Notices; Method of Exercising Repurchase Right, Etc. (a) Unless the Company shall have theretofore called for redemption all of the outstanding Securities, the Company shall give to the Trustee, the Paying Agent and all Holders of Securities, in the manner provided in this Section 3.4, a notice containing the information required pursuant to the following provisions of this Section 3.4(a) (the "Company Notice") (i) on or before the 20th Business Day prior to the Repurchase Date or, in the event of a Fundamental Change arising from a Change of Control, the anticipated Effective Date (but in no event earlier than 45 days prior to the Repurchase Date or anticipated Effective Date, as the case may be), and (ii) within 15 Business Days after the Company knows or reasonably should know of the occurrence of a Fundamental Change that arises as a result of any Termination of Trading. Prior to or concurrently with the delivery of any Company Notice, the Company will issue a press release or publish such information on the Company's then existing website including the information required to be included in such Company Notice hereunder. The Company shall also deliver a copy of any Company Notice to the Trustee. At the request and expense of the Company on or before the fifth Business Day prior to the date on which the Company Notice is to be mailed, the Trustee shall provide the Company Notice to the Holders in accordance with the provisions of this Indenture. Each Company Notice shall state: (i) the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be, (ii) the date by which the repurchase right must be exercised, (iii) the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, and whether the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, shall be paid by the Company in cash or by delivery of shares of Common Stock, or a specified combination thereof and the percentage of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, that will be paid in shares of Common Stock (which indication shall be irrevocable, subject to the satisfaction (or waiver) of the conditions set forth in Section 3.3), (iv) if the notice relates to the occurrence of a Fundamental Change, the events causing the Fundamental Change and the date of the Fundamental Change, (v) that Securities with respect to which a Holder gives a Repurchase Notice or Fundamental Change Repurchase Notice may be converted only if the Holder withdraws the Repurchase Notice or Fundamental Change Repurchase Notice as to such Securities in accordance with the terms of this Indenture, (vi) a description of the procedure that a Holder must follow to exercise a repurchase right, and the place or places where such Securities are to be surrendered for payment of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, and accrued but unpaid interest (and Liquidated Damages), if any, to, but excluding, the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be, (vii) that on the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be, the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, and accrued but unpaid interest (and Liquidated Damages), if any, to, but excluding, the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be, will become due and payable upon each such Security designated by the Holder to be repurchased, and that interest thereon shall cease to accrue on and after said date, (viii) the Conversion Price then in effect, (ix) the place or places that the Security certificate (including the Election of Holder to Require Repurchase attached thereto) and the Repurchase Notice (as defined below) shall be delivered, and, if the Security is a Restricted Security, the place or places that the Transfer Certificate in the form set forth in Exhibit C, required by Section 2.12 shall be delivered, (x) the name and address of the Paying Agent and Conversion Agent, and (xi) if the notice relates to a Fundamental Change, the estimated amount of any Make-Whole Premium and the respective percentages of such Make-Whole Premium that will be paid (as contemplated by Section 6.1(b)) in shares of Common Stock and in cash (which indication shall be irrevocable), subject to the satisfaction (or waiver) of the conditions set forth in Section 6.1(c), in the event that a Holder should, in lieu of electing to have Securities repurchased on the Fundamental Change Repurchase Date, elect to convert such Securities during the Fundamental Change Conversion Period, and (xii) any other information to be included therein pursuant to Section 6.1. No failure of the Company to give the foregoing notices or defect therein shall limit any Holder's right to exercise a repurchase right or affect the validity of the proceedings for the repurchase of Securities. If any of the foregoing provisions or other provisions of this Article III are inconsistent with applicable law, such law shall govern. (b) To exercise a repurchase right pursuant to Section 3.1 or Section 3.2, a Holder shall deliver to the Paying Agent (i) written notice (in the case of a repurchase pursuant to Section 3.1, a "Repurchase Notice" and, in the case of a repurchase pursuant to Section 3.2, a "Fundamental Change Repurchase Notice") of the Holder's exercise of such right, which notice shall set forth the name of the Holder, the principal amount of the Securities to be repurchased (and, if any Security is to repurchased in part, the portion of the principal amount thereof to be repurchased (which portion must be in principal amounts of $1,000 or a whole multiple of $1,000) and the name of the Person in which the portion thereof to remain outstanding after such repurchase is to be registered), if certificated, the certificate numbers of the Securities to be repurchased, and a statement that an election to exercise the repurchase right pursuant to the terms and conditions specified in the Securities and the Indenture is being made thereby, and, in the event that any portion of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, shall be paid in shares of Common Stock, the name or names (with addresses) in which the certificate or certificates for shares of Common Stock shall be issued, and (ii) the Securities to which the Repurchase Notice or Fundamental Change Repurchase Notice relates at any time after delivery of the Repurchase Notice or the Fundamental Change Repurchase Notice, as the case may be (together with all necessary endorsements), at the offices of the Paying Agent, such delivery being a condition to receipt by the Holder of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, thereof; provided, however, that such Repurchase Price or Fundamental Change Repurchase Price, as the case may be, shall be so paid pursuant to this Section 3.4(b) only if the Securities so delivered to the Paying Agent shall conform in all respects to the description thereof in the related Repurchase Notice or Fundamental Change Repurchase Notice. In the case of a repurchase right pursuant to Section 3.1 and Section 3.2, such delivery shall be at any time from the opening of business on the date that is 20 Business Days prior to the Repurchase Date until the close of business on the second Business Day prior to the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be, subject to extension to comply with applicable law. Owners of beneficial interests in Global Securities shall provide a Repurchase Notice or Fundamental Change Repurchase Notice in accordance with the Applicable Procedures of the Depositary.
Appears in 1 contract
Notices; Method of Exercising Repurchase Right, Etc. (a) Unless the Company shall have theretofore called for redemption all this Security, on or before the date that is 30 Business Days after the occurrence of the outstanding Securitiesa Change in Control, the Company shall give notice to the Trustee, the Paying Agent and all Holders of Securities, in the manner provided in this Section 3.4, a notice containing the information required pursuant to the following provisions of this Section 3.4(a) Holder (the "Company Notice") (i) on or before the 20th Business Day prior to the Repurchase Date or, in the event of a Fundamental Change arising from a Change of Control, the anticipated Effective Date (but in no event earlier than 45 days prior to the Repurchase Date or anticipated Effective Date, as the case may be), and (ii) within 15 Business Days after the Company knows or reasonably should know of the occurrence of a Fundamental the Change that arises in Control and of the repurchase right set forth herein arising as a result of any Termination of Trading. Prior to or concurrently with the delivery of any Company Notice, the Company will issue a press release or publish such information on the Company's then existing website including the information required to be included in such Company Notice hereunder. The Company shall also deliver a copy of any Company Notice to the Trustee. At the request and expense of the Company on or before the fifth Business Day prior to the date on which the Company Notice is to be mailed, the Trustee shall provide the Company Notice to the Holders in accordance with the provisions of this Indenturethereof. Each Company Notice shall state:
(i) the Repurchase Date or date of such Change in Control and, briefly, the Fundamental events causing such Change Repurchase Date, as the case may be,in Control;
(ii) the date by which the repurchase right Change in Control Purchase Notice (as defined below) must be exercised,delivered;
(iii) the Repurchase Price or Date;
(iv) the Fundamental Change Repurchase Price, as the case may be, and whether the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, shall be paid by the Company in cash or by delivery of shares of Common Stock, or a specified combination thereof and the percentage of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, that will be paid in shares of Common Stock (which indication shall be irrevocable, subject to the satisfaction (or waiver) of the conditions set forth in Section 3.3),
(iv) if the notice relates to the occurrence of a Fundamental Change, the events causing the Fundamental Change and the date of the Fundamental Change,; and
(v) that Securities with respect to which a Holder gives a Repurchase Notice or Fundamental Change Repurchase Notice may be converted only if the Holder withdraws the Repurchase Notice or Fundamental Change Repurchase Notice as to such Securities in accordance with the terms of this Indenture,
(vi) a description of the procedure that a Holder must follow to exercise a repurchase right, and the place or places where such Securities are to be surrendered for payment of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, and accrued but unpaid interest (and Liquidated Damages), if any, to, but excluding, the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be,
(vii) that on the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be, the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, and accrued but unpaid interest (and Liquidated Damages), if any, to, but excluding, the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be, will become due and payable upon each such Security designated by the Holder to be repurchased, and that interest thereon shall cease to accrue on and after said date,
(viii) the Conversion Price then in effect,
(ix) the place or places that the Security certificate (including the Election of Holder to Require Repurchase attached thereto) and the Repurchase Notice (as defined below) shall be delivered, and, if the Security is a Restricted Security, the place or places that the Transfer Certificate in the form set forth in Exhibit C, required by Section 2.12 shall be delivered,
(x) the name and address of the Paying Agent and Conversion Agent, and
(xi) if the notice relates to a Fundamental Change, the estimated amount of any Make-Whole Premium and the respective percentages of such Make-Whole Premium that will be paid (as contemplated by Section 6.1(b)) in shares of Common Stock and in cash (which indication shall be irrevocable), subject to the satisfaction (or waiver) of the conditions set forth in Section 6.1(c), in the event that a Holder should, in lieu of electing to have Securities repurchased on the Fundamental Change Repurchase Date, elect to convert such Securities during the Fundamental Change Conversion Period, and
(xii) any other information to be included therein pursuant to Section 6.1. No failure of the Company to give the foregoing notices or defect therein shall limit any Holder's right to exercise a repurchase right or affect the validity of the proceedings for the repurchase of Securities. If any of the foregoing provisions or other provisions of this Article III are inconsistent with applicable law, such law shall govern.
(b) If any Senior Indebtedness is outstanding at the time of the occurrence of a Change in Control, and such Senior Indebtedness prohibits by its terms the Company's repurchase of its Securities upon the occurrence of a Change in Control, the Company shall prior to giving the Company Notice either:
(i) repay in full all obligations and terminate all commitments under or in respect of all such Senior Indebtedness or offer to repay in full all obligations and terminate all commitments under or in respect of all such Senior Indebtedness and repay such Senior Indebtedness owed to each holder thereof who has accepted such offer; or
(ii) obtain the requisite consents under all such Senior Indebtedness to permit the Company to repurchase the Securities in accordance herewith.
(c) To exercise a repurchase right pursuant to Section 3.1 or Section 3.2right, a the Holder shall must deliver to the Paying Agent Company, prior to the close of business on or before the Repurchase Date, (i) written notice (in the case of a repurchase pursuant to Section 3.1, a "Repurchase Notice" and, in the case of a repurchase pursuant to Section 3.2, a "Fundamental Change Repurchase Notice") of the Holder's exercise of such rightright (the "Change in Control Purchase Notice"), which notice shall set forth (A) the name of the Holder, (B) the certificate numbers of the Security with respect to which the repurchase right is being exercised, (C) the principal amount of the Securities Security to be repurchased (and, if any the Security is to be repurchased in part, the portion of the principal amount thereof to be repurchased (which portion must be in principal amounts of $1,000 or a whole multiple of $1,000repurchased) and the name of the Person in which the portion thereof to remain outstanding after such repurchase is to be registered), if certificated, the certificate numbers of the Securities to be repurchased, and (D) a statement that an election to exercise the repurchase right is being made thereby pursuant to the terms applicable provisions of the Security and conditions specified (ii) surrender the Security subject to the Change in Control Purchase Notice.
(d) If the Securities Security (or portion thereof) surrendered for repurchase shall not have been repurchased on the Business Day following the Repurchase Date, the Repurchase Price in respect of the Security shall, until paid, bear interest from the Business Day following the Repurchase Date at the rate borne by the Security and such Security shall remain convertible into Common Stock until the Indenture is being made thereby, and, Repurchase Price and any such accrued interest shall have been paid or duly provided for.
(e) Any issuance of shares of Common Stock in the event that any portion respect of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, shall be paid deemed to have been effected immediately prior to the close of business on the Repurchase Date and the person or persons in shares of Common Stock, the whose name or names (with addresses) in which the any certificate or certificates for shares of Common Stock shall be issuedissuable upon such repurchase shall be deemed to have become on the Repurchase Date the holder or holders of record of the shares represented thereby.
(f) No fractional shares of Common Stock or scrip representing fractional shares shall be issued upon repurchase of the Security. If any fractional share of stock otherwise would be issuable upon repurchase of the Security, the Company shall make an adjustment therefor by paying to the Holder thereof an amount of cash calculated at the price per share at which the Common Stock is valued for purposes of Section 7.01. ----
(g) The issue of stock certificates on repurchase of the Security shall be made without charge to the Holder for any tax in respect of the issue thereof. The Company shall not, however, be required to pay any tax that may be payable in respect of any transfer involved in the issue and delivery of stock in any name other than that of the Holder, and the Company shall not be required to issue or deliver any such stock certificate unless and until the person or persons requesting the issue thereof shall have paid to the Company the amount of such tax or shall have established to the satisfaction of the Company that such tax has been paid.
(h) Notwithstanding anything to the contrary in this Section 7.03, the ---- Company shall not be required to give the Company Notice following the occurrence of a Change in Control if, in the manner, at the time and otherwise in compliance with the requirements set forth herein regarding the Company's obligation to offer to repurchase the Security following the occurrence of a Change in Control, (A) another Person makes an offer to repurchase the Security by giving a notice containing the information set forth in clauses (i) through (v) of Section 7.03(a) to the Holder, (B) such Person repurchases the Security, and (iiC) such Person makes all payments with respect thereto. This Section 7.03(h) shall not relieve the Securities to which the Repurchase Notice or Fundamental Change Repurchase Notice relates at Company of any time after delivery of the Repurchase Notice or the Fundamental Change Repurchase Notice, as the case may be (together with all necessary endorsements), at the offices of the Paying Agent, such delivery being a condition to receipt by the Holder of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, thereofits obligations under this ------- Security; provided, however, that such Repurchase Price or Fundamental Change Repurchase Priceif another Person makes the offer to repurchase this Security as set forth in this Section, as the case may be, Company shall not be so paid pursuant obligated to this Section 3.4(b) only if give the Securities so delivered to the Paying Agent shall conform in all respects to the description thereof in the related Repurchase Notice or Fundamental Change Repurchase Company Notice. In the case of a repurchase right pursuant to Section 3.1 and Section 3.2, such delivery shall be at any time from the opening of business on the date that is 20 Business Days prior to the Repurchase Date until the close of business on the second Business Day prior to the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be, subject to extension to comply with applicable law. Owners of beneficial interests in Global Securities shall provide a Repurchase Notice or Fundamental Change Repurchase Notice in accordance with the Applicable Procedures of the Depositary.
Appears in 1 contract
Notices; Method of Exercising Repurchase Right, Etc. (a) Unless the Company shall have theretofore called for redemption all of the outstanding Outstanding Securities, the Company shall give to the Trustee, the Paying Agent and all Holders of Securities, in the manner provided in this Section 3.4, a notice containing the information required pursuant to the following provisions of this Section 3.4(a) (the "Company Notice") (i) on or before the 20th Business Day prior to the Repurchase Date or, in the event of a Fundamental Change arising from a Change of Control, the anticipated Effective Date (but in no event earlier than 45 days prior to the Repurchase Date or anticipated Effective Date, as the case may be), and (ii) within 15 Business Days 30th day after the Company knows or reasonably should know of the occurrence of a Fundamental Change that arises as a result of any Termination of Trading. Prior to or concurrently with the delivery of any Company Noticein Control, the Company will issue a press release or publish such information on the Company's then existing website including the information required to be included in such Company Notice hereunder. The Company shall also deliver a copy of any Company Notice to the Trustee. At or, at the request and expense of the Company on or before the fifth Business Day prior to the date on which the Company Notice is to be mailed30th day after such occurrence, the Trustee Trustee, shall provide give to all Holders of Securities, in the manner provided in Section 1.6 notice (the "Company Notice") of the occurrence of the Change of Control and of the repurchase right set forth herein arising as a result thereof. The Company shall also deliver a copy of such Company Notice to the Holders in accordance with the provisions of this IndentureTrustee. Each Company Notice notice of a repurchase right shall state:
(i) the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be,
(ii) the date by which the repurchase right must be exercisedexercised pursuant to Section 12.3(b),
(iii) the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, and whether the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, shall be paid by the Company in cash or by delivery of shares of Common Stock, or a specified combination thereof and the percentage of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, that will be paid in shares of Common Stock (which indication shall be irrevocable, subject to the satisfaction (or waiver) of the conditions set forth in Section 3.3),
(iv) if the notice relates to the occurrence of a Fundamental Change, the events causing the Fundamental Change and the date of the Fundamental Change,
(v) that Securities with respect to which a Holder gives a Repurchase Notice or Fundamental Change Repurchase Notice may be converted only if the Holder withdraws the Repurchase Notice or Fundamental Change Repurchase Notice as to such Securities in accordance with the terms of this Indenture,
(vi) a description of the procedure that which a Holder must follow to exercise a repurchase right, and the place or places where such Securities Securities, are to be surrendered for payment of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, and accrued but unpaid interest (and Liquidated Damages)interest, if any, to, but excluding, to the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be,
(viiv) that on the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be, the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, and accrued but and unpaid interest (and Liquidated Damages)interest, if any, to, but excluding, the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be, will become due and payable upon each such Security Securities designated by the Holder to be repurchased, and that interest thereon shall cease to accrue on and after said date,
(viiivi) the Conversion Price Rate then in effect,, the date on which the right to convert the principal amount of the Securities to be repurchased will terminate and the place or places where such Securities may be surrendered for conversion, and
(ixvii) the place or places that the Security Securities certificate (including with the Election of Holder to Require Repurchase attached thereto) and the Repurchase Notice (as defined below) specified in Section 2.2 shall be delivered, and, if the Security is a Restricted Security, the place or places that the Transfer Certificate in the form set forth in Exhibit C, required by Section 2.12 shall be delivered,
(x) the name and address of the Paying Agent and Conversion Agent, and
(xi) if the notice relates to a Fundamental Change, the estimated amount of any Make-Whole Premium and the respective percentages of such Make-Whole Premium that will be paid (as contemplated by Section 6.1(b)) in shares of Common Stock and in cash (which indication shall be irrevocable), subject to the satisfaction (or waiver) of the conditions set forth in Section 6.1(c), in the event that a Holder should, in lieu of electing to have Securities repurchased on the Fundamental Change Repurchase Date, elect to convert such Securities during the Fundamental Change Conversion Period, and
(xii) any other information to be included therein pursuant to Section 6.1. No failure of the Company to give the foregoing notices or defect therein shall limit any Holder's right to exercise a repurchase right or affect the validity of the proceedings for the repurchase of Securities. If any of the foregoing provisions or other provisions of this Article III VIII are inconsistent with applicable law, such law shall govern.
(b) To exercise a repurchase right pursuant to Section 3.1 or Section 3.2right, a Holder shall deliver to the Paying Agent Trustee on or before the 30th day after the date of the Company Notice (i) written notice (in the case of a repurchase pursuant to Section 3.1, a "Repurchase Notice" and, in the case of a repurchase pursuant to Section 3.2, a "Fundamental Change Repurchase Notice") of the Holder's exercise of such right, which notice shall set forth the name of the Holder, the principal amount of the Securities to be repurchased (and, if any Security Securities is to repurchased in part, the serial number thereof, the portion of the principal amount thereof to be repurchased (which portion must be in principal amounts of $1,000 or a whole multiple of $1,000) and the name of the Person in which the portion thereof to remain outstanding Outstanding after such repurchase is to be registered), if certificated, the certificate numbers of the Securities to be repurchased, ) and a statement that an election to exercise the repurchase right pursuant to the terms and conditions specified in the Securities and the Indenture is being made thereby, and, in the event that any portion of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, shall be paid in shares of Common Stock, the name or names (with addresses) in which the certificate or certificates for shares of Common Stock shall be issued, and (ii) the Securities with respect to which the Repurchase Notice or Fundamental Change Repurchase Notice relates at any time after delivery repurchase right is being exercised. Such written notice shall be irrevocable, except that the right of the Holder to convert the Securities with respect to which the repurchase right is being exercised shall continue until the close of business on the Repurchase Notice Date.
