such Investor Sale (such payment, the "MAKE-WHOLE PAYMENT"). Notwithstanding the foregoing, the Corporation shall have no obligation to effect a Corporation Repurchase or make a Make-Whole Payment unless the Selling Investors afford the Corporation a reasonable opportunity to include in the Investor Sale up to that number of shares of Common Stock that would be sufficient to permit the Corporation to satisfy its obligations pursuant to this Section G, and the Corporation shall have no obligation to effect a Corporation Repurchase or make a Make-Whole Payment with respect to any Investor Sale that is consummated after the Approval Date. Each Corporation Repurchase and Make-Whole Payment shall be completed by the Corporation within 15 days of the consummation of the related Investor Sale.
(b) Prior to any sale by the Selling Investors of any shares of Series B Preferred Stock in an Investor Sale, the Selling Investors shall give written notice to the ------------------- Company by Parent Corporation of the Selling Investors' desire to sell such shares, which notice shall identify the number of such shares the Selling Investors desire to sell (the such notice, a "Repurchase NoticeSERIES B SALE NOTICE") ). The Series B Sale Notice shall be given at any time least 10 Business Days prior to the Topping Fee ----------------- Termination Date (consummation of the "Repurchase Period")related Investor Sale. The Selling Investors shall not include such shares in such Investor Sale if, within 5 Business Days of the delivery of the Series B Sale Notice, the Company Corporation delivers a written notice to the Selling Investors to the effect that it will effect a Corporation Repurchase with respect to such shares following the completion of such Investor Sale.
(c) Prior to the Approval Date, the Corporation shall not effect any direct or indirect redemption or repurchase of Common Stock unless it has complied with the procedures set forth in this subsection (c). In the event the Corporation intends to effect any direct or indirect redemption or repurchase of Common Stock, the Corporation shall first offer (a "REPURCHASE OFFER") to repurchase shares of Series B Preferred Stock and its successors in ----------------- interest Junior Preferred Stock at the Repurchase Price (as defined below) per Conversion Share represented by the shares of Series B Preferred Stock and Junior Preferred Stock to be repurchased. The Corporation shall repurchase from Parent all or any portion give written notice (a "PROPOSED REPURCHASE NOTICE") of such offer to each holder of Series B Preferred Stock and each holder of Junior Preferred Stock which notice shall specify (i) the Topping Fee Optionaggregate number (the "REPURCHASE NUMBER") of Conversion Shares represented by shares of Series B Preferred Stock and Junior Preferred Stock that the Corporation is willing to repurchase, and (ii) the proposed repurchase price for each such Conversion Share (the "REPURCHASE PRICE"). The date on which such Proposed Repurchase Notice is given is referred to herein as the "NOTICE DATE." To accept a Repurchase Offer a holder must, within 20 days of the Notice Date, notify the Corporation in writing of its acceptance of the Repurchase Offer and the number of shares of Series B Preferred Stock and number of shares of Junior Preferred Stock it wishes to have repurchased by the Corporation. If a holder does not provide such notice to the Corporation within such 20-day period, then such holder shall be deemed to have rejected the Repurchase Offer. Within 5 days following the end of such 20-day period, the Corporation shall repurchase the securities specified by Parenteach accepting holder at the Repurchase Price per Conversion Share represented by such securities. The date on which such repurchases are effected is referred to herein as the "REPURCHASE DATE." If the aggregate number of Conversion Shares represented by the shares of Series B Preferred Stock and Junior Preferred Stock with respect to which holders have accepted the Repurchase Offer exceeds the Repurchase Number, the Corporation shall repurchase such securities on a pro rata basis based on the number of Conversion Shares with respect to which each such holder accepted the Repurchase Offer. During the period commencing on the Repurchase Date and ending on the 120th day after the Notice Date, the Corporation may repurchase and redeem, at a price not in excess of the Option Repurchase Price per share, up to an aggregate number of shares of its Common Stock equal to the Repurchase Number less the number of Conversion Shares represented by the shares of Series B Preferred Stock and Junior Preferred Stock repurchased pursuant to the Repurchase Offer. After such 120th day, in order to directly or indirectly repurchase or redeem shares of Common Stock, the Corporation must again comply with the procedures set forth in Section 5.3(b)(ithis subsection (c). Notwithstanding the foregoing, this paragraph shall not prohibit (i) purchases of Equity Securities of the Corporation or any of its Subsidiaries from executives and other management-level employees of the Corporation or any of its Subsidiaries in connection with customary employment and severance arrangements, or (ii) the acquisition, repurchase, exchange, conversion, redemption or other retirement for value by the Corporation of any Junior Dividend Securities by the Corporation in accordance with obligations in existence at the time of original issuance of the Series A Preferred Stock.
(d) Until the Series B Shareholder Approval is obtained, the Corporation shall not (A) utilize amounts available under Section 6.06(a)(ii) of the Credit Agreement (or any comparable provision of any Credit Agreement) for any purpose except to effect repurchases or make payments in respect of the Series B Preferred Stock as required pursuant to this Section G or to make payments with respect to the Series A Preferred Stock, or (B) amend the Credit Agreement in any manner so as to reduce the amounts available to effect repurchases or make payments in respect of the Series B Preferred Stock as required pursuant to this Section G under Section 6.06(a)(ii) of the Credit Agreement (or any comparable provision of any Credit Agreement). Notwithstanding the foregoing, this paragraph shall not prohibit (i) the acquisition, repurchase, exchange, conversion, redemption or other retirement for value of shares of Series B Preferred Stock or any Parity Dividend Security by the Company's Common Stock purchased Corporation in accordance with the terms of such securities, (ii) purchases of Equity Securities of the Corporation or any of its Subsidiaries from executives and other management-level employees of the Corporation or any of its Subsidiaries in connection with customary employment and severance arrangements, or (iii) the acquisition, repurchase, exchange, conversion, redemption or other retirement for value by Parent the Corporation of any Junior Dividend Securities by the Corporation in accordance with obligations in existence at the time of original issuance of the Series A Preferred Stock.
(e) If a Make-Whole Payment would result in an event of default under the Credit Agreement or the Indenture, the Corporation shall not be obligated to make such Make-Whole Payment until such time as the Make-Whole Payment would not result in an event of default under the Credit Agreement or the Indenture, as the case may be; PROVIDED that if the Make-Whole Payment would not result in such an event of default if made from the proceeds of the sale of Equity Securities of the Corporation, the Corporation shall use commercially reasonable efforts to effect a sale of Equity Securities to permit it to make the Make-Whole Payment and avoid such an event of default. In the event (i) the Corporation defaults with respect to its obligation to make a Make-Whole Payment or (ii) a Make-Whole Payment is delayed pursuant to the Topping Fee Optionpreceding sentence, as specified by Parent, a late-payment charge shall accrue with respect to the Make-Whole Payment at a per annum rate equal to the Share Repurchase Price set forth dividend rate then in effect pursuant to Section 5.3(b)(iii).
(b) For purposes A of this Section 5.3, the following definitions shall apply: (i) "Option Repurchase Price" shall mean Article III hereof from (A) the difference between time of such default in the ----------------------- Option Repurchase Market/Offer Price case of clause (as defined belowi) for shares of the Company's Common Stock as of the date of the applicable Repurchase Notice and the Exercise Price, multiplied by above or (B) from the number of shares time such Make-Whole Payment would have been due except for the operation of the Company's Common Stock purchasable pursuant to preceding sentence in the Topping Fee Option or the portion thereof covered by the applicable Repurchase Notice, but only if the Option Repurchase Market/Offer Price is greater than the Exercise Price; case of clause (ii) "Option ------ Repurchase Market/Offer Price" shall mean, as of any date, the higher of (A) the ----------------------------- highest price per share offered as of such date pursuant to any tender or exchange offer or other offer with respect to a business combination offer involving the Company or any of its material subsidiaries as the target party which was made prior to such date and not terminated or withdrawn as of such dateabove, and (B) the Fair Market Value (as defined below) of the Company's Common Stock as of shall accrue until such date; (iii) "Share Repurchase Price" shall mean the product of ---------------------- (A) the sum of (1) the Exercise Price paid by Parent per share of the Company's Common Stock acquired pursuant to the Topping Fee Option, amount and (2) if the Share Repurchase Market/Offer Price (as defined below) such charge is greater than the Exercise Price, the difference between the Share Repurchase Market/Offer Price and the Exercise Price, and (B) the number of shares of the Company's Common Stock to be repurchased pursuant to this Section 5.3; (iv) "paid.
Appears in 1 contract
Samples: Investment Agreement (Magellan Health Services Inc)
Certain Repurchases. (a) Upon If, at any time after April 5, 2002, one or more members of the Investor Group (collectively, the "Selling Investors") sell shares of Series A Preferred Stock and/or Common Shares, in a transaction or series of related transactions (such sale, an "Investor Sale"), to any Person other than a member of the Investor Group, the Corporation shall, if the Selling Investors so elect, repurchase (a "Corporation Repurchase") from the Selling Investors, for cash, shares of Series B Preferred Stock representing a number of Conversion Shares equal to the Sale Number less the number of Make-Whole Conversion Shares with respect to such Investor Sale. The price paid by the Corporation in any Corporation Repurchase shall equal the Investor Sale Price per Conversion Share represented by the securities purchased in such Corporation Repurchase. Subject to subsection (b) of this Section G, in the event that the Selling Investors include shares of Series B Preferred Stock in an Investor Sale, the Corporation shall pay the Selling Investors, with respect to the Make-Whole Conversion Shares, an amount per Make-Whole Conversion Share equal to the Investor Sale Price less the amount per Make-Whole Conversion Share paid in such Investor Sale (such payment, the "Make-Whole Payment"). Notwithstanding the foregoing, the Corporation shall have no obligation to effect a Corporation Repurchase or make a Make-Whole Payment unless the Selling Investors afford the Corporation a reasonable opportunity to include in the Investor Sale up to that number of shares of Common Stock that would be sufficient to permit the Corporation to satisfy its obligations pursuant to this Section G, and the Corporation shall have no obligation to effect a Corporation Repurchase or make a Make-Whole Payment with respect to any Investor Sale that is consummated after the Approval Date. Each Corporation Repurchase and Make-Whole Payment shall be completed by the Corporation within 15 days of the consummation of the related Investor Sale.
(b) Prior to any sale by the Selling Investors of any shares of Series B Preferred Stock in an Investor Sale, the Selling Investors shall give written notice to the ------------------- Company Corporation of the Selling Investors' desire to sell such shares, which notice shall identify the number of such shares the Selling Investors desire to sell (such notice, a "Series B Sale Notice"). The Series B Sale Notice shall be given at least 10 Business Days prior to the consummation of the related Investor Sale. The Selling Investors shall not include such shares in such Investor Sale if, within 5 Business Days of the delivery of the Series B Sale Notice, the Corporation delivers a written notice to the Selling Investors to the effect that it will effect a Corporation Repurchase with respect to such shares following the completion of such Investor Sale.