(c) In the event a repurchase right shall be exercised in accordance with the terms hereof, the Company shall pay or cause to be paid to the Fundamental Change Trustee the Repurchase NoticePrice in cash or shares of Common Stock, as provided above, for payment to the case may Holder on the Repurchase Date or, if shares of Common Stock are to be (paid, as promptly after the Repurchase Date as practicable, together with all necessary endorsements)accrued and unpaid interest to the Repurchase Date payable with respect to the Securities as to which the repurchase right has been exercised; provided, however, that installments of interest that mature on or prior to the Repurchase Date shall be payable in cash to the Holders of such Securities, or one or more Predecessor Securities, registered as such at the close of business on the relevant Regular Record Date. The Company covenants that, if the Repurchase Price is to be paid in cash, at least one Business Day prior to the offices of Repayment Date it will deposit with the Trustee or with a Paying Agent (or, if the Company is acting as its own Paying Agent, such delivery being a condition segregate and hold in trust as provided in Section 10.3) an amount of money sufficient to receipt by pay the Holder of principal of, and (except if the Repurchase Price Repayment Date shall be an Interest Payment Date) accrued interest on, all the Securities or the Fundamental Change Repurchase Priceportions thereof, as the case may be, to be repaid on such Repayment Date.
(d) If any Securities (or portion thereof) surrendered for repurchase shall not be so paid on the Repurchase Date, the principal amount of such Securities (or portion thereof, as the case may be) shall, until paid, bear interest to the extent permitted by applicable law from the Repurchase Date at the rate of [ ]% per annum, and each Securities shall remain convertible into Common Stock until the principal of such Securities (or portion thereof, as the case may be) shall have been paid or duly provided for.
(e) Any Securities which is to be repurchased only in part shall be surrendered to the Trustee (with, if the Company or the Trustee so requires, due endorsement by, or a written instrument of transfer in form satisfactory to the Company and the Trustee duly executed by, the Holder thereof or such Xxxxxx's attorney duly authorized in writing), and the Company shall execute, and the Trustee shall authenticate and make available for delivery to the Holder of such Securities without service charge, a new Security or Securities, containing identical terms and conditions, each in an authorized denomination in aggregate principal amount equal to and in exchange for the unrepurchased portion of the principal of the Securities so surrendered.
(f) Any issuance of shares of Common Stock in respect of the Repurchase Price shall be deemed to have been effected immediately prior to the close of business on the Repurchase Date and the Person or Persons in whose name or names any certificate or certificates for shares of Common Stock shall be issuable upon such repurchase shall be deemed to have become on the Repurchase Date the holder or holders of record of the shares represented thereby; provided, however, that any surrender for repurchase on a date when the stock transfer books of the Company shall be closed shall constitute the Person or Persons in whose name or names the certificate or certificates for such Repurchase Price or Fundamental Change Repurchase Price, shares are to be issued as the case may be, shall be so paid pursuant to this Section 3.4(b) only if the Securities so delivered to the Paying Agent shall conform in record holder or holders thereof for all respects to the description thereof in the related Repurchase Notice or Fundamental Change Repurchase Notice. In the case of a repurchase right pursuant to Section 3.1 and Section 3.2, such delivery shall be purposes at any time from the opening of business on the date that is 20 Business Days next succeeding day on which such stock transfer books are open. No payment or adjustment shall be made for dividends or distributions on any Common Stock issued upon repurchase of any Securities declared prior to the Repurchase Date Date.
(g) No fractions of shares shall be issued upon repurchase of Securities. If more than one Security shall be repurchased from the same Holder and the Repurchase Price shall be payable in shares of Common Stock, the number of full shares which shall be issuable upon such repurchase shall be computed on the basis of the aggregate principal amount of the Securities so repurchased. Instead of any fractional share of Common Stock which would otherwise be issuable on the repurchase of any Securities or Securities, the Company will deliver to the applicable Holder its check for the current market value of such fractional share. The current market value of a fraction of a share is determined by multiplying the current market price of a full share by the fraction, and rounding the result to the nearest cent. For purposes of this Section, the current market price of a share of Common Stock is the Closing Price Per Share of the Common Stock on the Trading Day immediately preceding the Repurchase Date.
(h) Any issuance and delivery of certificates for shares of Common Stock on repurchase of Securities shall be made without charge to the Holder of Securities being repurchased for such certificates or for any tax or duty in respect of the issuance or delivery of such certificates or the Securities represented thereby; provided, however, that the Company shall not be required to pay any tax or duty which may be payable in respect of (i) income of the Holder or (ii) any transfer involved in the issuance or delivery of certificates for shares of Common Stock in a name other than that of the Holder of the Securities being repurchased, and no such issuance or delivery shall be made unless and until the close of business on the second Business Day prior Person requesting such issuance or delivery has paid to the Repurchase Date Company the amount of any such tax or duty or has established, to the Fundamental Change Repurchase Date, as the case may be, subject to extension to comply with applicable law. Owners of beneficial interests in Global Securities shall provide a Repurchase Notice or Fundamental Change Repurchase Notice in accordance with the Applicable Procedures satisfaction of the DepositaryCompany, that such tax or duty has been paid.
(i) All Securities delivered for repurchase shall be delivered to the Trustee to be canceled at the direction of the Trustee, which shall dispose of the same as provided in Section 3.9.
Appears in 1 contract
Notices; Method of Exercising Repurchase Right, Etc. (a1) Unless the Company shall have theretofore called for redemption all of the outstanding Outstanding Securities, on or before the 30th day after the occurrence of a Fundamental Change, the Company or, at the request in a Company Order and expense of the Company on or before the 15th day after such occurrence, the Trustee, shall give to the Trustee, the Paying Agent and all Holders of Securities, in the manner provided in this Section 3.41.6, a notice containing the information required pursuant to the following provisions of this Section 3.4(a) (the "Fundamental Change Company Notice") (i) on or before the 20th Business Day prior to the Repurchase Date or, in the event of a Fundamental Change arising from a Change of Control, the anticipated Effective Date (but in no event earlier than 45 days prior to the Repurchase Date or anticipated Effective Date, as the case may be), and (ii) within 15 Business Days after the Company knows or reasonably should know of the occurrence of a the Fundamental Change that arises and of the repurchase right set forth herein arising as a result of any Termination of Trading. Prior to or concurrently with the delivery of any Company Notice, the Company will issue a press release or publish such information on the Company's then existing website including the information required to be included in such Company Notice hereunderthereof. The Company shall also deliver a copy of any such Fundamental Change Company Notice to the Trustee. At If such notice is to be given by the request and expense of Trustee, the Company shall deliver, on or before the fifth Business Day prior day after such occurrence, a Company Order requesting the Trustee to give such notice and setting forth all the date on which the Company Notice is information to be mailed, included in such notice including the Trustee shall provide the Company Notice to the Holders in accordance with the provisions of this Indentureinformation set forth below. Each Fundamental Change Company Notice shall state:
(i) the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be,
(ii) the date by which the repurchase right must be exercised,
(iii) the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, and whether the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, shall be paid by the Company in cash or by delivery of shares of Common Stock, or a specified combination thereof and the percentage of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, that will be paid in shares of Common Stock (which indication shall be irrevocable, subject to the satisfaction (or waiver) of the conditions set forth in Section 3.3),
(iv) if the notice relates to the occurrence of a Fundamental Change, the events causing the Fundamental Change and the date of the Fundamental Change,
(v) that Securities with respect to which a Holder gives a Repurchase Notice or Fundamental Change Repurchase Notice may be converted only if the Holder withdraws the Repurchase Notice or Fundamental Change Repurchase Notice as to such Securities in accordance with the terms of this Indenture,
(vi) a description of the procedure that a Holder must follow to exercise a repurchase right, and the place or places where such Securities are to be surrendered for payment of the Fundamental Change Repurchase Price or and accrued interest (including Additional Interest, if any), if any to the Fundamental Change Repurchase Date,
(v) that on the Fundamental Change Repurchase Date the Fundamental Change Repurchase Price, as the case may be, and accrued but unpaid interest interest, if any (and Liquidated Damages)including Additional Interest, if any), to, but excluding, the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be,
(vii) that on the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be, the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, and accrued but unpaid interest (and Liquidated Damages), if any, to, but excluding, the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be, will become due and payable upon each such Security designated by the Holder to be repurchased, and that interest thereon shall cease to accrue on and after said date,
(viiivi) the Conversion Price Rate then in effect,, the date on which the right to convert the aggregate principal amount of the Securities to be repurchased will terminate and the place or places where such Securities may be surrendered for conversion, and
(ixvii) the place or places that the Security certificate (including with the Election of Holder to Require Repurchase attached thereto) and the Repurchase Notice (as defined below) specified in Section 2.2 shall be delivered, and, if the Security is a Restricted Security, the place or places that the Transfer Certificate in the form set forth in Exhibit C, required by Section 2.12 shall be delivered,
(x) the name and address of the Paying Agent and Conversion Agent, and
(xi) if the notice relates to a Fundamental Change, the estimated amount of any Make-Whole Premium and the respective percentages of such Make-Whole Premium that will be paid (as contemplated by Section 6.1(b)) in shares of Common Stock and in cash (which indication shall be irrevocable), subject to the satisfaction (or waiver) of the conditions set forth in Section 6.1(c), in the event that a Holder should, in lieu of electing to have Securities repurchased on the Fundamental Change Repurchase Date, elect to convert such Securities during the Fundamental Change Conversion Period, and
(xii) any other information to be included therein pursuant to Section 6.1. No failure of the Company to give the foregoing notices or defect therein shall limit any Holder's right to exercise a repurchase right or affect the validity of the proceedings for the repurchase of Securities. If any of the foregoing provisions or other provisions of this Article III XIV are inconsistent with applicable law, such law shall govern.
(b2) To exercise a repurchase right pursuant to Section 3.1 or Section 3.2right, a Holder shall deliver to the Paying Agent Trustee on or before the close of business on the Business Day prior to the Fundamental Change Repurchase Date (i) written notice (in the case of a repurchase pursuant to Section 3.1, a "Repurchase Notice" and, in the case of a repurchase pursuant to Section 3.2, a "Fundamental Change Repurchase Notice") of the Holder's exercise of such right, which notice shall set forth the name of the Holder, the aggregate principal amount of the Securities to be repurchased (and, if any Security is to repurchased in part, the serial number thereof, the portion of the aggregate principal amount thereof to be repurchased (which portion must be in principal amounts of $1,000 or a whole multiple of $1,000) and the name of the Person in which the portion thereof to remain outstanding Outstanding after such repurchase is to be registered), if certificated, the certificate numbers of the Securities to be repurchased, ) and a statement that an election to exercise the repurchase right pursuant to the terms and conditions specified in the Securities and the Indenture is being made thereby, and, in the event that any portion of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, shall be paid in shares of Common Stock, the name or names (with addresses) in which the certificate or certificates for shares of Common Stock shall be issued, and (ii) the Securities with respect to which the Repurchase Notice or Fundamental Change Repurchase Notice relates at any time after delivery repurchase right is being exercised. Such written notice shall be irrevocable, except that the right of the Repurchase Notice or the Fundamental Change Repurchase Notice, as the case may be (together with all necessary endorsements), at the offices of the Paying Agent, such delivery being a condition Holder to receipt by the Holder of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, thereof; provided, however, that such Repurchase Price or Fundamental Change Repurchase Price, as the case may be, shall be so paid pursuant to this Section 3.4(b) only if convert the Securities so delivered with respect to which the Paying Agent shall conform in all respects to the description thereof in the related Repurchase Notice or Fundamental Change Repurchase Notice. In the case of a repurchase right pursuant to Section 3.1 and Section 3.2, such delivery is being exercised shall be at any time from the opening of business on the date that is 20 Business Days prior to the Repurchase Date continue until the close of business on the second Business Day prior immediately preceding the Fundamental Change Repurchase Date.
(3) In the event a repurchase right shall be exercised in accordance with the terms hereof, the Company shall pay or cause to be paid to the Trustee before 10:30 a.m. (New York City time) on the Fundamental Change Repurchase Date or the Fundamental Change Repurchase Price in cash, as provided above, for payment to the Holder on the Fundamental Change Repurchase Date, together with accrued and unpaid interest (including Additional Interest, if any) to, but excluding, the Fundamental Change Repurchase Date, payable with respect to the Securities as to which the repurchase right has been exercised; provided, however, that installments of interest that mature on or prior to the Fundamental Change Repurchase Date shall be payable in cash to the Holders of such Securities, or one or more Predecessor Securities, registered as such at the close of business on the relevant Regular Record Date.
(4) If any Security (or portion thereof) surrendered for repurchase shall not be so paid on the Fundamental Change Repurchase Date, the aggregate principal amount of such Security (or portion thereof, as the case may be), subject shall, until paid, bear interest to extension to comply with the extent permitted by applicable law. Owners of beneficial interests in Global Securities shall provide a Repurchase Notice or law from the Fundamental Change Repurchase Notice Date at the rate of 2-3/8% per annum, and each Security shall remain convertible into Common Stock until the principal of such Security (or portion thereof, as the case may be) shall have been paid or duly provided for.
(5) Any Security that is to be repurchased only in accordance part shall be surrendered to the Trustee (with, if the Company or the Trustee so requires, due endorsement by, or a written instrument of transfer in form satisfactory to the Company and the Trustee duly executed by, the Holder thereof or his attorney duly authorized in writing), and the Company shall execute, and upon its actual receipt by a Responsible Officer of a Company Order to such effect, the Trustee shall authenticate and make available for delivery to the Holder of such Security pursuant to such Company Order without service charge, a new Security or Securities, containing identical terms and conditions, each in an authorized denomination in aggregate principal amount equal to and in exchange for the unrepurchased portion of the principal of the Security so surrendered.
(6) All Securities delivered for repurchase shall be delivered to the Trustee to be canceled at the direction of the Trustee, which shall dispose of the same as provided in Section 3.9.
(7) To the extent that the aggregate amount of cash deposited by the Company pursuant to Section 14.2(3) exceeds the aggregate Fundamental Change Repurchase Price of the Securities or portions thereof which the Company is obligated to repurchase as of the Fundamental Change Repurchase Date together with accrued but unpaid interest (including Additional Interest, if any) thereon, then, unless otherwise agreed in writing with the Applicable Procedures Company, promptly after the Business Day following the Fundamental Change Repurchase Date the Trustee shall return any such excess to the Company together with interest, if any, thereon.
(8) When complying with the provisions of Section 14.1 hereof (so long as such offer or repurchase constitutes an "issuer tender offer" for purposes of Rule 13e-4 (which term, as used herein, includes any successor provision thereto) under the DepositaryExchange Act at the time of such offer or repurchase), the Company shall (i) comply in all material respects with Rule 13e-4 and Rule 14e-1 under the Exchange Act, (ii) file the related Schedule TO (or any successor schedule, form or report) under the Exchange Act and (iii) otherwise comply in all material respects with all federal and state securities laws so as to permit the rights and obligations under Section 14.1 to be exercised in the time and in the manner specified in Section 14.1.
Appears in 1 contract
Notices; Method of Exercising Repurchase Right, Etc. (a1) Unless the Company shall have theretofore called for redemption all of the outstanding Outstanding Securities, the Company shall give to the Trustee, the Paying Agent and all Holders of Securities, in the manner provided in this Section 3.4, a notice containing the information required pursuant to the following provisions of this Section 3.4(a) (the "Company Notice") (i) on or before the 20th Business Day prior to the Repurchase Date or, in the event of a Fundamental Change arising from a Change of Control, the anticipated Effective Date (but in no event earlier than 45 days prior to the Repurchase Date or anticipated Effective Date, as the case may be), and (ii) within 15 Business Days 30th day after the Company knows or reasonably should know of the occurrence of a Fundamental Change that arises as a result of any Termination of Trading. Prior to or concurrently with the delivery of any Company Noticein Control, the Company will issue a press release or publish such information on the Company's then existing website including the information required to be included in such Company Notice hereunder. The Company shall also deliver a copy of any Company Notice to the Trustee. At or, at the request and expense of the Company on or before the fifth Business Day prior 30th day after such occurrence, the Trustee, shall give to all Holders, in the manner provided in Section 1.6, notice (the "Company Notice") of the occurrence of the Change of Control and of the repurchase right set forth herein arising as a result thereof. The Company shall also deliver a copy of such notice of a repurchase right to the date on which Trustee and notify one or more nationally-recognized reporting institutions such as Bloomberg of the Company Notice is to be mailed, the Trustee shall provide the Company Notice to the Holders Change in accordance with the provisions of this IndentureControl and repurchase right. Each Company Notice notice of a repurchase right shall state:
(i) the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be,
(ii) the date by which the repurchase right must be exercised,
(iii) the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, and whether the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, shall be paid by the Company in cash or by delivery of shares of Common Stock, or a specified combination thereof and the percentage of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, that will be paid in shares of Common Stock (which indication shall be irrevocable, subject to the satisfaction (or waiver) of the conditions set forth in Section 3.3),
(iv) if the notice relates to the occurrence of a Fundamental Change, the events causing the Fundamental Change and the date of the Fundamental Change,
(v) that Securities with respect to which a Holder gives a Repurchase Notice or Fundamental Change Repurchase Notice may be converted only if the Holder withdraws the Repurchase Notice or Fundamental Change Repurchase Notice as to such Securities in accordance with the terms of this Indenture,
(vi) a description of the procedure that which a Holder must follow to exercise a repurchase right, and the place or places where such Securities are to be surrendered for payment of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, and accrued but unpaid interest (and Liquidated Damages)interest, if any, to, but excluding, any to the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be,
(viiv) that on the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be, the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, and accrued but unpaid interest (and Liquidated Damages)interest, if any, to, but excluding, any to the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be, will become due and payable upon each such Security designated by the Holder to be repurchased, and that interest thereon shall cease to accrue on and after said date,
(viiivi) the Conversion Price Rate then in effect,, the date on which the right to convert the principal amount of the Securities to be repurchased will terminate and the place or places where such Securities may be surrendered for conversion,](69) and
(ixvii) the place or places that the Security certificate (including the Notice of Election of Holder to Require Repurchase attached thereto) and the Repurchase Notice (as defined below) specified in Section 2.2 shall be delivered, and, if the Security is a Restricted Security, the place or places that the Transfer Certificate in the form set forth in Exhibit C, required by Section 2.12 shall be delivered,
(x) the name and address of the Paying Agent and Conversion Agent, and
(xi) if the notice relates to a Fundamental Change, the estimated amount of any Make-Whole Premium and the respective percentages of such Make-Whole Premium that will be paid (as contemplated by Section 6.1(b)) in shares of Common Stock and in cash (which indication shall be irrevocable), subject to the satisfaction (or waiver) of the conditions set forth in Section 6.1(c), in the event that a Holder should, in lieu of electing to have Securities repurchased on the Fundamental Change Repurchase Date, elect to convert such Securities during the Fundamental Change Conversion Period, and
(xii) any other information to be included therein pursuant to Section 6.1. No failure of the Company to give the foregoing notices or defect therein shall limit any Holder's right to exercise a repurchase right or affect the validity of the proceedings for the repurchase of Securities. If any of the foregoing provisions or other provisions of this Article III XIV are inconsistent with applicable law, such law shall govern.