(c) Prior to the Approval Date, the Corporation shall not effect any direct or indirect redemption or repurchase of Common Stock unless it has complied with the procedures set forth in this subsection (c). In the event the Corporation intends to effect any direct or indirect redemption or repurchase of Common Stock, the Corporation shall first offer (a "Repurchase Offer") to repurchase shares of Series B Preferred Stock and Junior Preferred Stock at the Repurchase Price (as defined below) per Conversion Share represented by Parent the shares of Series B Preferred Stock and Junior Preferred Stock to be repurchased. The Corporation shall give written notice (a "Proposed Repurchase Notice") of such offer to each holder of Series B Preferred Stock and each holder of Junior Preferred Stock which notice shall specify (i) the aggregate number (the "Repurchase NoticeNumber") at any time prior of Conversion Shares represented by shares of Series B Preferred Stock and Junior Preferred Stock that the Corporation is willing to repurchase, and (ii) the Topping Fee ----------------- Termination Date proposed repurchase price for each such Conversion Share (the "Repurchase PeriodPrice"). The date on which such Proposed Repurchase Notice is given is referred to herein as the "Notice Date." To accept a Repurchase Offer a holder must, within 20 days of the Notice Date, notify the Corporation in writing of its acceptance of the Repurchase Offer and the number of shares of Series B Preferred Stock and number of shares of Junior Preferred Stock it wishes to have repurchased by the Corporation. If a holder does not provide such notice to the Corporation within such 20-day period, then such holder shall be deemed to have rejected the Repurchase Offer. Within 5 days following the end of such 20-day period, the Company and its successors in ----------------- interest Corporation shall repurchase from Parent all the securities specified by each accepting holder at the Repurchase Price per Conversion Share represented by such securities. The date on which such repurchases are effected is referred to herein as the "Repurchase Date." If the aggregate number of Conversion Shares represented by the shares of Series B Preferred Stock and Junior Preferred Stock with respect to which holders have accepted the Repurchase Offer exceeds the Repurchase Number, the Corporation shall repurchase such securities on a pro rata basis based on the number of Conversion Shares with respect to which each such holder accepted the Repurchase Offer. During the period commencing on the Repurchase Date and ending on the 120th day after the Notice Date, the Corporation may repurchase and redeem, at a price not in excess of the Repurchase Price per share, up to an aggregate number of shares of its Common Stock equal to the Repurchase Number less the number of Conversion Shares represented by the shares of Series B Preferred Stock and Junior Preferred Stock repurchased pursuant to the Repurchase Offer. After such 120th day, in order to directly or any portion indirectly repurchase or redeem shares of Common Stock, the Corporation must again comply with the procedures set forth in this subsection (c). Notwithstanding the foregoing, this paragraph shall not prohibit (i) purchases of Equity Securities of the Topping Fee Option, as specified by Parent, at Corporation or any of its Subsidiaries from executives and other management-level employees of the Option Repurchase Price set forth Corporation or any of its Subsidiaries in Section 5.3(b)(i)connection with customary employment and severance arrangements, or (ii) the acquisition, repurchase, exchange, conversion, redemption or other retirement for value by the Corporation of any Junior Dividend Securities by the Corporation in accordance with obligations in existence at the time of original issuance of the Series A Preferred Stock.
(d) Until the Shareholder Approval is obtained, the Corporation shall not (A) utilize amounts available under Section 6.06(a)(ii) of the Credit Agreement (or any comparable provision of any Credit Agreement) for any purpose except to effect repurchases or make payments in respect of the Series B Preferred Stock as required pursuant to this Section G or to make payments with respect to the Series A Preferred Stock, or (B) amend the Credit Agreement in any manner so as to reduce the amounts available to effect repurchases or make payments in respect of the Series B Preferred Stock as required pursuant to this Section G under Section 6.06(a)(ii) of the Credit Agreement (or any comparable provision of any Credit Agreement). Notwithstanding the foregoing, this paragraph shall not prohibit (i) the acquisition, repurchase, exchange, conversion, redemption or other retirement for value of shares of Series B Preferred Stock or any Parity Dividend Security by the Company's Common Stock purchased Corporation in accordance with the terms of such securities, (ii) purchases of Equity Securities of the Corporation or any of its Subsidiaries from executives and other management-level employees of the Corporation or any of its Subsidiaries in connection with customary employment and severance arrangements, or (iii) the acquisition, repurchase, exchange, conversion, redemption or other retirement for value by Parent the Corporation of any Junior Dividend Securities by the Corporation in accordance with obligations in existence at the time of original issuance of the Series A Preferred Stock.
(e) If a Make-Whole Payment would result in an event of default under the Credit Agreement or the Indenture, the Corporation shall not be obligated to make such Make-Whole Payment until such time as the Make-Whole Payment would not result in an event of default under the Credit Agreement or the Indenture, as the case may be; provided that if the Make-Whole Payment would not result in such an event of default if made from the proceeds of the sale of Equity Securities of the Corporation, the Corporation shall use commercially reasonable efforts to effect a sale of Equity Securities to permit it to make the Make-Whole Payment and avoid such an event of default. In the event (i) the Corporation defaults with respect to its obligation to make a Make-Whole Payment or (ii) a Make-Whole Payment is delayed pursuant to the Topping Fee Optionpreceding sentence, as specified by Parent, a late-payment charge shall accrue with respect to the Make-Whole Payment at a per annum rate equal to the Share Repurchase Price set forth dividend rate then in effect pursuant to Section 5.3(b)(iii).
(b) For purposes A of this Section 5.3, the following definitions shall apply: (i) "Option Repurchase Price" shall mean Article III hereof from (A) the difference between time of such default in the ----------------------- Option Repurchase Market/Offer Price case of clause (as defined belowi) for shares of the Company's Common Stock as of the date of the applicable Repurchase Notice and the Exercise Price, multiplied by above or (B) from the number of shares time such Make-Whole Payment would have been due except for the operation of the Company's Common Stock purchasable pursuant to preceding sentence in the Topping Fee Option or the portion thereof covered by the applicable Repurchase Notice, but only if the Option Repurchase Market/Offer Price is greater than the Exercise Price; case of clause (ii) "Option ------ Repurchase Market/Offer Price" shall mean, as of any date, the higher of (A) the ----------------------------- highest price per share offered as of such date pursuant to any tender or exchange offer or other offer with respect to a business combination offer involving the Company or any of its material subsidiaries as the target party which was made prior to such date and not terminated or withdrawn as of such dateabove, and (B) the Fair Market Value (as defined below) of the Company's Common Stock as of shall accrue until such date; (iii) "Share Repurchase Price" shall mean the product of ---------------------- (A) the sum of (1) the Exercise Price paid by Parent per share of the Company's Common Stock acquired pursuant to the Topping Fee Option, amount and (2) if the Share Repurchase Market/Offer Price (as defined below) such charge is greater than the Exercise Price, the difference between the Share Repurchase Market/Offer Price and the Exercise Price, and (B) the number of shares of the Company's Common Stock to be repurchased pursuant to this Section 5.3; (iv) "paid.
Appears in 1 contract
Certain Repurchases. (a) Upon If, at any time after April 5, 2002, one or more members of the Investor Group (collectively, the "Selling Investors") sell shares of Series A Preferred Stock and/or Common Shares, in a transaction or series of related transactions (such sale, an "Investor Sale"), to any Person other than a member of the Investor Group, the Corporation shall, if the Selling Investors so elect, repurchase (a "Corporation Repurchase") from the Selling Investors, for cash, shares of Series B Preferred Stock representing a number of Conversion Shares equal to the Sale Number less the number of Make-Whole Conversion Shares with respect to such Investor Sale. The price paid by the Corporation in any Corporation Repurchase shall equal the Investor Sale Price per Conversion Share represented by the securities purchased in such Corporation Repurchase. Subject to subsection (b) of this Section G, in the event that the Selling Investors include shares of Series B Preferred Stock in an Investor Sale, the Corporation shall pay the Selling Investors, with respect to the Make-Whole Conversion Shares, an amount per Make-Whole Conversion Share equal to the Investor Sale Price less the amount per Make-Whole Conversion Share paid in such Investor Sale (such payment, the "Make-Whole Payment"). Notwithstanding the foregoing, the Corporation shall have no obligation to effect a Corporation Repurchase or make a Make-Whole Payment unless the Selling Investors afford the Corporation a reasonable opportunity to include in the Investor Sale up to that number of shares of Common Stock that would be sufficient to permit the Corporation to satisfy its obligations pursuant to this Section G, and the Corporation shall have no obligation to effect a Corporation Repurchase or make a Make-Whole Payment with respect to any Investor Sale that is consummated after the Approval Date. Each Corporation Repurchase and Make-Whole Payment shall be completed by the Corporation within 15 days of the consummation of the related Investor Sale.
(b) Prior to any sale by the Selling Investors of any shares of Series B Preferred Stock in an Investor Sale, the Selling Investors shall give written notice to the ------------------- Company Corporation of the Selling Investors' desire to sell such shares, which notice shall identify the number of such shares the Selling Investors desire to sell (such notice, a "Series B Sale Notice"). The Series B Sale Notice shall be given at least 10 Business Days prior to the consummation of the related Investor Sale. The Selling Investors shall not include such shares in such Investor Sale if, within 5 Business Days of the delivery of the Series B Sale Notice, the Corporation delivers a written notice to the Selling Investors to the effect that it will effect a Corporation Repurchase with respect to such shares following the completion of such Investor Sale.
(c) Prior to the Approval Date, the Corporation shall not effect any direct or indirect redemption or repurchase of Common Stock unless it has complied with the procedures set forth in this subsection (c). In the event the Corporation intends to effect any direct or indirect redemption or repurchase of Common Stock, the Corporation shall first offer (a "Repurchase Offer") to repurchase shares of Series B Preferred Stock and Junior Preferred Stock at the Repurchase Price (as defined below) per Conversion Share represented by Parent the shares of Series B Preferred Stock and Junior Preferred Stock to be repurchased. The Corporation shall give written notice (a "Proposed Repurchase Notice") of such offer to each holder of Series B Preferred Stock and each holder of Junior Preferred Stock which notice shall specify (i) the aggregate number (the "Repurchase NoticeNumber") at any time prior of Conversion Shares represented by shares of Series B Preferred Stock and Junior Preferred Stock that the Corporation is willing to repurchase, and (ii) the Topping Fee ----------------- Termination Date proposed repurchase price for each such Conversion Share (the "Repurchase PeriodPrice"). The date on which such Proposed Repurchase Notice is given is referred to herein as the "Notice Date." To accept a Repurchase Offer a holder must, within 20 days of the Notice Date, notify the Corporation in writing of its acceptance of the Repurchase Offer and the number of shares of Series B Preferred Stock and number of shares of Junior Preferred Stock it wishes to have repurchased by the Corporation. If a holder does not provide such notice to the Corporation within such 20-day period, then such holder shall be deemed to have rejected the Repurchase Offer. Within 5 days following the end of such 20-day period, the Company and its successors in ----------------- interest Corporation shall repurchase from Parent all the securities specified by each accepting holder at the Repurchase Price per Conversion Share represented by such securities. The date on which such repurchases are effected is referred to herein as the "Repurchase Date." If the aggregate number of Conversion Shares represented by the shares of Series B Preferred Stock and Junior Preferred Stock with respect to which holders have accepted the Repurchase Offer exceeds the Repurchase Number, the Corporation shall repurchase such securities on a pro rata basis based on the number of Conversion Shares with respect to which each such holder accepted the Repurchase Offer. During the period commencing on the Repurchase Date and ending on the 120th day after the Notice Date, the Corporation may repurchase and redeem, at a price not in excess of the Repurchase Price per share, up to an aggregate number of shares of its Common Stock equal to the Repurchase Number less the number of Conversion Shares represented by the shares of Series B Preferred Stock and Junior Preferred Stock repurchased pursuant to the Repurchase Offer. After such 120th day, in order to directly or any portion indirectly repurchase or redeem shares of Common Stock, the Corporation must again comply with the procedures set forth in this subsection (c). Notwithstanding the foregoing, this paragraph shall not prohibit (i) purchases of Equity Securities of the Topping Fee Option, as specified by Parent, at Corporation or any of its Subsidiaries from executives and other management-level employees of the Option Repurchase Price set forth Corporation or any of its Subsidiaries in Section 5.3(b)(i)connection with customary employment and severance arrangements, or (ii) the acquisition, repurchase, exchange, conversion, redemption or other retirement for value by the Corporation of any Junior Dividend Securities by the Corporation in accordance with obligations in existence at the time of original issuance of the Series A Preferred Stock.