(b2) To exercise a repurchase right pursuant to Section 3.1 or Section 3.2right, a Holder shall deliver to the Paying Agent Trustee on or before the 30th day after the date of the Company Notice (i) irrevocable written notice (in the case of a repurchase pursuant to Section 3.1, a "Repurchase Notice" and, in the case of a repurchase pursuant to Section 3.2, a "Fundamental Change Repurchase Notice") of the Holder's exercise of such right, which notice shall set forth the name of the Holder, the principal amount of the Securities to be repurchased (and, if any Security is to repurchased in part, the serial number thereof, the portion of the principal amount thereof to be repurchased (which portion must be in principal amounts of $1,000 or a whole multiple of $1,000) and the name of the Person in which the portion thereof to remain outstanding Outstanding after such repurchase is to be registered), if certificated, the certificate numbers of the Securities to be repurchased, ) and a statement that an election to exercise the repurchase right pursuant to the terms and conditions specified in the Securities and the Indenture is being made thereby, and, in the event that any portion of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, shall be paid in shares of Common Stock, the name or names (with addresses) in which the certificate or certificates for shares of Common Stock shall be issued, and (ii) the Securities with respect to which the Repurchase Notice or Fundamental Change Repurchase Notice relates at any time after delivery repurchase right is being exercised. Such written notice shall be irrevocable[, except that the right of the Repurchase Notice or the Fundamental Change Repurchase Notice, as the case may be (together with all necessary endorsements), at the offices of the Paying Agent, such delivery being a condition Holder to receipt by the Holder of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, thereof; provided, however, that such Repurchase Price or Fundamental Change Repurchase Price, as the case may be, shall be so paid pursuant to this Section 3.4(b) only if convert the Securities so delivered with respect to which the Paying Agent shall conform in all respects to the description thereof in the related Repurchase Notice or Fundamental Change Repurchase Notice. In the case of a repurchase right pursuant to Section 3.1 and Section 3.2, such delivery is being exercised shall be at any time from the opening of business on the date that is 20 Business Days prior to the Repurchase Date continue until the close of business on the second Business Day immediately preceding the Repurchase Date](70).
(3) In the event that a repurchase right shall be exercised in accordance with the terms hereof, the Company shall pay or cause to be paid to the Trustee the Repurchase Price in cash or shares of Common Stock, as provided above, for payment to the Holder on the Repurchase Date or, if shares of Common Stock are to be paid, as promptly after the Repurchase Date as practicable, together with accrued and unpaid interest to the Repurchase Date payable with respect to the Securities as to which the repurchase right has been exercised; provided, however, that installments of interest that mature on or prior to the Repurchase Date shall be payable in cash to the Holders of such Securities, or one or more Predecessor Securities, registered as such at the Fundamental Change close of business on the relevant Regular Record Date.
(4) If any Security (or portion thereof) surrendered for repurchase shall not be so paid on the Repurchase Date, the principal amount of such Security (or portion thereof, as the case may be) shall, subject until paid, bear interest to extension the extent permitted by applicable law from the Repurchase Date at the rate of _____% per annum[, and each Security shall remain convertible into Common Stock until the principal of such Security (or portion thereof, as the case may be) shall have been paid or duly provided for](71).
(5) Any Security which is to comply with applicable law. Owners be repurchased only in part shall be surrendered to the Trustee (with, if the Company or the Trustee so requires, due endorsement by, or a written instrument of beneficial interests transfer in Global Securities form satisfactory to the Company and the Trustee duly executed by, the Holder thereof or his attorney duly authorized in writing), and the Company shall provide execute, and the Trustee shall authenticate and make available for delivery to the Holder of such Security without service charge, a Repurchase Notice new Security or Fundamental Change Repurchase Notice Securities, containing identical terms and conditions, each in accordance with an authorized denomination in aggregate principal amount equal to and in exchange for the Applicable Procedures unrepurchased portion of the Depositaryprincipal of the Security so surrendered.
(6) Any issuance of shares of Common Stock in respect of the Repurchase Price shall be deemed to have been effected immediately prior to the close of business on the Repurchase Date and the Person or Persons in whose name or names any certificate or certificates for shares of Common Stock shall be issuable upon such repurchase shall be deemed to have become on the Repurchase Date the holder or holders of record of the shares represented thereby; provided, however, that any surrender for repurchase on a date when the stock transfer books of the ---------- (70) INSERT IF SECURITIES ARE CONVERTIBLE
Appears in 1 contract
Samples: Indenture (Sonus Networks Inc)
Notices; Method of Exercising Repurchase Right, Etc. (a) Unless the Company shall have theretofore called for redemption all of the outstanding Securities, the Company shall give to the Trustee, the Paying Agent and all Holders of Securities, in the manner provided in this Section 3.4, a notice containing the information required pursuant to the following provisions of this Section 3.4(a) (the "Company Notice") (i) on or before the 20th Business Day prior to the Repurchase Date or, in the event of a Fundamental Change arising from a Change of Control, the anticipated Effective Date (but in no event earlier than 45 days prior to the Repurchase Date or anticipated Effective Date, as the case may be), and (ii) within 15 Business Days 30th day after the Company knows or reasonably should know of the occurrence of a Fundamental Change that arises as a result of any Termination of Trading. Prior to or concurrently with the delivery of any Company NoticeDesignated Event, the Company will issue a press release or publish such information on the Company's then existing website including the information required to be included in such Company Notice hereunder. The Company shall also deliver a copy of any Company Notice to the Trustee. At or, at the request and expense of the Company on or before Company, the fifth Business Day prior Trustee, shall give to all Holders of Securities, notice (the date on which “Designated Event Notice”) of the occurrence of the Designated Event and of the repurchase right set forth herein arising as a result thereof. If the Company gives such Designated Event Notice is to be mailedHolders, the Trustee it shall provide the Company also give such Designated Event Notice to the Holders in accordance Trustee. The Trustee shall not be charged with the provisions notice or knowledge of this Indenturea Designated Event until it shall have received a copy of such Designated Event Notice. Each Designated Event Notice shall describe such Designated Event, shall state that as a result of the occurrence of such Designated Event the Holder has the right to require the Company Notice to repurchase the Holder’s Securities in whole or in part and shall state:
(i) the Repurchase Date or the Fundamental Change Designated Event Repurchase Date, as the case may be,
(ii) the date by which the repurchase right must be exercisedexercised pursuant to Section 3.14(b),
(iii) the Repurchase Price or the Fundamental Change Designated Event Repurchase Price, as the case may be, and whether the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, shall be paid by the Company in cash or by delivery of shares of Common Stock, or a specified combination thereof and the percentage of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, that will be paid in shares of Common Stock (which indication shall be irrevocable, subject to the satisfaction (or waiver) of the conditions set forth in Section 3.3),
(iv) if the notice relates to the occurrence of a Fundamental Change, the events causing the Fundamental Change and the date of the Fundamental Change,
(v) that Securities with respect to which a Holder gives a Repurchase Notice or Fundamental Change Repurchase Notice may be converted only if the Holder withdraws the Repurchase Notice or Fundamental Change Repurchase Notice as to such Securities in accordance with the terms of this Indenture,
(vi) a description of the procedure that which a Holder must follow to exercise a repurchase right, and the place or places where such Securities are to be surrendered for payment of the Repurchase Price or the Fundamental Change Designated Event Repurchase Price, as the case may be, and accrued but unpaid interest (and Liquidated Damages), if any, to, but excluding, the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be,
(viiv) that on the Designated Event Repurchase Date or the Fundamental Change Repurchase Date, as the case may be, the Designated Event Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, and accrued but unpaid interest (and Liquidated Damages), if any, to, but excluding, the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be, will become due and payable upon each such Security designated by the Holder to be repurchasedrepurchased (unless such Holder exercises its right to convert such Security pursuant to Article X of this Indenture), and that interest thereon shall cease to accrue on and after said datedate with respect to any Security designated by the Holder to be repurchased,
(viiivi) the Conversion Price Rate then in effect,, the date on which the right to convert the principal amount of the Securities to be repurchased will terminate and the place or places where such Securities may be surrendered for conversion, and
(ixvii) the place or places that the Security certificate (including the Election of Holder to Require Repurchase attached thereto) and the Repurchase Notice (as defined belownotice described in Section 3.14(b) shall be delivered, and, if the Security is a Restricted Security, the place or places that the Transfer Certificate in and the form set forth in Exhibit C, required by Section 2.12 shall be delivered,
(x) the name and address of the Paying Agent and Conversion Agent, and
(xi) if the notice relates to a Fundamental Change, the estimated amount of any Make-Whole Premium and the respective percentages of such Make-Whole Premium that will be paid (as contemplated by Section 6.1(b)) in shares of Common Stock and in cash (which indication shall be irrevocable), subject to the satisfaction (or waiver) of the conditions set forth in Section 6.1(c), in the event that a Holder should, in lieu of electing to have Securities repurchased on the Fundamental Change Repurchase Date, elect to convert such Securities during the Fundamental Change Conversion Period, and
(xii) any other information to be included therein pursuant to Section 6.1notice. No failure of the Company to give the foregoing notices or defect therein shall limit any Holder's ’s right to exercise a repurchase right or affect the validity of the proceedings for the repurchase of Securities. If any of the foregoing provisions or other provisions of this Article III are inconsistent with applicable law, such law shall govern.
(b) To exercise a repurchase right pursuant to Section 3.1 or Section 3.2following a Designated Event, a Holder shall deliver to the Trustee or any Paying Agent on or before the 30th day after the date of the Designated Event Notice (i) written notice (in the case of a repurchase pursuant to Section 3.1, a "Repurchase Notice" and, in the case of a repurchase pursuant to Section 3.2, a "Fundamental Change Repurchase Notice") of the Holder's ’s exercise of such rightright (a “Designated Event Repurchase Exercise Notice”), which notice shall set forth the name of the Holder, the principal amount certificate number of the Securities to be repurchased (and, if any Security is to repurchased in part, the portion of the principal amount thereof to be repurchased (which portion must be in principal amounts a Principal Amount of $1,000 or a whole an integral multiple of $1,000) thereof)), and the name of the Person in which the portion thereof to remain outstanding after such repurchase is to be registered), if certificated, the certificate numbers of the Securities to be repurchased, registered and a statement that an election to exercise the repurchase right pursuant to the terms and conditions specified in the Securities and the Indenture this Section 3.14(b) is being made thereby, and, thereby with respect to the Securities so specified for repurchase in the event that any portion of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, shall be paid in shares of Common Stock, the name or names (with addresses) in which the certificate or certificates for shares of Common Stock shall be issued, such notice and (ii) delivery or book-entry transfer of the Securities to which the Repurchase Notice or Fundamental Change Repurchase Notice relates Paying Agent at any time after delivery of the Repurchase applicable Designated Event Notice or the Fundamental Change Repurchase Notice, as the case may be (together with all necessary endorsements), ) at the offices office of the Paying Agent, such delivery being a condition to receipt by the Holder of the Designated Event Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, thereoftherefor; provided, however, provided that such Designated Event Repurchase Price or Fundamental Change Repurchase Price, as the case may be, shall be so paid pursuant to this Section 3.4(b) 3.14 only if the Securities Security so delivered to the Paying Agent shall conform in all respects to the description thereof in the related Designated Event Repurchase Notice or Fundamental Change Repurchase Exercise Notice. In Securities in respect of which a Designated Event Repurchase Exercise Notice has been given by the case Holder thereof may not be converted pursuant to Article X hereof on or after the date of the delivery of such Designated Event Repurchase Exercise Notice unless such Designated Event Repurchase Exercise Notice has first been validly withdrawn. A Designated Event Repurchase Exercise Notice may be withdrawn by means of a repurchase right pursuant written notice of withdrawal delivered to Section 3.1 and Section 3.2, such delivery shall be the office of the Paying Agent at any time from the opening of business on the date that is 20 Business Days prior to the Repurchase Date until the close of business on the Business Day immediately preceding the Designated Event Repurchase Date, specifying:
(1) the certificate number, if any, of the Security in respect of which such notice of withdrawal is being submitted, or the appropriate Depositary information if the Security in respect of which such notice of withdrawal is being submitted is represented by a Global Security,
(2) the Principal Amount of the Security with respect to which such notice of withdrawal is being submitted, and
(3) the Principal Amount, if any, of such Security which remains subject to the original Designated Event Repurchase Exercise Notice and which has been or will be delivered for purchase by the Company. The Paying Agent shall promptly notify the Company of the receipt by it of any Designated Event Repurchase Exercise Notice or written notice of withdrawal thereof.
(c) If the Holder of a Security exercises a repurchase right in accordance with this Section, the Company shall, prior to 10:00 a.m. (New York City time) on the Business Day following the Designated Event Repurchase Date, deposit with the Paying Agent (or, if the Company or a Subsidiary or an Affiliate of either of them is acting as the Paying Agent, shall segregate and hold in trust as provided in Section 2.04) the Designated Event Repurchase Price in cash (in immediately available funds if deposited on such Business Day) for payment to such Holder together with accrued and unpaid interest, if any, to but excluding the Designated Event Repurchase Date payable with respect to the Securities as to which such Holder has exercised the repurchase right; provided, however, that installments of interest due on or prior to the Designated Event Repurchase Date shall be payable in cash to the Holders of such Securities, or one or more Predecessor Securities, registered as such at the close of business on the relevant Regular Record Date, in each case according to the terms and provisions of Article XI of this Indenture.
(d) If any Security (or portion thereof) surrendered for repurchase shall not be so paid prior to 10:00 a.m. (New York City time) on the second Business Day prior to following the Repurchase Date or the Fundamental Change Designated Event Repurchase Date, the principal amount of such Security (or portion thereof, as the case may be) shall, subject until paid, bear interest to extension the extent permitted by applicable law from the first Business Day following the Designated Event Repurchase Date at the rate of 3.25% per annum.
(e) With respect to comply any Security which is to be repurchased only in part, the Trustee shall authenticate and make available for delivery to the Holder of such Security without service charge, a new Security or Securities, containing identical terms and conditions, each in an authorized denomination in aggregate principal amount equal to and in exchange for the unrepurchased portion of the principal of the Security so surrendered.
(f) Any purchase by the Company contemplated pursuant to the provisions of this Section shall be consummated by the delivery of the consideration to be received by the Holder promptly following the later of (i) the Designated Event Repurchase Date and (ii) the time of the book-entry transfer or delivery of the Security.
(g) Subject to Section 8.02, the Paying Agent shall return to the Company any cash that remains unclaimed, together with applicable law. Owners interest, if any, thereon, held by it for the payment of beneficial interests the Designated Event Repurchase Price; provided that to the extent that the aggregate amount of cash deposited by the Company pursuant to Section 3.14(c) exceeds the aggregate Designated Event Repurchase Price of, plus accrued interest, if any, to but excluding the Designated Event Repurchase Date payable with respect to, the Securities or portions thereof which the Company is obligated to purchase as of the Designated Event Repurchase Date then, unless otherwise agreed in Global Securities shall provide a Repurchase Notice or Fundamental Change Repurchase Notice in accordance writing with the Applicable Procedures of Company, promptly after the DepositaryBusiness Day following the Designated Event Repurchase Date, the Paying Agent shall return any such excess to the Company together with interest, if any, thereon.
Appears in 1 contract
Notices; Method of Exercising Repurchase Right, Etc. (a1) Unless the Company shall have theretofore called for redemption all of the outstanding Outstanding Securities, the Company shall give to the Trustee, the Paying Agent and all Holders of Securities, in the manner provided in this Section 3.4, a notice containing the information required pursuant to the following provisions of this Section 3.4(a) (the "Company Notice") (i) on or before the 20th Business Day prior to the Repurchase Date or, in the event of a Fundamental Change arising from a Change of Control, the anticipated Effective Date (but in no event earlier than 45 days prior to the Repurchase Date or anticipated Effective Date, as the case may be), and (ii) within 15 Business Days 30th day after the Company knows or reasonably should know of the occurrence of a Fundamental Change that arises as a result of any Termination of Trading. Prior to or concurrently with the delivery of any Company Noticein Control, the Company will issue a press release or publish such information on the Company's then existing website including the information required to be included in such Company Notice hereunder. The Company shall also deliver a copy of any Company Notice to the Trustee. At or, at the request and expense of the Company on or before the fifth Business Day prior 15th day after such occurrence, the Trustee, shall give to all Holders of Securities, in the manner provided in Section 1.6, notice (the "Company Notice") of the occurrence of the Change of Control and of the repurchase right set forth herein arising as a result thereof. The Company shall also deliver a copy of such notice of a repurchase right to the date on which the Company Notice is to be mailed, the Trustee shall provide the Company Notice to the Holders in accordance with the provisions of this IndentureTrustee. Each Company Notice notice of a repurchase right shall state:
(i) the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be,
(ii) the date by which the repurchase right must be exercised,
(iii) the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, and whether the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, shall be paid by the Company in cash or by delivery of shares of Common Stock, or a specified combination thereof and the percentage of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, that will be paid in shares of Common Stock (which indication shall be irrevocable, subject to the satisfaction (or waiver) of the conditions set forth in Section 3.3),
(iv) if the notice relates to the occurrence of a Fundamental Change, the events causing the Fundamental Change and the date of the Fundamental Change,
(v) that Securities with respect to which a Holder gives a Repurchase Notice or Fundamental Change Repurchase Notice may be converted only if the Holder withdraws the Repurchase Notice or Fundamental Change Repurchase Notice as to such Securities in accordance with the terms of this Indenture,
(vi) a description of the procedure that which a Holder must follow to exercise a repurchase right, and the place or places where such Securities are to be surrendered for payment of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, and accrued but unpaid interest (and Liquidated Damages)interest, if any, to, but excluding, any to the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be,
(viiv) that on the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be, the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, and accrued but unpaid interest (and Liquidated Damages)interest, if any, to, but excluding, any to the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be, will become due and payable upon each such Security designated by the Holder to be repurchased, and that interest thereon shall cease to accrue on and after said date,
(viiivi) the Conversion Price Rate then in effect,, the date on which the right to convert the principal amount of the Securities to be repurchased will terminate and the place or places where such Securities may be surrendered for conversion, and
(ixvii) the place or places that the Security certificate (including with the Election of Holder to Require Repurchase attached thereto) and the Repurchase Notice (as defined below) specified in Section 2.2 shall be delivered, and, if the Security is a Restricted Security, the place or places that the Transfer Certificate in the form set forth in Exhibit C, required by Section 2.12 shall be delivered,
(x) the name and address of the Paying Agent and Conversion Agent, and
(xi) if the notice relates to a Fundamental Change, the estimated amount of any Make-Whole Premium and the respective percentages of such Make-Whole Premium that will be paid (as contemplated by Section 6.1(b)) in shares of Common Stock and in cash (which indication shall be irrevocable), subject to the satisfaction (or waiver) of the conditions set forth in Section 6.1(c), in the event that a Holder should, in lieu of electing to have Securities repurchased on the Fundamental Change Repurchase Date, elect to convert such Securities during the Fundamental Change Conversion Period, and
(xii) any other information to be included therein pursuant to Section 6.1. No failure of the Company to give the foregoing notices or defect therein shall limit any Holder's ' s right to exercise a repurchase right or affect the validity of the proceedings for the repurchase of Securities. If any of the foregoing provisions or other provisions of this Article III XIV are inconsistent with applicable law, such law shall govern.