(d) Until the Series B Shareholder Approval is obtained, the Corporation shall not (A) utilize amounts available under Section 6.06(a)(ii) of the Credit Agreement (or any comparable provision of any Credit Agreement) for any purpose except to effect repurchases or make payments in respect of the Series B Preferred Stock as required pursuant to this Section G or to make payments with respect to the Series A Preferred Stock, or (B) amend the Credit Agreement in any manner so as to reduce the amounts available to effect repurchases or make payments in respect of the Series B Preferred Stock as required pursuant to this Section G under Section 6.06(a)(ii) of the Credit Agreement (or any comparable provision of any Credit Agreement). Notwithstanding the foregoing, this paragraph shall not prohibit (i) the acquisition, repurchase, exchange, conversion, redemption or other retirement for value of shares of Series B Preferred Stock or any Parity Dividend Security by the Company's Common Stock purchased Corporation in accordance with the terms of such securities, (ii) purchases of Equity Securities of the Corporation or any of its Subsidiaries from executives and other management-level employees of the Corporation or any of its Subsidiaries in connection with customary employment and severance arrangements, or (iii) the acquisition, repurchase, exchange, conversion, redemption or other retirement for value by Parent the Corporation of any Junior Dividend Securities by the Corporation in accordance with obligations in existence at the time of original issuance of the Series A Preferred Stock.
(e) If a Make-Whole Payment would result in an event of default under the Credit Agreement or the Indenture, the Corporation shall not be obligated to make such Make-Whole Payment until such time as the Make-Whole Payment would not result in an event of default under the Credit Agreement or the Indenture, as the case may be; provided that if the Make-Whole Payment would not result in such an event of default if made from the proceeds of the sale of Equity Securities of the Corporation, the Corporation shall use commercially reasonable efforts to effect a sale of Equity Securities to permit it to make the Make-Whole Payment and avoid such an event of default. In the event (i) the Corporation defaults with respect to its obligation to make a Make-Whole Payment or (ii) a Make-Whole Payment is delayed pursuant to the Topping Fee Optionpreceding sentence, as specified by Parent, a late-payment charge shall accrue with respect to the Make-Whole Payment at a per annum rate equal to the Share Repurchase Price set forth dividend rate then in effect pursuant to Section 5.3(b)(iii).
(b) For purposes A of this Section 5.3, the following definitions shall apply: (i) "Option Repurchase Price" shall mean Article III hereof from (A) the difference between time of such default in the ----------------------- Option Repurchase Market/Offer Price case of clause (as defined belowi) for shares of the Company's Common Stock as of the date of the applicable Repurchase Notice and the Exercise Price, multiplied by above or (B) from the number of shares time such Make-Whole Payment would have been due except for the operation of the Company's Common Stock purchasable pursuant to preceding sentence in the Topping Fee Option or the portion thereof covered by the applicable Repurchase Notice, but only if the Option Repurchase Market/Offer Price is greater than the Exercise Price; case of clause (ii) "Option ------ Repurchase Market/Offer Price" shall mean, as of any date, the higher of (A) the ----------------------------- highest price per share offered as of such date pursuant to any tender or exchange offer or other offer with respect to a business combination offer involving the Company or any of its material subsidiaries as the target party which was made prior to such date and not terminated or withdrawn as of such dateabove, and (B) the Fair Market Value (as defined below) of the Company's Common Stock as of shall accrue until such date; (iii) "Share Repurchase Price" shall mean the product of ---------------------- (A) the sum of (1) the Exercise Price paid by Parent per share of the Company's Common Stock acquired pursuant to the Topping Fee Option, amount and (2) if the Share Repurchase Market/Offer Price (as defined below) such charge is greater than the Exercise Price, the difference between the Share Repurchase Market/Offer Price and the Exercise Price, and (B) the number of shares of the Company's Common Stock to be repurchased pursuant to this Section 5.3; (iv) "paid.
Appears in 1 contract
Certain Repurchases. (a) Upon If, at any time after March 5, 2002, one or more members of the Investor Group (collectively, the "SELLING INVESTORS") sell shares of Series A Preferred Stock and/or Common Shares, in a transaction or series of related transactions (such sale, an "INVESTOR SALE"), to any Person other than a member of the Investor Group, the Corporation shall, if the Selling Investors so elect, repurchase (a "CORPORATION REPURCHASE") from the Selling Investors, for cash, shares of Series B Preferred Stock representing a number of Conversion Shares equal to the Sale Number less the number of Make-Whole Conversion Shares with respect to such Investor Sale. The price paid by the Corporation in any Corporation Repurchase shall equal the Investor Sale Price per Conversion Share represented by the securities purchased in such Corporation Repurchase. Subject to subsection (b) of this Section G, in the event that the Selling Investors include shares of Series B Preferred Stock in an Investor Sale, the Corporation shall pay the Selling Investors, with respect to the Make-Whole Conversion Shares, an amount per Make-Whole Conversion Share equal to the Investor Sale Price less the amount per Make-Whole Conversion Share paid in such Investor Sale (such payment, the "MAKE-WHOLE PAYMENT"). Notwithstanding the foregoing, the Corporation shall have no obligation to effect a Corporation Repurchase or make a Make-Whole Payment unless the Selling Investors afford the Corporation a reasonable opportunity to include in the Investor Sale up to that number of shares of Common Stock that would be sufficient to permit the Corporation to satisfy its obligations pursuant to this Section G, and the Corporation shall have no obligation to effect a Corporation Repurchase or make a Make-Whole Payment with respect to any Investor Sale that is consummated after the Approval Date. Each Corporation Repurchase and Make-Whole Payment shall be completed by the Corporation within 15 days of the consummation of the related Investor Sale.