(b2) To exercise a repurchase right pursuant to Section 3.1 or Section 3.2right, a Holder shall deliver to the Paying Agent Trustee on or before the 30th day after the date of the Company Notice (i) irrevocable written notice (in the case of a repurchase pursuant to Section 3.1, a "Repurchase Notice" and, in the case of a repurchase pursuant to Section 3.2, a "Fundamental Change Repurchase Notice") of the Holder's exercise of such right, which notice shall set forth the name of the Holder, the principal amount of the Securities to be repurchased (and, if any Security is to repurchased in part, the serial number thereof, the portion of the principal amount thereof to be repurchased (which portion must be in principal amounts of $1,000 or a whole multiple of $1,000) and the name of the Person in which the portion thereof to remain outstanding Outstanding after such repurchase is to be registered), if certificated, the certificate numbers of the Securities to be repurchased, ) and a statement that an election to exercise the repurchase right pursuant to the terms and conditions specified in the Securities and the Indenture is being made thereby, and, in the event that any portion of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, shall be paid in shares of Common Stock, the name or names (with addresses) in which the certificate or certificates for shares of Common Stock shall be issued, and (ii) the Securities with respect to which the Repurchase Notice or Fundamental Change Repurchase Notice relates at any time after delivery repurchase right is being exercised. Such written notice shall be irrevocable, except that the right of the Repurchase Notice or the Fundamental Change Repurchase Notice, as the case may be (together with all necessary endorsements), at the offices of the Paying Agent, such delivery being a condition Holder to receipt by the Holder of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, thereof; provided, however, that such Repurchase Price or Fundamental Change Repurchase Price, as the case may be, shall be so paid pursuant to this Section 3.4(b) only if convert the Securities so delivered with respect to which the Paying Agent shall conform in all respects to the description thereof in the related Repurchase Notice or Fundamental Change Repurchase Notice. In the case of a repurchase right pursuant to Section 3.1 and Section 3.2, such delivery is being exercised shall be at any time from the opening of business on the date that is 20 Business Days prior to the Repurchase Date continue until the close of business on the second Business Day Repurchase Date.
(3) In the event a repurchase right shall be exercised in accordance with the terms hereof, the Company shall pay or cause to be paid to the Trustee the Repurchase Price in cash or shares of Common Stock, as provided above, for payment to the Holder on the Repurchase Date or, if shares of Common Stock are to be paid, as promptly after the Repurchase Date as practicable, together with accrued and unpaid interest to the Repurchase Date payable with respect to the Securities as to which the repurchase right has been exercised; provided, however, that installments of interest that mature on or prior to the Repurchase Date shall be payable in cash to the Holders of such Securities, or one or more Predecessor Securities, registered as such at the Fundamental Change close of business on the relevant Regular Record Date.
(4) If any Security (or portion thereof) surrendered for repurchase shall not be so paid on the Repurchase Date, the principal amount of such Security (or portion thereof, as the case may be) shall, subject until paid, bear interest to extension the extent permitted by applicable law from the Repurchase Date at the rate of 5% per annum, and each Security shall remain convertible into Common Stock until the principal of such Security (or portion thereof, as the case may be) shall have been paid or duly provided for.
(5) Any Security which is to comply with be repurchased only in part shall be surrendered to the Trustee (with, if the Company or the Trustee so requires, due endorsement by, or a written instrument of transfer in form satisfactory to the Company and the Trustee duly executed by, the Holder thereof or his attorney duly authorized in writing), and the Company shall execute, and the Trustee shall authenticate and make available for delivery to the Holder of such Security without service charge, a new Security or Securities, containing identical terms and conditions, each in an authorized denomination in aggregate principal amount equal to and in exchange for the unrepurchased portion of the principal of the Security so surrendered.
(6) Any issuance of shares of Common Stock in respect of the Repurchase Price shall be deemed to have been effected immediately prior to the close of business on the Repurchase Date and the Person or Persons in whose name or names any certificate or certificates for shares of Common Stock shall be issuable upon such repurchase shall be deemed to have become on the Repurchase Date the holder or holders of record of the shares represented thereby; provided, however, that any surrender for repurchase on a date when the stock transfer books of the Company shall be closed shall constitute the Person or Persons in whose name or names the certificate or certificates for such shares are to be issued as the record holder or holders thereof for all purposes at the opening of business on the next succeeding day on which such stock transfer books are open. No payment or adjustment shall be made for dividends or distributions on any Common Stock issued upon repurchase of any Security declared prior to the Repurchase Date.
(7) No fractions of shares shall be issued upon repurchase of Securities. If more than one Security shall be repurchased from the same Holder and the Repurchase Price shall be payable in shares of Common Stock, the number of full shares which shall be issuable upon such repurchase shall be computed on the basis of the aggregate principal amount of the Securities so repurchased. Instead of any fractional share of Common Stock which would otherwise be issuable on the repurchase of any Security or Securities, the Company will deliver to the applicable lawHolder its check for the current market value of such fractional share. Owners The current market value of beneficial interests in Global a fraction of a share is determined by multiplying the current market price of a full share by the fraction, and rounding the result to the nearest cent. For purposes of this Section, the current market price of a share of Common Stock is the Closing Price Per Share of the Common Stock on the Trading Day immediately preceding the Repurchase Date.
(8) Any issuance and delivery of certificates for shares of Common Stock on repurchase of Securities shall provide a Repurchase Notice be made without charge to the Holder of Securities being repurchased for such certificates or Fundamental Change Repurchase Notice for any tax or duty in accordance with the Applicable Procedures respect of the Depositaryissuance or delivery of such certificates or the securities represented thereby; provided, however, that the Company shall not be required to pay any tax or duty which may be payable in respect of (i) income of the Holder or (ii) any transfer involved in the issuance or delivery of certificates for shares of Common Stock in a name other than that of the Holder of the Securities being repurchased, and no such issuance or delivery shall be made unless and until the Person requesting such issuance or delivery has paid to the Company the amount of any such tax or duty or has established, to the satisfaction of the Company, that such tax or duty has been paid.
(9) All Securities delivered for repurchase shall be delivered to the Trustee to be canceled at the direction of the Trustee, which shall dispose of the same as provided in Section 3.9.
Appears in 1 contract
Samples: Indenture (Oni Systems Corp)
Notices; Method of Exercising Repurchase Right, Etc. (a1) Unless the Company shall have theretofore called for redemption all of the outstanding Outstanding Securities, on or before the 30th day after the occurrence of a Change in Control, the Company or, at the request and expense of the Company on or before the 15th day after such occurrence, the Trustee, shall give to the Trustee, the Paying Agent and all Holders of Securities, in the manner provided in this Section 3.41.6, a notice containing the information required pursuant to the following provisions of this Section 3.4(a) (the "Company Notice") (i) on or before the 20th Business Day prior to the Repurchase Date or, in the event of a Fundamental Change arising from a Change of Control, the anticipated Effective Date (but in no event earlier than 45 days prior to the Repurchase Date or anticipated Effective Date, as the case may be), and (ii) within 15 Business Days after the Company knows or reasonably should know of the occurrence of a Fundamental the Change that arises of Control and of the repurchase right set forth herein arising as a result of any Termination of Trading. Prior to or concurrently with the delivery of any Company Notice, thereof and the Company will shall issue a press release or publish such information on the Company's then existing website Press Release including the information required to be included in such Company Notice hereunder. The Company shall also deliver a copy of any such Company Notice to the Trustee. At the request and expense of the Company on or before the fifth Business Day prior to the date on which the Company Notice is to be mailed, the Trustee shall provide the Company Notice to the Holders in accordance with the provisions of this Indenture. Each Company Notice shall state:
(i) the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be,
(ii) the date by which the repurchase right must be exercised,
(iii) the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, and whether the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, shall be paid by the Company in cash or by delivery of shares of Common Stock, or a specified combination thereof and the percentage of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, that will be paid in shares of Common Stock (which indication shall be irrevocable, subject to the satisfaction (or waiver) of the conditions set forth in Section 3.3),
(iv) if the notice relates to the occurrence of a Fundamental Change, the events causing the Fundamental Change and the date of the Fundamental Change,
(v) that Securities with respect to which a Holder gives a Repurchase Notice or Fundamental Change Repurchase Notice may be converted only if the Holder withdraws the Repurchase Notice or Fundamental Change Repurchase Notice as to such Securities in accordance with the terms of this Indenture,
(vi) a description of the procedure that a Holder must follow to exercise a repurchase right, and the place or places where such Securities are to be surrendered for payment of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, and accrued but unpaid interest (and including Liquidated Damages, if any), if any, to, but excluding, any to the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be,
(viiv) that on the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be, the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, and accrued but unpaid interest (and including Liquidated Damages, if any), if any, to, but excluding, to the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be, will become due and payable upon each such Security designated by the Holder to be repurchased, and that interest thereon shall cease to accrue on and after said date,
(viiivi) the Conversion Price Rate then in effect,, the date on which the right to convert the principal amount of the Securities to be repurchased will terminate and the place or places where such Securities may be surrendered for conversion, and
(ixvii) the place or places that the Security certificate (including with the Election of Holder to Require Repurchase attached thereto) and the Repurchase Notice (as defined below) specified in Section 2.2 shall be delivered, and, and if the Security is a Restricted Security, Securities Certificate the place or places that the Transfer Surrender Certificate in the form set forth in Exhibit C, required by Section 2.12 14.3(9) shall be delivered,
(x) the name and address of the Paying Agent and Conversion Agent, and
(xi) if the notice relates to a Fundamental Change, the estimated amount of any Make-Whole Premium and the respective percentages of such Make-Whole Premium that will be paid (as contemplated by Section 6.1(b)) in shares of Common Stock and in cash (which indication shall be irrevocable), subject to the satisfaction (or waiver) of the conditions set forth in Section 6.1(c), in the event that a Holder should, in lieu of electing to have Securities repurchased on the Fundamental Change Repurchase Date, elect to convert such Securities during the Fundamental Change Conversion Period, and
(xii) any other information to be included therein pursuant to Section 6.1. No failure of the Company to give the foregoing notices or defect therein shall limit any Holder's ' s right to exercise a repurchase right or affect the validity of the proceedings for the repurchase of Securities. If any of the foregoing provisions or other provisions of this Article III XIV are inconsistent with applicable law, such law shall govern.
(b) To exercise a repurchase right pursuant to Section 3.1 or Section 3.2, a Holder shall deliver to the Paying Agent (i) written notice (in the case of a repurchase pursuant to Section 3.1, a "Repurchase Notice" and, in the case of a repurchase pursuant to Section 3.2, a "Fundamental Change Repurchase Notice") of the Holder's exercise of such right, which notice shall set forth the name of the Holder, the principal amount of the Securities to be repurchased (and, if any Security is to repurchased in part, the portion of the principal amount thereof to be repurchased (which portion must be in principal amounts of $1,000 or a whole multiple of $1,000) and the name of the Person in which the portion thereof to remain outstanding after such repurchase is to be registered), if certificated, the certificate numbers of the Securities to be repurchased, and a statement that an election to exercise the repurchase right pursuant to the terms and conditions specified in the Securities and the Indenture is being made thereby, and, in the event that any portion of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, shall be paid in shares of Common Stock, the name or names (with addresses) in which the certificate or certificates for shares of Common Stock shall be issued, and (ii) the Securities to which the Repurchase Notice or Fundamental Change Repurchase Notice relates at any time after delivery of the Repurchase Notice or the Fundamental Change Repurchase Notice, as the case may be (together with all necessary endorsements), at the offices of the Paying Agent, such delivery being a condition to receipt by the Holder of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, thereof; provided, however, that such Repurchase Price or Fundamental Change Repurchase Price, as the case may be, shall be so paid pursuant to this Section 3.4(b) only if the Securities so delivered to the Paying Agent shall conform in all respects to the description thereof in the related Repurchase Notice or Fundamental Change Repurchase Notice. In the case of a repurchase right pursuant to Section 3.1 and Section 3.2, such delivery shall be at any time from the opening of business on the date that is 20 Business Days prior to the Repurchase Date until the close of business on the second Business Day prior to the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be, subject to extension to comply with applicable law. Owners of beneficial interests in Global Securities shall provide a Repurchase Notice or Fundamental Change Repurchase Notice in accordance with the Applicable Procedures of the Depositary.
Appears in 1 contract
Notices; Method of Exercising Repurchase Right, Etc. (a) Unless the Company shall have theretofore called for redemption all of the outstanding SecuritiesOutstanding Notes, within 20 days after the occurrence of a Change in Control, the Company, or, at the written request and expense of the Company within 20 days after such occurrence, the Trustee, shall give to the Trustee, the Paying Agent and all Holders of SecuritiesNotes notice, in the manner provided in this Section 3.414.2 hereof, of the occurrence of the Change of Control and of the Repurchase Right set forth herein arising as a notice containing the information required pursuant to the following provisions of this Section 3.4(a) result thereof (the "Company Notice") (i) on or before the 20th Business Day prior to the Repurchase Date or, in the event of a Fundamental Change arising from a Change of Control, the anticipated Effective Date (but in no event earlier than 45 days prior to the Repurchase Date or anticipated Effective Date, as the case may be), and (ii) within 15 Business Days after the Company knows or reasonably should know of the occurrence of a Fundamental Change that arises as a result of any Termination of Trading. Prior to or concurrently with the delivery of any Company Notice, the Company will issue a press release or publish such information on the Company's then existing website including the information required to be included in such Company Notice hereunder. The Company shall also deliver a copy of any Company Notice such notice of a Repurchase Right to the Trustee. At the request and expense Each notice of the Company on or before the fifth Business Day prior to the date on which the Company Notice is to be mailed, the Trustee shall provide the Company Notice to the Holders in accordance with the provisions of this Indenture. Each Company Notice a Repurchase Right shall state:
(i1) the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be,;
(ii2) the date by which the repurchase right Repurchase Right must be exercised,;
(iii3) the Repurchase Price or the Fundamental Change Repurchase Priceand accrued and unpaid interest, as the case may be, and whether the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, shall be paid by the Company in cash or by delivery of shares of Common Stock, or a specified combination thereof and the percentage of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, that will be paid in shares of Common Stock (which indication shall be irrevocable, subject to the satisfaction (or waiver) of the conditions set forth in Section 3.3),if any;
(iv) if the notice relates to the occurrence of a Fundamental Change, the events causing the Fundamental Change and the date of the Fundamental Change,
(v) that Securities with respect to which a Holder gives a Repurchase Notice or Fundamental Change Repurchase Notice may be converted only if the Holder withdraws the Repurchase Notice or Fundamental Change Repurchase Notice as to such Securities in accordance with the terms of this Indenture,
(vi4) a description of the procedure that which a Holder must follow to exercise a repurchase rightRepurchase Right, and the place or places where such Securities Notes are to be surrendered for payment of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, accrued and accrued but unpaid interest (and Liquidated Damages), if any, to, but excluding, the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be,;
(vii5) that on the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be, the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, accrued and accrued but unpaid interest (and Liquidated Damages), if any, to, but excluding, the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be, will become due and payable upon each such Security Note designated by the Holder to be repurchased, and that interest thereon shall cease to accrue on and after said date;
(6) the Conversion Rate then in effect, the date on which the right to convert Notes terminates and that accrued and unpaid interest on the Notes is forfeited upon conversion;
(7) the amount of the Notes to be repurchased will terminate and the place where such Notes may be surrendered for conversion,
(viii) 8) if applicable, that no Holder shall have a Repurchase Right upon a Change of Control unless prior to any payment of the Conversion Repurchase Price then on the Repurchase Date the Company has made any applicable change of control offers required by the Company's Senior Debt and has purchased all Senior Debt validly tendered for payment in effect,connection with such change of control offers, and
(ix9) the place or places that where such Notes, together with the Security Option to Elect Repayment Upon a Change of Control certificate (including the Election included in Exhibit A annexed hereto are to be delivered for payment of Holder to Require Repurchase attached thereto) and the Repurchase Notice (as defined below) shall be delivered, andPrice and accrued and unpaid interest, if the Security is a Restricted Security, the place or places that the Transfer Certificate in the form set forth in Exhibit C, required by Section 2.12 shall be delivered,
(x) the name and address of the Paying Agent and Conversion Agent, and
(xi) if the notice relates to a Fundamental Change, the estimated amount of any Make-Whole Premium and the respective percentages of such Make-Whole Premium that will be paid (as contemplated by Section 6.1(b)) in shares of Common Stock and in cash (which indication shall be irrevocable), subject to the satisfaction (or waiver) of the conditions set forth in Section 6.1(c), in the event that a Holder should, in lieu of electing to have Securities repurchased on the Fundamental Change Repurchase Date, elect to convert such Securities during the Fundamental Change Conversion Period, and
(xii) any other information to be included therein pursuant to Section 6.1any. No failure of the Company to give the foregoing notices or defect therein shall limit any Holder's right to exercise a repurchase right Repurchase Right or affect the validity of the proceedings for the repurchase of SecuritiesNotes. If any of the foregoing provisions or other provisions of this Article III 11 are inconsistent with applicable law, such law shall govern.
(b) To exercise a repurchase right pursuant to Section 3.1 or Section 3.2, a Holder shall deliver to the Paying Agent (i) written notice (in the case of a repurchase pursuant to Section 3.1, a "Repurchase Notice" and, in the case of a repurchase pursuant to Section 3.2, a "Fundamental Change Repurchase Notice") of the Holder's exercise of such right, which notice shall set forth the name of the Holder, the principal amount of the Securities to be repurchased (and, if any Security is to repurchased in part, the portion of the principal amount thereof to be repurchased (which portion must be in principal amounts of $1,000 or a whole multiple of $1,000) and the name of the Person in which the portion thereof to remain outstanding after such repurchase is to be registered), if certificated, the certificate numbers of the Securities to be repurchased, and a statement that an election to exercise the repurchase right pursuant to the terms and conditions specified in the Securities and the Indenture is being made thereby, and, in the event that any portion of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, shall be paid in shares of Common Stock, the name or names (with addresses) in which the certificate or certificates for shares of Common Stock shall be issued, and (ii) the Securities to which the Repurchase Notice or Fundamental Change Repurchase Notice relates at any time after delivery of the Repurchase Notice or the Fundamental Change Repurchase Notice, as the case may be (together with all necessary endorsements), at the offices of the Paying Agent, such delivery being a condition to receipt by the Holder of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, thereof; provided, however, that such Repurchase Price or Fundamental Change Repurchase Price, as the case may be, shall be so paid pursuant to this Section 3.4(b) only if the Securities so delivered to the Paying Agent shall conform in all respects to the description thereof in the related Repurchase Notice or Fundamental Change Repurchase Notice. In the case of a repurchase right pursuant to Section 3.1 and Section 3.2, such delivery shall be at any time from the opening of business on the date that is 20 Business Days prior to the Repurchase Date until the close of business on the second Business Day prior to the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be, subject to extension to comply with applicable law. Owners of beneficial interests in Global Securities shall provide a Repurchase Notice or Fundamental Change Repurchase Notice in accordance with the Applicable Procedures of the Depositary.
Appears in 1 contract
Samples: Indenture (Radisys Corp)
Notices; Method of Exercising Repurchase Right, Etc. (a) Unless the Company shall have theretofore called for redemption all of the outstanding SecuritiesNotes, the Company shall give to the Trustee, the Paying Agent and all Holders of Securities, in the manner provided in this Section 3.4, a notice containing the information required pursuant to the following provisions of this Section 3.4(a) (the "Company Notice") (i) on or before the 20th Business Day prior to the Repurchase Date or, in the event of a Fundamental Change arising from a Change of Control, the anticipated Effective Date (but in no event earlier than 45 days prior to the Repurchase Date or anticipated Effective Date, as the case may be), and (ii) within 15 Business Days 30th day after the Company knows or reasonably should know of the occurrence of a Fundamental Change that arises as a result of any Termination of Trading. Prior to or concurrently with the delivery of any Company NoticeDesignated Event, the Company will issue a press release or publish such information on the Company's then existing website including the information required to be included in such Company Notice hereunder. The Company shall also deliver a copy of any Company Notice to the Trustee. At or, at the request and expense of the Company on or before Company, the fifth Business Day prior Trustee, shall give to all Holders of Notes, notice (the date on which “Designated Event Notice”) of the occurrence of the Designated Event and of the repurchase right set forth herein arising as a result thereof. If the Company gives such Designated Event Notice is to be mailedHolders, the Trustee it shall provide the Company also give such Designated Event Notice to the Holders in accordance with the provisions of this IndentureTrustee. Each Company Designated Event Notice shall describe such Designated Event, shall state that as a result of the occurrence of such Designated Event the Holder has the right to require the Company to repurchase the Holder’s Notes in whole or in part and shall state:
(i) : the Repurchase Date or the Fundamental Change Designated Event Repurchase Date, as the case may be,
(ii) the date by which the repurchase right must be exercised,
(iii) exercised pursuant to Section 3.15(b), the Repurchase Price or the Fundamental Change Designated Event Repurchase Price, as the case may be, and whether the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, shall be paid by the Company in cash or by delivery of shares of Common Stock, or a specified combination thereof and the percentage of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, that will be paid in shares of Common Stock (which indication shall be irrevocable, subject to the satisfaction (or waiver) of the conditions set forth in Section 3.3),
(iv) if the notice relates to the occurrence of a Fundamental Change, the events causing the Fundamental Change and the date of the Fundamental Change,
(v) that Securities with respect to which a Holder gives a Repurchase Notice or Fundamental Change Repurchase Notice may be converted only if the Holder withdraws the Repurchase Notice or Fundamental Change Repurchase Notice as to such Securities in accordance with the terms of this Indenture,
(vi) a description of the procedure that which a Holder must follow to exercise a repurchase right, and the place or places where such Securities Notes are to be surrendered for payment of the Designated Event Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, and accrued but and unpaid interest (and Liquidated Damages)interest, if any, to, but excluding, the Repurchase Date or the Fundamental Change Designated Event Repurchase Date, as the case may be,
(vii) that on the Designated Event Repurchase Date or the Fundamental Change Repurchase Date, as the case may be, the Repurchase Price or the Fundamental Change Designated Event Repurchase Price, as the case may be, and accrued but and unpaid interest (and Liquidated Damages)interest, if any, to, but excluding, the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be, will become due and payable upon each such Security Note designated by the Holder to be repurchasedrepurchased (unless such Holder exercises its right to convert such Note pursuant to Article X of this Indenture), and that interest thereon shall cease to accrue on and after said date,
(viii) date with respect to any Note designated by the Holder to be repurchased, the Conversion Price then in effect,
(ix) , the date on which the right to convert the principal amount of the Notes to be repurchased will terminate and the place or places where such Notes may be surrendered for conversion, and the place or places that the Security certificate (including the Election of Holder to Require Repurchase attached thereto) and the Repurchase Notice (as defined belownotice described in Section 3.15(b) shall be delivered, and, if the Security is a Restricted Security, the place or places that the Transfer Certificate in and the form set forth in Exhibit C, required by Section 2.12 shall be delivered,
(x) the name and address of the Paying Agent and Conversion Agent, and
(xi) if the notice relates to a Fundamental Change, the estimated amount of any Make-Whole Premium and the respective percentages of such Make-Whole Premium that will be paid (as contemplated by Section 6.1(b)) in shares of Common Stock and in cash (which indication shall be irrevocable), subject to the satisfaction (or waiver) of the conditions set forth in Section 6.1(c), in the event that a Holder should, in lieu of electing to have Securities repurchased on the Fundamental Change Repurchase Date, elect to convert such Securities during the Fundamental Change Conversion Period, and
(xii) any other information to be included therein pursuant to Section 6.1notice. No failure of the Company to give the foregoing notices or defect therein shall limit any Holder's ’s right to exercise a repurchase right or affect the validity of the proceedings for the repurchase of SecuritiesNotes. If any of the foregoing provisions or other provisions of this Article III are inconsistent with applicable law, such law shall govern.
(b) To exercise a repurchase right pursuant to Section 3.1 or Section 3.2, a Holder shall deliver to the Paying Agent (i) written notice (in the case of a repurchase pursuant to Section 3.1, a "Repurchase Notice" and, in the case of a repurchase pursuant to Section 3.2, a "Fundamental Change Repurchase Notice") of the Holder's exercise of such right, which notice shall set forth the name of the Holder, the principal amount of the Securities to be repurchased (and, if any Security is to repurchased in part, the portion of the principal amount thereof to be repurchased (which portion must be in principal amounts of $1,000 or a whole multiple of $1,000) and the name of the Person in which the portion thereof to remain outstanding after such repurchase is to be registered), if certificated, the certificate numbers of the Securities to be repurchased, and a statement that an election to exercise the repurchase right pursuant to the terms and conditions specified in the Securities and the Indenture is being made thereby, and, in the event that any portion of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, shall be paid in shares of Common Stock, the name or names (with addresses) in which the certificate or certificates for shares of Common Stock shall be issued, and (ii) the Securities to which the Repurchase Notice or Fundamental Change Repurchase Notice relates at any time after delivery of the Repurchase Notice or the Fundamental Change Repurchase Notice, as the case may be (together with all necessary endorsements), at the offices of the Paying Agent, such delivery being a condition to receipt by the Holder of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, thereof; provided, however, that such Repurchase Price or Fundamental Change Repurchase Price, as the case may be, shall be so paid pursuant to this Section 3.4(b) only if the Securities so delivered to the Paying Agent shall conform in all respects to the description thereof in the related Repurchase Notice or Fundamental Change Repurchase Notice. In the case of a repurchase right pursuant to Section 3.1 and Section 3.2, such delivery shall be at any time from the opening of business on the date that is 20 Business Days prior to the Repurchase Date until the close of business on the second Business Day prior to the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be, subject to extension to comply with applicable law. Owners of beneficial interests in Global Securities shall provide a Repurchase Notice or Fundamental Change Repurchase Notice in accordance with the Applicable Procedures of the Depositary.
Appears in 1 contract
Samples: Indenture (Expressjet Holdings Inc)
Notices; Method of Exercising Repurchase Right, Etc. (a) Unless the Company shall have theretofore called for redemption all of the outstanding Outstanding Securities, prior to or on the 30th day after the occurrence of a Fundamental Change, the Company, or, at the written request and expense of the Company prior to or on the 30th day after such occurrence, the Trustee shall give to the Trustee, the Paying Agent and all Holders of SecuritiesSecurities notice, in the manner provided in this Section 3.414.2 hereof, a notice containing the information required pursuant to the following provisions of this Section 3.4(a) (the "Company Notice") (i) on or before the 20th Business Day prior to the Repurchase Date or, in the event of a Fundamental Change arising from a Change of Control, the anticipated Effective Date (but in no event earlier than 45 days prior to the Repurchase Date or anticipated Effective Date, as the case may be), and (ii) within 15 Business Days after the Company knows or reasonably should know of the occurrence of a the Fundamental Change that arises and of the Repurchase Right set forth herein arising as a result of any Termination of Trading. Prior to or concurrently with thereof (the delivery of any “Company Notice, the Company will issue a press release or publish such information on the Company's then existing website including the information required to be included in such Company Notice hereunder”). The Company shall also deliver a copy of any Company Notice such notice of a Repurchase Right to the Trustee. At the request and expense Each notice of the Company on or before the fifth Business Day prior to the date on which the Company Notice is to be mailed, the Trustee shall provide the Company Notice to the Holders in accordance with the provisions of this Indenture. Each Company Notice a Repurchase Right shall state:
(i1) the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be,;
(ii2) the date by which the repurchase right Repurchase Right must be exercised,;
(iii3) the Repurchase Price or the Fundamental Change Repurchase Priceand accrued and unpaid interest, as the case may beif any, and whether the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, shall be paid by the Company in cash or by delivery of shares of Common Stock, or a specified combination thereof and the percentage of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, that will be paid in shares of Common Stock (which indication shall be irrevocable, subject to the satisfaction (or waiver) of the conditions set forth in Section 3.3),;
(iv) if the notice relates to the occurrence of a Fundamental Change, the events causing the Fundamental Change and the date of the Fundamental Change,
(v) that Securities with respect to which a Holder gives a Repurchase Notice or Fundamental Change Repurchase Notice may be converted only if the Holder withdraws the Repurchase Notice or Fundamental Change Repurchase Notice as to such Securities in accordance with the terms of this Indenture,
(vi4) a description of the procedure that which a Holder must follow to exercise a repurchase rightRepurchase Right, and the place or places where such Securities Securities, are to be surrendered for payment of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, and accrued but and unpaid interest (and Liquidated Damages)interest, if any, to, but excluding, the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be,;
(vii5) that on the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be, the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, and accrued but and unpaid interest (and Liquidated Damages)interest, if any, to, but excluding, the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be, will become due and payable upon each such Security designated by the Holder to be repurchased, and that interest thereon shall cease to accrue on and after said date,;
(viii6) the Conversion Price Rate then in effect,, the date on which the right to convert the principal amount of the Securities to be repurchased will terminate and the place where such Securities may be surrendered for conversion;
(ix7) the place or places that where such Securities, together with the Security Option to Elect Repayment Upon a Change of Control certificate (including the Election included in Exhibit A annexed hereto are to be delivered for payment of Holder to Require Repurchase attached thereto) and the Repurchase Notice (as defined below) shall be delivered, andPrice and accrued and unpaid interest, if the Security is a Restricted Security, the place or places that the Transfer Certificate in the form set forth in Exhibit C, required by Section 2.12 shall be delivered,
(x) the name and address of the Paying Agent and Conversion Agent, any; and
(xi) if the notice relates to 8) whether a Fundamental Change, the estimated amount of any Make-Whole Premium and the respective percentages of such Make-Whole Premium that will be paid (as contemplated by Section 6.1(b)) in shares of Common Stock and in cash (which indication shall be irrevocable), subject to payable by the satisfaction (or waiver) of the conditions set forth in Section 6.1(c), in the event that a Holder should, in lieu of electing to have Securities repurchased on the Fundamental Change Repurchase Date, elect to convert such Securities during the Fundamental Change Conversion Period, and
(xii) any other information to be included therein pursuant to Section 6.1Company upon conversion. No failure of the Company to give the foregoing notices or defect therein shall limit any Holder's ’s right to exercise a repurchase right Repurchase Right or affect the validity of the proceedings for the repurchase of Securities. If any of the foregoing provisions or other provisions of this Article III 11 are inconsistent with applicable law, such law shall govern.
(b) To exercise a repurchase right pursuant to Section 3.1 or Section 3.2Repurchase Right, a Holder shall deliver to the Paying Agent Trustee prior to or on the 30th day after the date of the Company Notice:
(i1) written notice (in the case of a repurchase pursuant to Section 3.1, a "Repurchase Notice" and, in the case of a repurchase pursuant to Section 3.2, a "Fundamental Change Repurchase Notice") of the Holder's ’s exercise of such right, which notice shall set forth the name of the Holder, the principal amount of the Securities to be repurchased (and, if any Security is to be repurchased in part, the serial number thereof, the portion of the principal amount thereof to be repurchased (which portion must be in principal amounts of $1,000 or a whole multiple of $1,000repurchased) and the name of the Person in which the portion thereof to remain outstanding after such repurchase is to be registered), if certificated, the certificate numbers of the Securities to be repurchased, and a statement that an election to exercise the repurchase right pursuant to the terms and conditions specified in the Securities and the Indenture Repurchase Right is being made thereby, and, in the event that any portion of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, shall be paid in shares of Common Stock, the name or names (with addresses) in which the certificate or certificates for shares of Common Stock shall be issued, and and
(ii2) the Securities with respect to which the Repurchase Notice or Fundamental Change Repurchase Notice relates at any time after delivery Right is being exercised. Such written notice shall be irrevocable, except that the right of the Repurchase Notice or Holder to convert the Fundamental Change Repurchase Notice, as the case may be (together Securities with all necessary endorsements), at the offices of the Paying Agent, such delivery being a condition respect to receipt by the Holder of which the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, thereof; provided, however, that such Repurchase Price or Fundamental Change Repurchase Price, as the case may be, Right is being exercised shall be so paid pursuant to this Section 3.4(b) only if the Securities so delivered to the Paying Agent shall conform in all respects to the description thereof in the related Repurchase Notice or Fundamental Change Repurchase Notice. In the case of a repurchase right pursuant to Section 3.1 and Section 3.2, such delivery shall be at any time from the opening of business on the date that is 20 Business Days prior to the Repurchase Date continue until the close of business on the second Business Day prior immediately preceding the Repurchase Date.
(c) In the event a Repurchase Right shall be exercised in accordance with the terms hereof, the Company shall pay or cause to be paid to the Trustee the Repurchase Price in cash for payment to the Holder on the Repurchase Date or, if shares of Common Stock are to be paid, shares of Common Stock, as provided above, as promptly after the Repurchase Date as practicable, together with accrued and unpaid interest to the Repurchase Date payable in cash with respect to the Securities as to which the Repurchase Right has been exercised; provided, however, that installments of interest that mature prior to or on the Fundamental Change Repurchase Date shall be payable in cash to the Holders of such Securities, or one or more Predecessor Securities, registered as such at the close of business on the relevant Regular Record Date.
(d) If any Security (or portion thereof) surrendered for repurchase shall not be so paid on the Repurchase Date, the principal amount of such Security (or portion thereof, as the case may be) shall, subject until paid, bear interest to extension the extent permitted by applicable law from the Repurchase Date at the Interest Rate, and each Security shall remain convertible into Common Stock until the principal of such Security (or portion thereof, as the case may be) shall have been paid or duly provided for.
(e) Any Security which is to comply with applicable lawbe repurchased only in part shall be surrendered to the Trustee (with, if the Company or the Trustee so requires, due endorsement by, or a written instrument of transfer in form satisfactory to the Company and the Trustee duly executed by the Holder thereof or his attorney duly authorized in writing), and the Company shall execute, and the Trustee shall authenticate and make available for delivery to the Holder of such Security without service charge, a new Security or Securities, containing identical terms and conditions, each in an authorized denomination in aggregate principal amount equal to and in exchange for the unrepurchased portion of the principal of the Security so surrendered.
(f) Any issuance of shares of Common Stock in respect of the Repurchase Price shall be deemed to have been effected immediately prior to the close of business on the Repurchase Date and the Person or Persons in whose name or names any certificate or certificates for shares of Common Stock shall be issuable upon such repurchase shall be deemed to have become on the Repurchase Date the holder or holders of record of the shares represented thereby; provided, however, that any surrender for repurchase on a date when the stock transfer books of the Company shall be closed shall constitute the Person or Persons in whose name or names the certificate or certificates for such shares are to be issued as the record holder or holders thereof for all purposes at the opening of business on the next succeeding day on which such stock transfer books are open. Owners No payment or adjustment shall be made for dividends or distributions on any Common Stock issued upon repurchase of beneficial interests any Security declared prior to the Repurchase Date.
(g) No fractions of shares of Common Stock shall be issued upon repurchase of any Security or Securities. If more than one Security shall be repurchased from the same Holder and the Repurchase Price shall be payable in Global shares of Common Stock, the number of full shares which shall be issued upon such repurchase shall be computed on the basis of the aggregate principal amount of the Securities (or specified portions thereof) to be so repurchased. Instead of any fractional share of Common Stock which would otherwise be issued on the repurchase of any Security or Securities (or specified portions thereof), the Company shall pay a cash adjustment in respect of such fraction (calculated to the nearest one-100th of a share) in an amount equal to the same fraction of the Quoted Price of the Common Stock as of the Trading Day preceding the Repurchase Date.
(h) Any issuance and delivery of certificates for shares of Common Stock on repurchase of Securities shall provide a Repurchase Notice be made without charge to the Holder of Securities being repurchased for such certificates or Fundamental Change Repurchase Notice for any tax or duty in accordance with the Applicable Procedures respect of the Depositaryissuance or delivery of such certificates or the Securities represented thereby; provided, however, that the Company shall not be required to pay any tax or duty which may be payable in respect of (i) income of the Holder or (ii) any transfer involved in the issuance or delivery of certificates for shares of Common Stock in a name other than that of the Holder of the Securities being repurchased, and no such issuance or delivery shall be made unless the Persons requesting such issuance or delivery has paid to the Company the amount of any such tax or duty or has established, to the satisfaction of the Company, that such tax or duty has been paid.
(i) All Securities delivered for repurchase shall be delivered to the Trustee to be canceled at the direction of the Trustee, which shall dispose of the same as provided in Section 2.15 hereof.