(b) Prior to any sale by the Selling Investors of any shares of Series B Preferred Stock in an Investor Sale, the Selling Investors shall give written notice to the ------------------- Company by Parent Corporation of the Selling Investors' desire to sell such shares, which notice shall identify the number of such shares the Selling Investors desire to sell (the such notice, a "Repurchase NoticeSERIES B SALE NOTICE") ). The Series B Sale Notice shall be given at any time least 10 Business Days prior to the Topping Fee ----------------- Termination Date (consummation of the "Repurchase Period")related Investor Sale. The Selling Investors shall not include such shares in such Investor Sale if, within 5 Business Days of the delivery of the Series B Sale Notice, the Company Corporation delivers a written notice to the Selling Investors to the effect that it will effect a Corporation Repurchase with respect to such shares following the completion of such Investor Sale.
(c) Prior to the Approval Date, the Corporation shall not effect any direct or indirect redemption or repurchase of Common Stock unless it has complied with the procedures set forth in this subsection (c). In the event the Corporation intends to effect any direct or indirect redemption or repurchase of Common Stock, the Corporation shall first offer (a "REPURCHASE OFFER") to repurchase shares of Series B Preferred Stock and its successors in ----------------- interest Junior Preferred Stock at the Repurchase Price (as defined below) per Conversion Share represented by the shares of Series B Preferred Stock and Junior Preferred Stock to be repurchased. The Corporation shall repurchase from Parent all or any portion give written notice (a "PROPOSED REPURCHASE NOTICE") of such offer to each holder of Series B Preferred Stock and each holder of Junior Preferred Stock which notice shall specify (i) the Topping Fee Optionaggregate number (the "REPURCHASE NUMBER") of Conversion Shares represented by shares of Series B Preferred Stock and Junior Preferred Stock that the Corporation is willing to repurchase, and (ii) the proposed repurchase price for each such Conversion Share (the "REPURCHASE PRICE"). The date on which such Proposed Repurchase Notice is given is referred to herein as the "NOTICE DATE." To accept a Repurchase Offer a holder must, within 20 days of the Notice Date, notify the Corporation in writing of its acceptance of the Repurchase Offer and the number of shares of Series B Preferred Stock and number of shares of Junior Preferred Stock it wishes to have repurchased by the Corporation. If a holder does not provide such notice to the Corporation within such 20-day period, then such holder shall be deemed to have rejected the Repurchase Offer. Within 5 days following the end of such 20-day period, the Corporation shall repurchase the securities specified by Parenteach accepting holder at the Repurchase Price per Conversion Share represented by such securities. The date on which such repurchases are effected is referred to herein as the "REPURCHASE DATE." If the aggregate number of Conversion Shares represented by the shares of Series B Preferred Stock and Junior Preferred Stock with respect to which holders have accepted the Repurchase Offer exceeds the Repurchase Number, the Corporation shall repurchase such securities on a pro rata basis based on the number of Conversion Shares with respect to which each such holder accepted the Repurchase Offer. During the period commencing on the Repurchase Date and ending on the 120th day after the Notice Date, the Corporation may repurchase and redeem, at a price not in excess of the Option Repurchase Price per share, up to an aggregate number of shares of its Common Stock equal to the Repurchase Number less the number of Conversion Shares represented by the shares of Series B Preferred Stock and Junior Preferred Stock repurchased pursuant to the Repurchase Offer. After such 120th day, in order to directly or indirectly repurchase or redeem shares of Common Stock, the Corporation must again comply with the procedures set forth in Section 5.3(b)(ithis subsection (c). Notwithstanding the foregoing, this paragraph shall not prohibit (i) purchases of Equity Securities of the Corporation or any of its Subsidiaries from executives and other management-level employees of the Corporation or any of its Subsidiaries in connection with customary employment and severance arrangements, or (ii) the acquisition, repurchase, exchange, conversion, redemption or other retirement for value by the Corporation of any Junior Dividend Securities by the Corporation in accordance with obligations in existence at the time of original issuance of the Series A Preferred Stock.
(d) Until the Shareholder Approval is obtained, the Corporation shall not (A) utilize amounts available under Section 6.06(a)(ii) of the Credit Agreement (or any comparable provision of any Credit Agreement) for any purpose except to effect repurchases or make payments in respect of the Series B Preferred Stock as required pursuant to this Section G or to make payments with respect to the Series A Preferred Stock, or (B) amend the Credit Agreement in any manner so as to reduce the amounts available to effect repurchases or make payments in respect of the Series B Preferred Stock as required pursuant to this Section G under Section 6.06(a)(ii) of the Credit Agreement (or any comparable provision of any Credit Agreement). Notwithstanding the foregoing, this paragraph shall not prohibit (i) the acquisition, repurchase, exchange, conversion, redemption or other retirement for value of shares of Series B Preferred Stock or any Parity Dividend Security by the Company's Common Stock purchased Corporation in accordance with the terms of such securities, (ii) purchases of Equity Securities of the Corporation or any of its Subsidiaries from executives and other management-level employees of the Corporation or any of its Subsidiaries in connection with customary employment and severance arrangements, or (iii) the acquisition, repurchase, exchange, conversion, redemption or other retirement for value by Parent the Corporation of any Junior Dividend Securities by the Corporation in accordance with obligations in existence at the time of original issuance of the Series A Preferred Stock.