Appears in 1 contract
Samples: Indenture (Cv Therapeutics Inc)
Notices; Method of Exercising Repurchase Right, Etc. (a) Unless the Company shall have theretofore called for redemption all of the outstanding SecuritiesOutstanding ____% Debentures or unless all of the Outstanding ____% Debentures shall have theretofore been converted in accordance with Article Thirteen, the Company shall give to the Trustee, the Paying Agent and all Holders of Securities, in the manner provided in this Section 3.4, a notice containing the information required pursuant to the following provisions of this Section 3.4(a) (the "Company Notice") (i) on or before the 20th Business Day prior to 30th day after the Repurchase Date or, in the event occurrence of a Fundamental Change arising from a Change of Control, the anticipated Effective Date (but in no event earlier than 45 days prior to the Repurchase Date or anticipated Effective DateCompany or, as the case may be), and (ii) within 15 Business Days after the Company knows or reasonably should know of the occurrence of a Fundamental Change that arises as a result of any Termination of Trading. Prior to or concurrently with the delivery of any Company Notice, the Company will issue a press release or publish such information on the Company's then existing website including the information required to be included in such Company Notice hereunder. The Company shall also deliver a copy of any Company Notice to the Trustee. At at the request and expense of the Company on or before the fifth Business Day prior 15th day after such occurrence, the Trustee, shall give to all Holders, in the manner provided in Section 106, notice (the "Company Notice") of the occurrence of the Change of Control and of the repurchase right set forth herein arising as a result thereof. The Company shall also deliver a copy of such notice of a repurchase right to the date on which the Company Notice is to be mailed, the Trustee shall provide the Company Notice to the Holders in accordance with the provisions of this IndentureTrustee. Each Company Notice notice of a repurchase right shall state:
(i1) the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be,
(ii2) the date by which the repurchase right must be exercised,
(iii3) the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, and whether the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, shall be paid by the Company in cash or by delivery of shares of Common Stock, or a specified combination thereof and the percentage of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, that will be paid in shares of Common Stock (which indication shall be irrevocable, subject to the satisfaction (or waiver) of the conditions set forth in Section 3.3),
(iv) if the notice relates to the occurrence of a Fundamental Change, the events causing the Fundamental Change and the date of the Fundamental Change,
(v) that Securities with respect to which a Holder gives a Repurchase Notice or Fundamental Change Repurchase Notice may be converted only if the Holder withdraws the Repurchase Notice or Fundamental Change Repurchase Notice as to such Securities in accordance with the terms of this Indenture,
(vi4) a description of the procedure that which a Holder must follow to exercise a repurchase right, and the place or places where such Securities ____% Debentures are to be surrendered for payment of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, and accrued but unpaid interest (and Liquidated Damages)interest, if any, to, but excluding, the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be,
(vii5) that on the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be, the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, and including accrued but unpaid interest (and Liquidated Damages)interest, if any, to, but excluding, the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be, will become due and payable upon each such Security % Debenture designated by the Holder to be repurchased, and that interest thereon shall cease to accrue on and after said date,
(viii6) the Conversion Price Rate then in effect,, the date on which the right to convert the principal amount of the ____% Debentures to be repurchased will terminate and the place or places where such ____% Debentures may be surrendered for conversion, and
(ix7) the place or places that the Security form of certificate (including the Election of Holder to Require Repurchase attached thereto) and the Repurchase Notice (as defined below) required by Section 201 shall be delivered, and, if the Security is a Restricted Security, the place or places that the Transfer Certificate in and the form set forth in Exhibit C, required by Section 2.12 shall be delivered,
(x) the name and address of the Paying Agent and Conversion Agent, and
(xi) if the notice relates to a Fundamental Change, the estimated amount of any Make-Whole Premium and the respective percentages of such Make-Whole Premium that will be paid (as contemplated by Section 6.1(b)) in shares of Common Stock and in cash (which indication shall be irrevocable), subject to the satisfaction (or waiver) of the conditions set forth in Section 6.1(c), in the event that a Holder should, in lieu of electing to have Securities repurchased on the Fundamental Change Repurchase Date, elect to convert such Securities during the Fundamental Change Conversion Period, and
(xii) any other information to be included therein pursuant to Section 6.1certificate. No failure of the Company to give the foregoing notices or defect therein shall limit any Holder's right to exercise a repurchase right or affect the validity of the proceedings for the repurchase of Securities____% Debentures. If any of the foregoing provisions or other provisions of this Article III are inconsistent with applicable law, such law shall govern.
(b) To exercise a repurchase right pursuant to Section 3.1 or Section 3.2right, a Holder shall deliver to the Trustee or any Paying Agent on or before the 30th day after the date of the Company Notice (i) written notice (in the case of a repurchase pursuant to Section 3.1, a "Repurchase Notice" and, in the case of a repurchase pursuant to Section 3.2, a "Fundamental Change Repurchase Notice") of the Holder's exercise of such right, which notice shall set forth the name of the Holder, the principal amount of the Securities ____% Debentures to be repurchased (and, if any Security % Debenture is to be repurchased in part, the portion of the principal amount thereof to be repurchased (which portion must be in principal amounts of $1,000 or a whole multiple of $1,000) and the name of the Person in which the portion thereof to remain outstanding Outstanding after such repurchase is to be registered), if certificated, the certificate numbers of the Securities to be repurchased, ) and a statement that an election to exercise the repurchase right pursuant to the terms and conditions specified in the Securities and the Indenture is being made thereby, and, in the event that any portion of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, shall be paid in shares of Common Stock, the name or names (with addresses) in which the certificate or certificates for shares of Common Stock shall be issued, and (ii) the Securities ____% Debentures with respect to which the Repurchase Notice or Fundamental Change Repurchase Notice relates at any time after delivery repurchase right is being exercised. Such written notice shall be irrevocable, except that the right of the Repurchase Notice or Holder to convert the Fundamental Change Repurchase Notice, as ____% Debentures with respect to which the case may be (together with all necessary endorsements), at the offices of the Paying Agent, such delivery being a condition to receipt by the Holder of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, thereof; provided, however, that such Repurchase Price or Fundamental Change Repurchase Price, as the case may be, shall be so paid pursuant to this Section 3.4(b) only if the Securities so delivered to the Paying Agent shall conform in all respects to the description thereof in the related Repurchase Notice or Fundamental Change Repurchase Notice. In the case of a repurchase right pursuant to Section 3.1 and Section 3.2, such delivery is being exercised shall be at any time from the opening of business on the date that is 20 Business Days prior to the Repurchase Date continue until the close of business on the second Business Day Repurchase Date.
(c) In the event a repurchase right shall be exercised in accordance with the terms hereof, the Company shall pay or cause to be paid to the Trustee or the Paying Agent the Repurchase Price in cash or shares of Common Stock, as provided above, for payment to the Holder on the Repurchase Date or, if shares of Common Stock are to be paid, as promptly after the Repurchase Date as practicable, together with accrued and unpaid interest to the Repurchase Date payable with respect to the ____% Debentures as to which the purchase right has been exercised; provided, however, that installments of interest that mature on or prior to the Repurchase Date shall be payable in cash to the Holders of such ____% Debentures, or one or more Predecessor ____% Debentures, registered as such at the Fundamental Change close of business on the relevant Regular Record Date according to the terms and provisions of Section 307.
(d) If any % Debenture (or portion thereof) surrendered for repurchase shall not be so paid on the Repurchase DateDate by the Company, the principal amount of such % Debenture (or portion thereof, as the case may be) shall, subject until paid, bear interest to extension the extent permitted by applicable law from the Repurchase Date at the rate of ____% per annum, and each % Debenture shall remain convertible into Common Stock until the principal of such % Debenture (or portion thereof, as the case may be) shall have been paid or duly provided for.
(e) Any % Debenture which is to comply with applicable law. Owners be repurchased only in part shall be surrendered to the Trustee (with, if the Company or the Trustee so requires, due endorsement by, or a written instrument of beneficial interests transfer in Global Securities form satisfactory to the Company and the Trustee duly executed by, the Holder thereof or his attorney duly authorized in writing), and the Company shall provide execute, and the Trustee shall authenticate and make available for delivery to the Holder of such % Debenture without service charge, a Repurchase Notice new % Debenture or Fundamental Change Repurchase Notice ____% Debentures, containing identical terms and conditions, each in accordance with an authorized denomination in aggregate principal amount equal to and in exchange for the Applicable Procedures unrepurchased portion of the Depositaryprincipal of the % Debenture so surrendered.
(f) Any issuance of shares of Common Stock in respect of the Repurchase Price shall be deemed to have been effected immediately prior to the close of business on the Repurchase Date and the Person or Persons in whose name or names any certificate or certificates for shares of Common Stock shall be issuable upon such repurchase shall be deemed to have become on the Repurchase Date the holder or holders of record of the shares represented thereby; provided, however, that any surrender for repurchase on a date when the stock transfer books of the Company shall be closed shall constitute the Person or Persons in whose name or names the certificate or certificates for such shares are to be issued as the record holder or holders thereof for all purposes at the opening of business on the next succeeding day on which such stock transfer books are open. No payment or adjustment shall be made for dividends or distributions on any Common Stock issued upon repurchase of any % Debenture declared prior to the Repurchase Date.
(g) No fractions of shares shall be issued upon repurchase of ____% Debentures. If more than one % Debenture shall be repurchased from the same Holder and the Repurchase Price shall be payable in shares of Common Stock, the number of full shares which shall be issuable upon such repurchase shall be computed on the basis of the aggregate principal amount of the ____% Debentures so repurchased. Instead of any fractional share of Common Stock which would otherwise be issuable on the repurchase of any % Debenture or ____% Debentures, the Company will deliver to the applicable Holder its check for the current market value of such fractional share. The current market value of a fraction of a share is determined by multiplying the current market price of a full share by the fraction, and rounding the result to the nearest cent. For purposes of this Section, the current market price of a share of Common Stock is the Closing Price Per Share of the Common Stock on the Trading Day immediately preceding the Repurchase Date.
(h) Any issuance and delivery of certificates for shares of Common Stock on repurchase of ____% Debentures shall be made without charge to the Holder of ____% Debentures being repurchased for such certificates or for any tax or duty in respect of the issuance or delivery of such certificates or the securities represented thereby; provided, however, that the Company shall not be required to pay any tax or duty which may be payable in respect of (i) income of the Holder or (ii) any transfer involved in the issuance or delivery of certificates for shares of Common Stock in a name other than that of the Holder of the ____% Debentures being repurchased, and no such issuance or delivery shall be made unless and until the Person requesting such issuance or delivery has paid to the Company the amount of any such tax or duty or has established, to the satisfaction of the Company, that such tax or duty has been paid.
(i) All ____% Debentures delivered for repurchase shall be delivered to the Trustee, the Paying Agent or any other agents (as shall be set forth in the Company Notice) to be canceled by or at the direction of the Trustee, which shall dispose of the same as provided in Section 309.
Appears in 1 contract
Samples: Supplemental Indenture (Inacom Corp)
Notices; Method of Exercising Repurchase Right, Etc. (a) Unless the Company shall have theretofore previously called for redemption all of the outstanding SecuritiesOutstanding Securities or unless all of the Outstanding Securities shall have theretofore been converted in accordance with Article Thirteen, the Company shall give to the Trustee, the Paying Agent and all Holders of Securities, in the manner provided in this Section 3.4, a notice containing the information required pursuant to the following provisions of this Section 3.4(a) (the "Company Notice") (i) on or before the 20th Business Day prior to 30th day after the Repurchase Date or, in the event occurrence of a Fundamental Change arising from a Change of Control, the anticipated Effective Date (but in no event earlier than 45 days prior to the Repurchase Date or anticipated Effective DateCompany or, as the case may be), and (ii) within 15 Business Days after the Company knows or reasonably should know of the occurrence of a Fundamental Change that arises as a result of any Termination of Trading. Prior to or concurrently with the delivery of any Company Notice, the Company will issue a press release or publish such information on the Company's then existing website including the information required to be included in such Company Notice hereunder. The Company shall also deliver a copy of any Company Notice to the Trustee. At at the request and expense of the Company on or before the fifth Business Day prior 15th day after such occurrence, the Trustee, shall give to all Holders, in the manner provided in Section 106, notice (the "Company Notice") of the occurrence of the Change of Control and of the repurchase right set forth herein arising as a result thereof. The Company shall also deliver a copy of such notice of a repurchase right to the date on which the Company Notice is to be mailed, the Trustee shall provide the Company Notice to the Holders in accordance with the provisions of this IndentureTrustee. Each Company Notice notice of a repurchase right shall state:
(i1) the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be,
(ii2) the date by which the repurchase right must be exercised,
(iii3) the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, and whether the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, shall be paid by the Company in cash or by delivery of shares of Common Stock, or a specified combination thereof and the percentage of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, that will be paid in shares of Common Stock (which indication shall be irrevocable, subject to the satisfaction (or waiver) of the conditions set forth in Section 3.3),
(iv) if the notice relates to the occurrence of a Fundamental Change, the events causing the Fundamental Change and the date of the Fundamental Change,
(v) that Securities with respect to which a Holder gives a Repurchase Notice or Fundamental Change Repurchase Notice may be converted only if the Holder withdraws the Repurchase Notice or Fundamental Change Repurchase Notice as to such Securities in accordance with the terms of this Indenture,
(vi4) a description of the procedure that which a Holder must follow to exercise a repurchase right, and the place or places where such Securities are to be surrendered for payment of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, and accrued but unpaid interest (and Liquidated Damages)interest, if any, to, but excluding, the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be,
(vii5) that on the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be, the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, and accrued but unpaid interest (and Liquidated Damages)interest, if any, to, but excluding, the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be, will become due and payable upon each such Security designated by the Holder to be repurchased, and that interest thereon shall cease to accrue on and after said date,, and
(viii6) the Conversion Price Rate then in effect,
(ix) , the date on which the right to convert the principal amount of the Securities to be repurchased will terminate and the place or places that the Security certificate (including the Election of Holder to Require Repurchase attached thereto) and the Repurchase Notice (as defined below) shall be delivered, and, if the Security is a Restricted Security, the place or places that the Transfer Certificate in the form set forth in Exhibit C, required by Section 2.12 shall be delivered,
(x) the name and address of the Paying Agent and Conversion Agent, and
(xi) if the notice relates to a Fundamental Change, the estimated amount of any Make-Whole Premium and the respective percentages of such Make-Whole Premium that will be paid (as contemplated by Section 6.1(b)) in shares of Common Stock and in cash (which indication shall be irrevocable), subject to the satisfaction (or waiver) of the conditions set forth in Section 6.1(c), in the event that a Holder should, in lieu of electing to have Securities repurchased on the Fundamental Change Repurchase Date, elect to convert where such Securities during the Fundamental Change Conversion Period, and
(xii) any other information to may be included therein pursuant to Section 6.1surrendered for conversion. No failure of the Company to give the foregoing notices or defect therein shall limit any Holder's right to exercise a repurchase right or affect the validity of the proceedings for the repurchase of Securities. If any of the foregoing provisions or other provisions of this Article III Fourteen are inconsistent with applicable law, such law shall govern.
(b) To exercise a repurchase right pursuant to Section 3.1 or Section 3.2right, a Holder shall deliver to the Trustee or any Paying Agent on or before the 30th day after the date of the Company Notice (i) written notice (in the case of a repurchase pursuant to Section 3.1, a "Repurchase Notice" and, in the case of a repurchase pursuant to Section 3.2, a "Fundamental Change Repurchase Notice") of the Holder's exercise of such right, which notice shall set forth the name of the Holder, the principal amount of the Securities to be repurchased (and, if any Security is to repurchased in part, the portion of the principal amount thereof to be repurchased (which portion must be in principal amounts of $1,000 or a whole multiple of $1,000) and the name of the Person in which the portion thereof to remain outstanding Outstanding after such repurchase is to be registered), if certificated, the certificate numbers of the Securities to be repurchased, and a statement that an election to exercise the repurchase right pursuant to the terms and conditions specified in the Securities and the Indenture is being made thereby, and, in the event that any portion of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, shall be paid in shares of Common Stock, the name or names (with addresses) in which the certificate or certificates for shares of Common Stock shall be issued, and (ii) the Securities with respect to which the Repurchase Notice or Fundamental Change Repurchase Notice relates at any time after delivery repurchase right is being exercised. Such written notice shall be irrevocable, except that the right of the Repurchase Notice or the Fundamental Change Repurchase Notice, as the case may be (together with all necessary endorsements), at the offices of the Paying Agent, such delivery being a condition Holder to receipt by the Holder of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, thereof; provided, however, that such Repurchase Price or Fundamental Change Repurchase Price, as the case may be, shall be so paid pursuant to this Section 3.4(b) only if convert the Securities so delivered with respect to which the Paying Agent shall conform in all respects to the description thereof in the related Repurchase Notice or Fundamental Change Repurchase Notice. In the case of a repurchase right pursuant to Section 3.1 and Section 3.2, such delivery is being exercised shall be at any time from the opening of business on the date that is 20 Business Days prior to the Repurchase Date continue until the close of business on the second Business Day Repurchase Date.
(c) In the event a repurchase right shall be exercised in accordance with the terms hereof, the Company shall pay or cause to be paid to the Trustee or the Paying Agent the Repurchase Price in cash for paying to the Holder on the Repurchase Date, together with accrued and unpaid interest to the Repurchase Date payable with respect to the Securities as to which the purchase right has been exercised; provided, however, that installments of interest on Securities whose Stated Maturity is on or prior to the Repurchase Date shall be payable in cash to the Holders of such Securities, or one or more Predecessor Securities, registered as such at the Fundamental Change close of business on the relevant Regular Date according to the terms and provisions of Section 307.
(d) If any Security (or portion thereof) surrendered for repurchase shall not be so paid on the Repurchase Date, the principal amount of such Security (or portion thereof, as the case may be) shall, subject until paid, bear interest to extension the extent permitted by applicable law from the Repurchase Date at the rate of ____% per annum, and each Security shall remain convertible into Common Stock until the principal of such Security (or portion thereof, as the case may be) shall have been paid or duly provided for.
(e) Any Security which is to comply be repurchased only in part shall be surrendered to the Trustee (with applicable law. Owners due endorsement by, or a written instrument of beneficial interests transfer in Global Securities form satisfactory to the Company and the Trustee duly executed by, the Holder thereof or his attorney duly authorized in writing), and the Company shall provide execute, and the Trustee shall authenticate and make available for delivery to the Holder of such Security without service charge, a Repurchase Notice new Security or Fundamental Change Repurchase Notice Securities, containing identical terms and conditions, each in accordance with an authorized denomination in aggregate principal amount equal to and in exchange for the Applicable Procedures unrepurchased portion of the Depositaryprincipal of the Security so surrendered.
(f) No payment or adjustment shall be made for dividends or distributions on any Common Stock issued upon repurchase of any Security declared prior to the Repurchase Date.
(g) All Securities delivered for repurchase shall be delivered to the Trustee, the Paying Agent or any other agents (as shall be set forth in the Company Notice) to be cancelled by or at the direction of the Trustee, which shall dispose of the same as provided in Section 309.
Appears in 1 contract
Samples: Indenture (Reptron Electronics Inc)
Notices; Method of Exercising Repurchase Right, Etc. (a) Unless the Company shall have theretofore called for redemption all of the outstanding Outstanding Securities, on or before the 30th day after the occurrence of a Fundamental Change, the Company or, at the request and expense of the Company, the Trustee, shall give to the Trustee, the Paying Agent and all Holders of Securities, in the manner provided in this Section 3.41.06, a notice containing the information required pursuant to the following provisions of this Section 3.4(a) (the "Company NoticeCOMPANY NOTICE") (i) on or before the 20th Business Day prior to the Repurchase Date or, in the event of a Fundamental Change arising from a Change of Control, the anticipated Effective Date (but in no event earlier than 45 days prior to the Repurchase Date or anticipated Effective Date, as the case may be), and (ii) within 15 Business Days after the Company knows or reasonably should know of the occurrence of a the Fundamental Change that arises and of the repurchase right set forth herein arising as a result of any Termination of Trading. Prior to or concurrently with the delivery of any Company Notice, the Company will issue a press release or publish such information on the Company's then existing website including the information required to be included in such Company Notice hereunderthereof. The Company shall also deliver a copy of any Company Notice such notice of a repurchase right to the Trustee. At the request and expense 108 116 Each notice of the Company on or before the fifth Business Day prior to the date on which the Company Notice is to be mailed, the Trustee shall provide the Company Notice to the Holders in accordance with the provisions of this Indenture. Each Company Notice a repurchase right shall state:
(i) the Repurchase Date or the Fundamental Change Repurchase Redemption Date, as the case may be,
(ii) the date by which the repurchase right must be exercised,
(iii) the Repurchase Price or the Fundamental Change Repurchase Redemption Price, as the case may be, and whether the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, shall be paid by the Company in cash or by delivery of shares of Common Stock, or a specified combination thereof and the percentage of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, that will be paid in shares of Common Stock (which indication shall be irrevocable, subject to the satisfaction (or waiver) of the conditions set forth in Section 3.3),
(iv) if the notice relates to the occurrence of a Fundamental Change, the events causing the Fundamental Change and the date of the Fundamental Change,
(v) that Securities with respect to which a Holder gives a Repurchase Notice or Fundamental Change Repurchase Notice may be converted only if the Holder withdraws the Repurchase Notice or Fundamental Change Repurchase Notice as to such Securities in accordance with the terms of this Indenture,
(vi) a description of the procedure that which a Holder must follow to exercise a repurchase right, and the place or places where such Securities maturing after the Fundamental Change Redemption Date, are to be surrendered for payment of the Repurchase Fundamental Change Redemption Price or and accrued interest, if any,
(v) that on the Fundamental Change Repurchase PriceRedemption Date, as the case may be, Fundamental Change Redemption Price and accrued but unpaid interest (and Liquidated Damages)interest, if any, will become due and payable to, but excluding, the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be,
(vii) that on the Repurchase Redemption Date or the Fundamental Change Repurchase Date, as the case may be, the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, and accrued but unpaid interest (and Liquidated Damages), if any, to, but excluding, the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be, will become due and payable upon each such Security designated by the Holder to be repurchased, and that interest thereon shall cease to accrue on and after said date,, and
(viiivi) the Conversion Price Rate then in effect,
(ix) , the date on which the right to convert the principal amount of the Securities to be repurchased will terminate and the place or places that the Security certificate (including the Election of Holder to Require Repurchase attached thereto) and the Repurchase Notice (as defined below) shall be delivered, and, if the Security is a Restricted Security, the place or places that the Transfer Certificate in the form set forth in Exhibit C, required by Section 2.12 shall be delivered,
(x) the name and address of the Paying Agent and Conversion Agent, and
(xi) if the notice relates to a Fundamental Change, the estimated amount of any Make-Whole Premium and the respective percentages of such Make-Whole Premium that will be paid (as contemplated by Section 6.1(b)) in shares of Common Stock and in cash (which indication shall be irrevocable), subject to the satisfaction (or waiver) of the conditions set forth in Section 6.1(c), in the event that a Holder should, in lieu of electing to have Securities repurchased on the Fundamental Change Repurchase Date, elect to convert where such Securities during the Fundamental Change Conversion Period, and
(xii) any other information to may be included therein pursuant to Section 6.1surrendered for conversion. No failure of the Company to give the foregoing notices or defect therein shall limit any Holder's right to exercise a repurchase right or affect the validity of the proceedings for the repurchase of Securities. If any of the foregoing provisions or other provisions of this Article III are inconsistent with applicable law, such law shall govern.