(e) If a Make-Whole Payment would result in an event of default under the Credit Agreement or the Indenture, the Corporation shall not be obligated to make such Make-Whole Payment until such time as the Make-Whole Payment would not result in an event of default under the Credit Agreement or the Indenture, as the case may be; PROVIDED that if the Make-Whole Payment would not result in such an event of default if made from the proceeds of the sale of Equity Securities of the Corporation, the Corporation shall use commercially reasonable efforts to effect a sale of Equity Securities to permit it to make the Make-Whole Payment and avoid such an event of default. In the event (i) the Corporation defaults with respect to its obligation to make a Make-Whole Payment or (ii) a Make-Whole Payment is delayed pursuant to the Topping Fee Optionpreceding sentence, as specified by Parent, a late-payment charge shall accrue with respect to the Make-Whole Payment at a per annum rate equal to the Share Repurchase Price set forth dividend rate then in effect pursuant to Section 5.3(b)(iii).
(b) For purposes A of this Section 5.3, the following definitions shall apply: (i) "Option Repurchase Price" shall mean Article III hereof from (A) the difference between time of such default in the ----------------------- Option Repurchase Market/Offer Price case of clause (as defined belowi) for shares of the Company's Common Stock as of the date of the applicable Repurchase Notice and the Exercise Price, multiplied by above or (B) from the number of shares time such Make-Whole Payment would have been due except for the operation of the Company's Common Stock purchasable pursuant to preceding sentence in the Topping Fee Option or the portion thereof covered by the applicable Repurchase Notice, but only if the Option Repurchase Market/Offer Price is greater than the Exercise Price; case of clause (ii) "Option ------ Repurchase Market/Offer Price" shall mean, as of any date, the higher of (A) the ----------------------------- highest price per share offered as of such date pursuant to any tender or exchange offer or other offer with respect to a business combination offer involving the Company or any of its material subsidiaries as the target party which was made prior to such date and not terminated or withdrawn as of such dateabove, and (B) the Fair Market Value (as defined below) of the Company's Common Stock as of shall accrue until such date; (iii) "Share Repurchase Price" shall mean the product of ---------------------- (A) the sum of (1) the Exercise Price paid by Parent per share of the Company's Common Stock acquired pursuant to the Topping Fee Option, amount and (2) if the Share Repurchase Market/Offer Price (as defined below) such charge is greater than the Exercise Price, the difference between the Share Repurchase Market/Offer Price and the Exercise Price, and (B) the number of shares of the Company's Common Stock to be repurchased pursuant to this Section 5.3; (iv) "paid.
Appears in 1 contract
Samples: Investment Agreement (Magellan Health Services Inc)
Certain Repurchases. (a) Upon If, at any time after March 5, 2002, one or more members of the Investor Group (collectively, the "Selling Investors") sell shares of Series A Preferred Stock and/or Common Shares, in a transaction or series of related transactions (such sale, an "Investor Sale"), to any Person other than a member of the Investor Group, the Corporation shall, if the Selling Investors so elect, repurchase (a "Corporation Repurchase") from the Selling Investors, for cash, shares of Series B Preferred Stock representing a number of Conversion Shares equal to the Sale Number less the number of Make-Whole Conversion Shares with respect to such Investor Sale. The price paid by the Corporation in any Corporation Repurchase shall equal the Investor Sale Price per Conversion Share represented by the securities purchased in such Corporation Repurchase. Subject to subsection (b) of this Section G, in the event that the Selling Investors include shares of Series B Preferred Stock in an Investor Sale, the Corporation shall pay the Selling Investors, with respect to the Make-Whole Conversion Shares, an amount per Make-Whole Conversion Share equal to the Investor Sale Price less the amount per Make-Whole Conversion Share paid in such Investor Sale (such payment, the "Make-Whole Payment"). Notwithstanding the foregoing, the Corporation shall have no obligation to effect a Corporation Repurchase or make a Make-Whole Payment unless the Selling Investors afford the Corporation a reasonable opportunity to include in the Investor Sale up to that number of shares of Common Stock that would be sufficient to permit the Corporation to satisfy its obligations pursuant to this Section G, and the Corporation shall have no obligation to effect a Corporation Repurchase or make a Make-Whole Payment with respect to any Investor Sale that is consummated after the Approval Date. Each Corporation Repurchase and Make-Whole Payment shall be completed by the Corporation within 15 days of the consummation of the related Investor Sale.
(b) Prior to any sale by the Selling Investors of any shares of Series B Preferred Stock in an Investor Sale, the Selling Investors shall give written notice to the ------------------- Company Corporation of the Selling Investors' desire to sell such shares, which notice shall identify the number of such shares the Selling Investors desire to sell (such notice, a "Series B Sale Notice"). The Series B Sale Notice shall be given at least 10 Business Days prior to the consummation of the related Investor Sale. The Selling Investors shall not include such shares in such Investor Sale if, within 5 Business Days of the delivery of the Series B Sale Notice, the Corporation delivers a written notice to the Selling Investors to the effect that it will effect a Corporation Repurchase with respect to such shares following the completion of such Investor Sale.