(b) To exercise a repurchase right pursuant to Section 3.1 or Section 3.2right, a Holder shall deliver to the Trustee or any Paying Agent (i) written notice (in on or before the case of a repurchase pursuant to Section 3.1, a "Repurchase Notice" and, in 30th day after the case of a repurchase pursuant to Section 3.2, a "Fundamental Change Repurchase Notice") date of the Holder's exercise of Company Notice (or if such right, which notice shall set forth the name of the Holder30th day is not a Business Day, the principal amount of immediately preceding Business Day) the Securities Security to be repurchased (andwith the form entitled "Option to Elect Redemption Upon a Fundamental Change" on the reverse thereof duly completed, if any together with such Security is to repurchased in partduly endorsed for transfer. Such written notice shall be irrevocable, except that the portion right of the principal amount thereof Holder to be repurchased (which portion must be in principal amounts of $1,000 or a whole multiple of $1,000) and the name of the Person in which the portion thereof to remain outstanding after such repurchase is to be registered), if certificated, the certificate numbers of convert the Securities with respect to be repurchased, and a statement that an election to exercise which the repurchase right pursuant to the terms and conditions specified in the Securities and the Indenture is being made thereby, and, in the event that any portion of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, 109 117 exercised shall be paid in shares of Common Stock, the name or names (with addresses) in which the certificate or certificates for shares of Common Stock shall be issued, and (ii) the Securities to which the Repurchase Notice or Fundamental Change Repurchase Notice relates at any time after delivery of the Repurchase Notice or the Fundamental Change Repurchase Notice, as the case may be (together with all necessary endorsements), at the offices of the Paying Agent, such delivery being a condition to receipt by the Holder of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, thereof; provided, however, that such Repurchase Price or Fundamental Change Repurchase Price, as the case may be, shall be so paid pursuant to this Section 3.4(b) only if the Securities so delivered to the Paying Agent shall conform in all respects to the description thereof in the related Repurchase Notice or Fundamental Change Repurchase Notice. In the case of a repurchase right pursuant to Section 3.1 and Section 3.2, such delivery shall be at any time from the opening of business on the date that is 20 Business Days prior to the Repurchase Date continue until the close of business on the second Business Day prior to the Repurchase Date Fundamental Change Redemption Date.
(c) In the event a repurchase right shall be exercised in accordance with the terms hereof, the Issuers shall pay or cause to be paid to the Trustee or the Paying Agent the Fundamental Change Repurchase Redemption Price in cash, as provided above, for payment to the Holder on the Fundamental Change Redemption Date together with accrued and unpaid interest to the Fundamental Change Redemption Date payable with respect to the Securities as to which their purchase right has been exercised; provided, however, that installments of interest that mature on or prior to the Fundamental Change Redemption Date shall be payable in cash, in the case of Securities, to the Holders of such Securities, or one or more Predecessor Securities, registered as such at the close of business on the relevant Regular Record Date.
(d) If any Security (or portion thereof) surrendered for repurchase shall not be so paid on the Fundamental Change Redemption Date, the principal amount of such Security (or portion thereof, as the case may be) shall, subject until paid, bear interest to extension to comply with the extent permitted by applicable law. Owners of beneficial interests in Global Securities shall provide a Repurchase Notice or law from the Fundamental Change Repurchase Notice Redemption Date at the rate of ____% per annum, and each Security shall remain convertible into Common Stock until the principal of such Security (or portion thereof, as the case may be) shall have been paid or duly provided for.
(e) Any Security which is to be repurchased only in accordance with part shall be surrendered to the Applicable Procedures Trustee (with, if the Issuers or the Trustee so requires, due endorsement by, or a written instrument of transfer in form satisfactory to the Issuers and the Trustee duly executed by, the Holder thereof or his attorney duly authorized in writing), and the Issuers shall execute, and the Trustee shall authenticate and make available for delivery to the Holder of such Security without service charge, a new Security or Securities, containing identical terms and conditions, each in an authorized denomination in aggregate principal amount equal to and in exchange for the unrepurchased portion of the Depositaryprincipal of the Security so surrendered.
(f) All securities delivered for repurchase shall be delivered to the Trustee, the Paying Agent or any other agents (as shall be set forth in the Company Notice) to be canceled by or at the direction of the Trustee, which shall dispose of the same as provided in Section 3.09.
Appears in 1 contract
Samples: Indenture (Veritas Software Corp)
Notices; Method of Exercising Repurchase Right, Etc. (a) Unless the Company shall have theretofore called for redemption all of the outstanding Outstanding Securities, on or before the date that is 30 Business Days after the occurrence of a Change in Control, the Company shall give notice to the Trustee, the Paying Agent and all Holders of Securities, in the manner provided in this Section 3.4, a notice containing the information required pursuant Outstanding Securities and to the following provisions of this Section 3.4(a) Trustee (the "Company Notice") (i) on or before the 20th Business Day prior to the Repurchase Date or, in the event of a Fundamental Change arising from a Change of Control, the anticipated Effective Date (but in no event earlier than 45 days prior to the Repurchase Date or anticipated Effective Date, as the case may be), and (ii) within 15 Business Days after the Company knows or reasonably should know of the occurrence of a Fundamental the Change that arises in Control and of the repurchase right set forth herein arising as a result of any Termination of Trading. Prior to or concurrently with the delivery of any Company Notice, the Company will issue a press release or publish such information on the Company's then existing website including the information required to be included in such Company Notice hereunder. The Company shall also deliver a copy of any Company Notice to the Trustee. At the request and expense of the Company on or before the fifth Business Day prior to the date on which the Company Notice is to be mailed, the Trustee shall provide the Company Notice to the Holders in accordance with the provisions of this Indenturethereof. Each Company Notice shall state:
(i) the Repurchase Date or date of such Change in Control and, briefly, the Fundamental events causing such Change Repurchase Date, as the case may be,in Control;
(ii) the date by which the repurchase right Change in Control Purchase Notice (as defined below) must be exercised,delivered;
(iii) the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, and whether the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, shall be paid by the Company in cash or by delivery of shares of Common Stock, or a specified combination thereof and the percentage of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, that will be paid in shares of Common Stock (which indication shall be irrevocable, subject to the satisfaction (or waiver) of the conditions set forth in Section 3.3),Date;
(iv) if the notice relates to the occurrence of a Fundamental Change, the events causing the Fundamental Change and the date of the Fundamental Change,Repurchase Price;
(v) that Securities with respect to which a Holder gives a Repurchase Notice or Fundamental Change Repurchase Notice may be converted only if the Holder withdraws the Repurchase Notice or Fundamental Change Repurchase Notice as to such Securities in accordance with the terms of this Indenture,
(vi) a description of the procedure that a Holder must follow to exercise a repurchase right, and ;
(vi) the procedures for withdrawing a Change in Control Purchase Notice;
(vii) the place or places where such Securities are to be surrendered for payment of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, and accrued but unpaid interest (and Liquidated Damages), if any, to, but excluding, the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be,
(vii) that on the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be, the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, and accrued but unpaid interest (and Liquidated Damages), if any, to, but excluding, the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be, will become due and payable upon each such Security designated by the Holder to be repurchased, and that interest thereon shall cease to accrue on and after said date,for conversion;
(viii) briefly, the Conversion Price then in effect,conversion rights of Holders of Securities;
(ix) the place or places that the Security certificate (including the Election of Holder to Require Repurchase attached Conversion Rate and any adjustments thereto) and the Repurchase Notice (as defined below) shall be delivered, ; and, if the Security is a Restricted Security, the place or places that the Transfer Certificate in the form set forth in Exhibit C, required by Section 2.12 shall be delivered,
(x) that Holders who want to convert Securities must satisfy the name and address of the Paying Agent and Conversion Agent, and
(xi) if the notice relates to a Fundamental Change, the estimated amount of any Make-Whole Premium and the respective percentages of such Make-Whole Premium that will be paid (as contemplated by Section 6.1(b)) in shares of Common Stock and in cash (which indication shall be irrevocable), subject to the satisfaction (or waiver) of the conditions requirements set forth in Section 6.1(c)the Securities. Promptly after giving the Company Notice to the Holders of Outstanding Securities and to the Trustee, in the event that Company shall cause a Holder should, in lieu of electing to have Securities repurchased on the Fundamental Change Repurchase Date, elect to convert such Securities during the Fundamental Change Conversion Period, and
(xii) any other information to be included therein pursuant to Section 6.1. No failure copy of the Company Notice to give the foregoing notices be published in The Wall Street Journal or defect therein shall limit any Holder's right to exercise a repurchase right or affect the validity another daily newspaper of the proceedings for the repurchase of Securities. If any of the foregoing provisions or other provisions of this Article III are inconsistent with applicable law, such law shall governnational circulation.
(b) [Intentionally Omitted]
(c) To exercise a repurchase right right, a Holder must deliver to the Trustee or at the office or agency maintained by the Company for such purpose in the Borough of Manhattan, The City of New York pursuant to Section 3.1 or Section 3.29.02, a Holder shall deliver prior ---- to the Paying Agent close of business on or before the Repurchase Date, (i) written notice (in the case of a repurchase pursuant to Section 3.1, a "Repurchase Notice" and, in the case of a repurchase pursuant to Section 3.2, a "Fundamental Change Repurchase Notice") of the Holder's exercise of such rightright (the "Change in Control Purchase Notice"), which notice shall set forth (A) the name of the Holder, (B) the certificate numbers of the Securities with respect to which the repurchase right is being exercised, (C) the principal amount of the Securities to be repurchased (and, if any Security is to be repurchased in part, the portion of the principal amount thereof to be repurchased (repurchased, which portion must shall be in principal amounts of $1,000 or a whole multiple integral multiples of $1,000) and the name of the Person in which the portion thereof to remain outstanding after such repurchase is to be registered), if certificated, the certificate numbers of the Securities to be repurchased, and (D) a statement that an election to exercise the repurchase right is being made thereby pursuant to the terms and conditions specified in applicable provisions of the Securities and the Indenture is being made thereby, and, in the event that any portion of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, shall be paid in shares of Common Stock, the name or names (with addresses) in which the certificate or certificates for shares of Common Stock shall be issued, and (ii) surrender the Securities subject to the Change in Control Purchase Notice.
(d) On or prior to the Repurchase Date the Company shall deposit with the Trustee or with the Paying Agent (or, if the Company is acting as its own Paying Agent, segregate and hold in trust as provided in Section 9.03) an amount ---- of money sufficient to pay the Repurchase Price of the Securities that are to be repaid on the Repurchase Date. On the Repurchase Date, the Trustee, a Paying Agent (or, if the Company is acting as its own Paying Agent, the Company) shall repurchase all such Securities validly tendered prior to such date. In the event that a Holder has previously delivered a Change in Control Purchase Notice, but failed to surrender the Security with respect to which such Change in Control Purchase Notice relates, then so long as the Trustee or the Paying Agent holds (or, if the Company is acting as its own Paying Agent, the Company segregates and holds in trust as provided in Section 9.03) money ---- sufficient to pay the Repurchase Price in respect of such Security, then such Security shall cease to be Outstanding for the purposes of this Indenture on the Repurchase Date and all rights of the Holder thereof other than the right to receive the Repurchase Price shall terminate.
(e) If any Security (or portion thereof) surrendered for repurchase shall not have been repurchased on the Business Day following the Repurchase Date, the Repurchase Price in respect of such Security shall, until paid, bear interest from the Business Day following the Repurchase Date at the rate borne by the Security and such Security shall remain convertible into Common Stock until the Repurchase Price and any such accrued interest shall have been paid or duly provided for.
(f) Any Security that is to be repurchased only in part shall be surrendered to the Trustee or any such Paying Agent (or if the Company is acting as its own Paying Agent, the Company) and the Company shall execute, and the Trustee shall authenticate and deliver to the Holder of such Security without service charge, a new Security or Securities, containing identical terms and conditions, each in an authorized denomination in aggregate principal amount equal to and in exchange for the portion of the principal of the Security so surrendered that was not repurchased.
(g) Any Holder that has delivered a Change in Control Purchase Notice shall have the right to withdraw such notice by delivery of a written notice of withdrawal to the Trustee or any such Paying Agent prior to the close of business on the Repurchase Date. The notice of withdrawal shall state the principal amount and the certificate numbers of the Securities as to which the Repurchase withdrawal notice relates and the principal amount, if any, that remains subject to the Change in Control Purchase Notice. A Security in respect of which a Holder has exercised its right to require repurchase upon a Change in Control may thereafter be converted into Common Stock only if, and at such time as, such Holder withdraws its Change in Control Purchase Notice or Fundamental in accordance with the preceding sentence.
(h) [Intentionally Omitted]
(i) [Intentionally Omitted]
(j) [Intentionally Omitted]
(k) Notwithstanding anything to the contrary in this Section 11.02, ----- the Company shall not be required to give the Company Notice following the occurrence of a Change Repurchase Notice relates at any time after delivery of in Control if, in the Repurchase Notice or the Fundamental Change Repurchase Notice, as the case may be (together with all necessary endorsements)manner, at the offices time and otherwise in compliance with the requirements set forth herein regarding the Company's obligation to offer to repurchase the Outstanding Securities following the occurrence of a Change in Control, (A) another Person makes an offer to repurchase the Paying AgentOutstanding Securities by giving a notice containing the information set forth in clauses (i) through (x) of Section 11.02 (a) to the --------- Holders of all Outstanding Securities and to the Trustee, (B) such delivery being a condition to receipt by Person repurchases all Outstanding Securities validly tendered and not withdrawn, and (C) such Person makes all payments with respect thereto. This Section 11.02(k) -------- shall not relieve the Holder Company of the Repurchase Price any of its obligations under this Indenture or the Fundamental Change Repurchase Price, as the case may be, thereofany Security; provided, however, that such Repurchase Price or Fundamental Change Repurchase Priceif another Person makes the offer to repurchase Outstanding Securities as set forth in this Section, as the case may beCompany shall not be obligated to give the Company Notice.
(l) Absent, shall be so paid pursuant to this Section 3.4(b) only if the Securities so delivered and except to the Paying Agent shall conform in all respects to extent of, the description thereof in the related Repurchase Notice or Fundamental Change Repurchase Notice. In the case Trustee's receipt of a repurchase right pursuant Company Notice of a Change in Control, the Trustee shall not be under any duty to Section 3.1 and Section 3.2determine or monitor whether a Change in Control has occurred, such delivery shall be at any from time from the opening of business on the date that is 20 Business Days prior to the Repurchase Date until the close of business on the second Business Day prior to the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be, subject to extension to comply with applicable law. Owners of beneficial interests in Global Securities shall provide a Repurchase Notice or Fundamental Change Repurchase Notice in accordance with the Applicable Procedures of the Depositarytime.
Appears in 1 contract
Samples: Indenture (Transwitch Corp /De)
Notices; Method of Exercising Repurchase Right, Etc. (a1) Unless the Company shall have theretofore called for redemption all of the outstanding Outstanding Securities, on or before the 30th day after the occurrence of a Change in Control, the Company or, at the request and expense of the Company on or before the 15th day after such occurrence, the Trustee, shall give to the Trustee, the Paying Agent and all Holders of SecuritiesSecurities and to the Trustee, in the manner provided in this Section 3.41.6, a notice containing the information required pursuant to the following provisions of this Section 3.4(a) (the "“Company Notice"”) (i) on or before the 20th Business Day prior to the Repurchase Date or, in the event of a Fundamental Change arising from a Change of Control, the anticipated Effective Date (but in no event earlier than 45 days prior to the Repurchase Date or anticipated Effective Date, as the case may be), and (ii) within 15 Business Days after the Company knows or reasonably should know of the occurrence of a Fundamental the Change that arises in Control and of the repurchase right set forth herein arising as a result of any Termination of Trading. Prior to or concurrently with the delivery of any Company Notice, thereof and the Company will shall issue a press release or publish such information on the Company's then existing website Press Release including the information required to be included in such Company Notice hereunder. The Company shall also deliver a copy of any such Company Notice to the Trustee. At the request and expense of the Company on or before the fifth Business Day prior to the date on which the Company Notice is to be mailed, the Trustee shall provide the Company Notice to the Holders in accordance with the provisions of this Indenture. Each Company Notice shall state:
(i) the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be,
(ii) the date by which the repurchase right must be exercised,
(iii) the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, and whether the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, shall be paid by the Company in cash or by delivery of shares of Common Stock, or a specified combination thereof and the percentage of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, that will be paid in shares of Common Stock (which indication shall be irrevocable, subject to the satisfaction (or waiver) of the conditions set forth in Section 3.3),
(iv) if the notice relates to the occurrence of a Fundamental Change, the events causing the Fundamental Change and the date of the Fundamental Change,
(v) that Securities with respect to which a Holder gives a Repurchase Notice or Fundamental Change Repurchase Notice may be converted only if the Holder withdraws the Repurchase Notice or Fundamental Change Repurchase Notice as to such Securities in accordance with the terms of this Indenture,
(vi) a description of the procedure that a Holder must follow to exercise a repurchase right, and the place or places where such Securities are to be surrendered for payment of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, and accrued but unpaid interest (and Liquidated Damages), if any, to, but excluding, the Repurchase Date or the Fundamental Change Repurchase Date, as the case may beinterest,
(viiv) that on the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be, the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, and accrued but unpaid interest (and Liquidated Damages), if any, to, but excluding, the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be, will become due and payable in cash upon each such Security designated by the Holder to be repurchased, and that interest thereon shall will cease to accrue on and after said such date,
(viiivi) the Conversion Price Rate then in effect,, whether the conversion rights are then exercisable, the date on which the right to convert the principal amount of the Securities to be repurchased will terminate and the place or places where such Securities may be surrendered for conversion, and
(ixvii) the place or places that the Security certificate (including with the Election of Holder to Require Repurchase attached thereto) and the Repurchase Notice (as defined below) specified in Section 2.2 shall be delivered, and, if the Security is a Restricted Security, the place or places that the Transfer Certificate in the form set forth in Exhibit C, required by Section 2.12 shall be delivered,
(x) the name and address of the Paying Agent and Conversion Agent, and
(xi) if the notice relates to a Fundamental Change, the estimated amount of any Make-Whole Premium and the respective percentages of such Make-Whole Premium that will be paid (as contemplated by Section 6.1(b)) in shares of Common Stock and in cash (which indication shall be irrevocable), subject to the satisfaction (or waiver) of the conditions set forth in Section 6.1(c), in the event that a Holder should, in lieu of electing to have Securities repurchased on the Fundamental Change Repurchase Date, elect to convert such Securities during the Fundamental Change Conversion Period, and
(xii) any other information to be included therein pursuant to Section 6.1. No failure of the Company to give the foregoing notices or defect therein shall limit any Holder's ’s right to exercise a repurchase right or affect the validity of the proceedings for the repurchase of Securities. If any of the foregoing provisions or other provisions of this Article III XIV are inconsistent with applicable law, such law shall govern.