(c) Prior to the Approval Date, the Corporation shall not effect any direct or indirect redemption or repurchase of Common Stock unless it has complied with the procedures set forth in this subsection (c). In the event the Corporation intends to effect any direct or indirect redemption or repurchase of Common Stock, the Corporation shall first offer (a "Repurchase Offer") to repurchase shares of Series B Preferred Stock and Junior Preferred Stock at the Repurchase Price (as defined below) per Conversion Share represented by Parent the shares of Series B Preferred Stock and Junior Preferred Stock to be repurchased. The Corporation shall give written notice (a "Proposed Repurchase Notice") of such offer to each holder of Series B Preferred Stock and each holder of Junior Preferred Stock which notice shall specify (i) the aggregate number (the "Repurchase NoticeNumber") at any time prior of Conversion Shares represented by shares of Series B Preferred Stock and Junior Preferred Stock that the Corporation is willing to repurchase, and (ii) the Topping Fee ----------------- Termination Date proposed repurchase price for each such Conversion Share (the "Repurchase PeriodPrice"). The date on which such Proposed Repurchase Notice is given is referred to herein as the "Notice Date." To accept a Repurchase Offer a holder must, within 20 days of the Notice Date, notify the Corporation in writing of its acceptance of the Repurchase Offer and the number of shares of Series B Preferred Stock and number of shares of Junior Preferred Stock it wishes to have repurchased by the Corporation. If a holder does not provide such notice to the Corporation within such 20-day period, then such holder shall be deemed to have rejected the Repurchase Offer. Within 5 days following the end of such 20-day period, the Company and its successors in ----------------- interest Corporation shall repurchase from Parent all the securities specified by each accepting holder at the Repurchase Price per Conversion Share represented by such securities. The date on which such repurchases are effected is referred to herein as the "Repurchase Date." If the aggregate number of Conversion Shares represented by the shares of Series B Preferred Stock and Junior Preferred Stock with respect to which holders have accepted the Repurchase Offer exceeds the Repurchase Number, the Corporation shall repurchase such securities on a pro rata basis based on the number of Conversion Shares with respect to which each such holder accepted the Repurchase Offer. During the period commencing on the Repurchase Date and ending on the 120th day after the Notice Date, the Corporation may repurchase and redeem, at a price not in excess of the Repurchase Price per share, up to an aggregate number of shares of its Common Stock equal to the Repurchase Number less the number of Conversion Shares represented by the shares of Series B Preferred Stock and Junior Preferred Stock repurchased pursuant to the Repurchase Offer. After such 120th day, in order to directly or any portion indirectly repurchase or redeem shares of Common Stock, the Corporation must again comply with the procedures set forth in this subsection (c). Notwithstanding the foregoing, this paragraph shall not prohibit (i) purchases of Equity Securities of the Topping Fee Option, as specified by Parent, at Corporation or any of its Subsidiaries from executives and other management-level employees of the Option Repurchase Price set forth Corporation or any of its Subsidiaries in Section 5.3(b)(i)connection with customary employment and severance arrangements, or (ii) the acquisition, repurchase, exchange, conversion, redemption or other retirement for value by the Corporation of any Junior Dividend Securities by the Corporation in accordance with obligations in existence at the time of original issuance of the Series A Preferred Stock.
(d) Until the Shareholder Approval is obtained, the Corporation shall not (A) utilize amounts available under Section 6.06(a)(ii) of the Credit Agreement (or any comparable provision of any Credit Agreement) for any purpose except to effect repurchases or make payments in respect of the Series B Preferred Stock as required pursuant to this Section G or to make payments with respect to the Series A Preferred Stock, or (B) amend the Credit Agreement in any manner so as to reduce the amounts available to effect repurchases or make payments in respect of the Series B Preferred Stock as required pursuant to this Section G under Section 6.06(a)(ii) of the Credit Agreement (or any comparable provision of any Credit Agreement). Notwithstanding the foregoing, this paragraph shall not prohibit (i) the acquisition, repurchase, exchange, conversion, redemption or other retirement for value of shares of Series B Preferred Stock or any Parity Dividend Security by the Company's Common Stock purchased Corporation in accordance with the terms of such securities, (ii) purchases of Equity Securities of the Corporation or any of its Subsidiaries from executives and other management-level employees of the Corporation or any of its Subsidiaries in connection with customary employment and severance arrangements, or (iii) the acquisition, repurchase, exchange, conversion, redemption or other retirement for value by Parent the Corporation of any Junior Dividend Securities by the Corporation in accordance with obligations in existence at the time of original issuance of the Series A Preferred Stock.
(e) If a Make-Whole Payment would result in an event of default under the Credit Agreement or the Indenture, the Corporation shall not be obligated to make such Make-Whole Payment until such time as the Make-Whole Payment would not result in an event of default under the Credit Agreement or the Indenture, as the case may be; provided that if the Make-Whole Payment would not result in such an event of default if made from the proceeds of the sale of Equity Securities of the Corporation, the Corporation shall use commercially reasonable efforts to effect a sale of Equity Securities to permit it to make the Make-Whole Payment and avoid such an event of default. In the event (i) the Corporation defaults with respect to its obligation to make a Make-Whole Payment or (ii) a Make-Whole Payment is delayed pursuant to the Topping Fee Optionpreceding sentence, as specified by Parent, a late-payment charge shall accrue with respect to the Make-Whole Payment at a per annum rate equal to the Share Repurchase Price set forth dividend rate then in effect pursuant to Section 5.3(b)(iii).
(b) For purposes A of this Section 5.3, the following definitions shall apply: (i) "Option Repurchase Price" shall mean Article III hereof from (A) the difference between time of such default in the ----------------------- Option Repurchase Market/Offer Price case of clause (as defined belowi) for shares of the Company's Common Stock as of the date of the applicable Repurchase Notice and the Exercise Price, multiplied by above or (B) from the number of shares time such Make-Whole Payment would have been due except for the operation of the Company's Common Stock purchasable pursuant to preceding sentence in the Topping Fee Option or the portion thereof covered by the applicable Repurchase Notice, but only if the Option Repurchase Market/Offer Price is greater than the Exercise Price; case of clause (ii) "Option ------ Repurchase Market/Offer Price" shall mean, as of any date, the higher of (A) the ----------------------------- highest price per share offered as of such date pursuant to any tender or exchange offer or other offer with respect to a business combination offer involving the Company or any of its material subsidiaries as the target party which was made prior to such date and not terminated or withdrawn as of such dateabove, and (B) the Fair Market Value (as defined below) of the Company's Common Stock as of shall accrue until such date; (iii) "Share Repurchase Price" shall mean the product of ---------------------- (A) the sum of (1) the Exercise Price paid by Parent per share of the Company's Common Stock acquired pursuant to the Topping Fee Option, amount and (2) if the Share Repurchase Market/Offer Price (as defined below) such charge is greater than the Exercise Price, the difference between the Share Repurchase Market/Offer Price and the Exercise Price, and (B) the number of shares of the Company's Common Stock to be repurchased pursuant to this Section 5.3; (iv) "paid.
Appears in 1 contract