(b2) To exercise a repurchase right pursuant to Section 3.1 or Section 3.2right, a Holder shall deliver to the Paying Agent Trustee on or before the 30th day after the date of the Company Notice (i) irrevocable written notice (in the case of a repurchase pursuant to Section 3.1, a "Repurchase Notice" and, in the case of a repurchase pursuant to Section 3.2, a "Fundamental Change Repurchase Notice") of the Holder's ’s exercise of such right, which notice shall set forth the name of the Holder, the principal amount of the Securities to be repurchased (and, if any Security is to repurchased in part, the serial number thereof, the portion of the principal amount thereof to be repurchased (which portion must be in principal amounts of $1,000 or a whole multiple of $1,000) and the name of the Person in which the portion thereof to remain outstanding Outstanding after such repurchase is to be registered), if certificated, the certificate numbers of the Securities to be repurchased, ) and a statement that an election to exercise the repurchase right pursuant to the terms and conditions specified in the Securities and the Indenture is being made thereby, and, in the event that any portion of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, shall be paid in shares of Common Stock, the name or names (with addresses) in which the certificate or certificates for shares of Common Stock shall be issued, and (ii) the Securities with respect to which the Repurchase Notice or Fundamental Change Repurchase Notice relates at any time after delivery repurchase right is being exercised. Such written notice shall be irrevocable, except that the right of the Repurchase Notice or the Fundamental Change Repurchase Notice, as the case may be (together with all necessary endorsements), at the offices of the Paying Agent, such delivery being a condition Holder to receipt by the Holder of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, thereof; provided, however, that such Repurchase Price or Fundamental Change Repurchase Price, as the case may be, shall be so paid pursuant to this Section 3.4(b) only if convert the Securities so delivered with respect to which the Paying Agent shall conform in all respects to the description thereof in the related Repurchase Notice or Fundamental Change Repurchase Notice. In the case of a repurchase right pursuant to Section 3.1 and Section 3.2, such delivery is being exercised shall be at any time from the opening of business on the date that is 20 Business Days prior to the Repurchase Date continue until the close of business on the second Business Day immediately preceding the Repurchase Date.
(3) In the event a repurchase right shall be exercised in accordance with the terms hereof, the Company shall pay or cause to be paid to the Trustee the Repurchase Price in cash, as provided above, for payment to the Holder on the Repurchase Date; provided, however, that installments of interest that mature on or prior to the Repurchase Date shall be payable in cash to the Holders of such Securities, or one or more Predecessor Securities, registered as such at the Fundamental Change close of business on the relevant Regular Record Date, on the date that is not more than 45 days after the date of the Company Notice.
(4) If any Security (or portion thereof) surrendered for repurchase shall not be so paid on the Repurchase DateDate the principal amount of such Security (or portion thereof, as the case may be) shall, subject until paid, bear interest to extension the extent permitted by applicable law from the Repurchase Date at the rate of 0.50% per annum, and each such Security shall remain convertible as provided in Article XII until the principal of such Security (or portion thereof, as the case may be) shall have been paid.
(5) Any Security that is to be repurchased only in part shall be surrendered to the Trustee (with, if the Company or the Trustee so requires, due endorsement by, or a written instrument of transfer in form satisfactory to the Company and the Trustee duly executed by, the Holder thereof or his attorney duly authorized in writing), and the Company shall execute, and the Trustee shall authenticate and make available for delivery to the Holder of such Security without service charge, a new Security or Securities, containing identical terms and conditions, each in an authorized denomination in aggregate principal amount equal to and in exchange for the unrepurchased portion of the principal of the Security so surrendered.
(6) All Securities delivered for repurchase shall be delivered to the Trustee to be canceled at the direction of the Trustee, which shall dispose of the same as provided in Section 3.9.
(7) The Company will comply with applicable law. Owners of beneficial interests the Exchange Act and the rules and regulations promulgated under the Exchange Act, to the extent applicable, in Global Securities shall provide a Repurchase Notice or Fundamental Change Repurchase Notice in accordance connection with the Applicable Procedures of the DepositaryCompany Notice.
Appears in 1 contract
Samples: Indenture (Solectron Corp)
Notices; Method of Exercising Repurchase Right, Etc. (a) Unless the Company shall have theretofore called for redemption all of the outstanding Outstanding Securities, on or before the 30th day after the occurrence of a Change in Control, the Company or, at the request and expense of the Company, the Trustee, shall give to the Trustee, the Paying Agent and all Holders of Securities, in the manner provided in this Section 3.41.05, a notice containing the information required pursuant to the following provisions of this Section 3.4(a) (the "Company Notice") (i) on or before the 20th Business Day prior to the Repurchase Date or, in the event of a Fundamental Change arising from a Change of Control, the anticipated Effective Date (but in no event earlier than 45 days prior to the Repurchase Date or anticipated Effective Date, as the case may be), and (ii) within 15 Business Days after the Company knows or reasonably should know of the occurrence of a Fundamental the Change that arises in Control and of the repurchase right set forth herein arising as a result of any Termination of Trading. Prior to or concurrently with the delivery of any Company Notice, the Company will issue a press release or publish such information on the Company's then existing website including the information required to be included in such Company Notice hereunderthereof. The Company shall also deliver a copy of any Company Notice such notice of a repurchase right to the Trustee. At the request and expense Each notice of the Company on or before the fifth Business Day prior to the date on which the Company Notice is to be mailed, the Trustee shall provide the Company Notice to the Holders in accordance with the provisions of this Indenture. Each Company Notice a repurchase right shall state:
(i) the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be,
(ii) the date by which the repurchase right must be exercised,
(iii) the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, and whether the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, shall be paid by the Company in cash or by delivery of shares of Common Stock, or a specified combination thereof and the percentage of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, that will be paid in shares of Common Stock (which indication shall be irrevocable, subject to the satisfaction (or waiver) of the conditions set forth in Section 3.3),
(iv) if the notice relates to the occurrence of a Fundamental Change, the events causing the Fundamental Change and the date of the Fundamental Change,
(v) that Securities with respect to which a Holder gives a Repurchase Notice or Fundamental Change Repurchase Notice may be converted only if the Holder withdraws the Repurchase Notice or Fundamental Change Repurchase Notice as to such Securities in accordance with the terms of this Indenture,
(vi) a description of the procedure that which a Holder must follow to exercise a repurchase right, and the place or places where such Securities are to be surrendered for payment of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, and accrued but unpaid interest (and Liquidated Damages)interest, if any, to, but excluding, the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be,
(viiv) that on the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be, the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, and accrued but unpaid interest (and Liquidated Damages), if any, to, but excluding, the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be, will become due and payable upon each such Security designated by the Holder to be repurchased, and that interest thereon shall cease to accrue on and after said date,
(viiivi) the Conversion Price Rate then in effect,, the date on which the right to convert the principal amount of the Securities to be repurchased will terminate and the place or places where such Securities may be surrendered for conversion, and
(ixvii) the place or places that the Security certificate (including the Election of Holder to Require Repurchase attached thereto) and the Repurchase Notice (as defined below) required by Section 2.03 shall be delivered, and, if the Security is a Restricted Security, the place or places that the Transfer Certificate in and the form set forth in Exhibit C, required by Section 2.12 shall be delivered,
(x) the name and address of the Paying Agent and Conversion Agent, and
(xi) if the notice relates to a Fundamental Change, the estimated amount of any Make-Whole Premium and the respective percentages of such Make-Whole Premium that will be paid (as contemplated by Section 6.1(b)) in shares of Common Stock and in cash (which indication shall be irrevocable), subject to the satisfaction (or waiver) of the conditions set forth in Section 6.1(c), in the event that a Holder should, in lieu of electing to have Securities repurchased on the Fundamental Change Repurchase Date, elect to convert such Securities during the Fundamental Change Conversion Period, and
(xii) any other information to be included therein pursuant to Section 6.1certificate. No failure of the Company to give the foregoing notices or defect therein shall limit any Holder's right to exercise a repurchase right or affect the validity of the proceedings for the repurchase of Securities. If any of the foregoing provisions or other provisions of this Article III are inconsistent with applicable law, such law shall govern.
(b) To exercise a repurchase right pursuant to Section 3.1 or Section 3.2right, a Holder shall deliver to the Trustee or any Paying Agent on or before the 30th day after the date of the Company Notice (i) written notice (in the case of a repurchase pursuant to Section 3.1, a "Repurchase Notice" and, in the case of a repurchase pursuant to Section 3.2, a "Fundamental Change Repurchase Notice") of the Holder's exercise of such right, which notice shall set forth the name of the Holder, the principal amount of the Securities to be repurchased (and, if any Security is to repurchased in part, the serial number thereof, the portion of the principal amount thereof to be repurchased (which portion must be in principal amounts of $1,000 or a whole multiple of $1,000) and the name of the Person in which the portion thereof to remain outstanding Outstanding after such repurchase is to be registered), if certificated, the certificate numbers of the Securities to be repurchased, ) and a statement that an election to exercise the repurchase right pursuant to the terms and conditions specified in the Securities and the Indenture is being made thereby, and, in the event that any portion of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, shall be paid in shares of Common Stock, the name or names (with addresses) in which the certificate or certificates for shares of Common Stock shall be issued, and (ii) the Securities with respect to which the Repurchase Notice or Fundamental Change Repurchase Notice relates at any time after delivery repurchase right is being exercised. Such written notice shall be irrevocable, except that the right of the Repurchase Notice or the Fundamental Change Repurchase Notice, as the case may be (together with all necessary endorsements), at the offices of the Paying Agent, such delivery being a condition Holder to receipt by the Holder of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, thereof; provided, however, that such Repurchase Price or Fundamental Change Repurchase Price, as the case may be, shall be so paid pursuant to this Section 3.4(b) only if convert the Securities so delivered with respect to which the Paying Agent shall conform in all respects to the description thereof in the related Repurchase Notice or Fundamental Change Repurchase Notice. In the case of a repurchase right pursuant to Section 3.1 and Section 3.2, such delivery is being exercised shall be at any time from the opening of business on the date that is 20 Business Days prior to the Repurchase Date continue until the close of business on the second Business Day Repurchase Date.
(c) In the event a repurchase right shall be exercised in accordance with the terms hereof, the Company shall pay or cause to be paid to the Trustee or the Paying Agent the Repurchase Price in cash for payment to the Holder on the Repurchase Date together with accrued and unpaid interest and Liquidated Damages, if any, to the Repurchase Date payable with respect to the Securities as to which the purchase right has been exercised; provided, however, that installments of interest that mature on or prior to the Repurchase Date shall be payable in cash, in the case of Securities, to the Holders of such Securities, or one or more Predecessor Securities, registered as such at the Fundamental Change close of business on the relevant Regular Record Date, in each case according to the terms and provisions of Article III.
(d) If any Security (or portion thereof) surrendered for repurchase shall not be so paid on the Repurchase Date, the principal amount of such Security (or portion thereof, as the case may be) shall, subject until paid, bear interest to extension the extent permitted by applicable law from the Repurchase Date at the rate of 4.75% per annum, and each Security shall remain convertible into Common Stock until the principal of such Security (or portion thereof, as the case may be) shall have been paid or duly provided for.
(e) Any Security which is to comply with applicable law. Owners be repurchased only in part shall be surrendered to the Trustee (with, if the Company or the Trustee so requires, due endorsement by, or a written instrument of beneficial interests transfer in Global Securities form satisfactory to the Company and the Trustee duly executed by, the Holder thereof or his attorney duly authorized in writing), and the Company shall provide execute, and the Trustee shall authenticate and make available for delivery to the Holder of such Security without service charge, a Repurchase Notice new Security or Fundamental Change Repurchase Notice Securities, containing identical terms and conditions, each in accordance with an authorized denomination in aggregate principal amount equal to and in exchange for the Applicable Procedures unrepurchased portion of the Depositaryprincipal of the Security so surrendered.
Appears in 1 contract
Notices; Method of Exercising Repurchase Right, Etc. (a) Unless the Company shall have theretofore called for redemption all of the outstanding Outstanding Securities, the Company shall give to the Trustee, the Paying Agent and all Holders of Securities, in the manner provided in this Section 3.4, a notice containing the information required pursuant to the following provisions of this Section 3.4(a) (the "Company Notice") (i) on or before the 20th Business Day prior to the Repurchase Date or, in the event of a Fundamental Change arising from a Change of Control, the anticipated Effective Date (but in no event earlier than 45 days prior to the Repurchase Date or anticipated Effective Date, as the case may be), and (ii) within 15 Business Days 30th day after the Company knows or reasonably should know of the occurrence of a Fundamental Change that arises as a result of any Termination of Trading. Prior to or concurrently with the delivery of any Company Noticein Control, the Company will issue a press release or publish such information on the Company's then existing website including the information required to be included in such Company Notice hereunder. The Company shall also deliver a copy of any Company Notice to the Trustee. At or, at the request and expense of the Company on or before the fifth Business Day prior 15th day after such occurrence, the Trustee, shall give to all Holders of Securities, in the manner provided in Section 1.6, notice (the "Company Notice") of the occurrence of the Change of Control and of the repurchase right set forth herein arising as a result thereof. The Company shall also deliver a copy of such notice of a repurchase right to the date on which the Company Notice is to be mailed, the Trustee shall provide the Company Notice to the Holders in accordance with the provisions of this IndentureTrustee. Each Company Notice notice of a repurchase right shall state:
(i1) the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be,
(ii2) the date by which the repurchase right must be exercised,
(iii3) the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, and whether the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, shall be paid by the Company in cash or by delivery of shares of Common Stock, or a specified combination thereof and the percentage of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, that will be paid in shares of Common Stock (which indication shall be irrevocable, subject to the satisfaction (or waiver) of the conditions set forth in Section 3.3),
(iv) if the notice relates to the occurrence of a Fundamental Change, the events causing the Fundamental Change and the date of the Fundamental Change,
(v) that Securities with respect to which a Holder gives a Repurchase Notice or Fundamental Change Repurchase Notice may be converted only if the Holder withdraws the Repurchase Notice or Fundamental Change Repurchase Notice as to such Securities in accordance with the terms of this Indenture,
(vi4) a description of the procedure that which a Holder must follow to exercise a repurchase right, and the place or places where such Securities Securities, are to be surrendered for payment of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, and accrued but unpaid interest (and Liquidated Damages)interest, if any, to, but excluding, the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be,
(vii5) that on the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be, the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, and accrued but unpaid interest (and Liquidated Damages)interest, if any, to, but excluding, the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be, will become due and payable upon each such Security designated by the Holder to be repurchased, and that interest thereon shall cease to accrue on and after said date,
(viii6) the Conversion Price Rate then in effect,, the date on which the right to convert the principal amount of the Securities to be repurchased will terminate and the place or places where such Securities may be surrendered for conversion, and
(ix7) the place or places that the Security certificate (including the Election of Holder to Require Repurchase attached thereto) and the Repurchase Notice (as defined below) required by Section 2.2 shall be delivered, and, if and the Security is a Restricted Security, form of such certificate and the place or places that the Transfer Surrender Certificate in the form set forth in Exhibit C, required by Section 2.12 14.3(i) shall be delivered,
(x) . In addition, at least two Business Days preceding the name and address Repurchase Date, the Company shall give to all Holders of the Paying Agent and Conversion Agent, and
(xi) if the notice relates to a Fundamental Change, the estimated amount of any Make-Whole Premium and the respective percentages of such Make-Whole Premium that will be paid (as contemplated by Section 6.1(b)) in shares of Common Stock and in cash (which indication shall be irrevocable), subject to the satisfaction (or waiver) of the conditions set forth in Section 6.1(c)Securities, in the event that manner provided in Section 1.6, notice specifying whether the Repurchase Price will be payable in cash or shares of common stock and shall deliver a Holder should, in lieu copy of electing such notice to have Securities repurchased on the Fundamental Change Repurchase Date, elect to convert such Securities during the Fundamental Change Conversion Period, and
(xii) any other information to be included therein pursuant to Section 6.1Trustee. No failure of the Company to give the foregoing notices or defect therein shall limit any Holder's right to exercise a repurchase right or affect the validity of the proceedings for the repurchase of Securities. If any of the foregoing provisions or other provisions of this Article III Fourteen are inconsistent with applicable law, such law shall govern.
(b) To exercise a repurchase right pursuant to Section 3.1 or Section 3.2right, a Holder shall deliver to the Paying Agent Trustee on or before the 30th day after the date of the Company Notice (i) written notice (in the case of a repurchase pursuant to Section 3.1, a "Repurchase Notice" and, in the case of a repurchase pursuant to Section 3.2, a "Fundamental Change Repurchase Notice") of the Holder's exercise of such right, which notice shall set forth the name of the Holder, the principal amount of the Securities to be repurchased (and, if any Security is to repurchased in part, the serial number thereof, the portion of the principal amount thereof to be repurchased (which portion must be in principal amounts of $1,000 or a whole multiple of $1,000) and the name of the Person in which the portion thereof to remain outstanding Outstanding after such repurchase is to be registered), if certificated, the certificate numbers of the Securities to be repurchased, ) and a statement that an election to exercise the repurchase right pursuant to the terms and conditions specified in the Securities and the Indenture is being made thereby, and, in the event that any portion of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, shall be paid in shares of Common Stock, the name or names (with addresses) in which the certificate or certificates for shares of Common Stock shall be issued, and (ii) the Securities with respect to which the Repurchase Notice or Fundamental Change Repurchase Notice relates at any time after delivery repurchase right is being exercised. Such written notice shall be irrevocable, except that the right of the Repurchase Notice or the Fundamental Change Repurchase Notice, as the case may be (together with all necessary endorsements), at the offices of the Paying Agent, such delivery being a condition Holder to receipt by the Holder of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, thereof; provided, however, that such Repurchase Price or Fundamental Change Repurchase Price, as the case may be, shall be so paid pursuant to this Section 3.4(b) only if convert the Securities so delivered with 119 respect to which the Paying Agent shall conform in all respects to the description thereof in the related Repurchase Notice or Fundamental Change Repurchase Notice. In the case of a repurchase right pursuant to Section 3.1 and Section 3.2, such delivery is being exercised shall be at any time from the opening of business on the date that is 20 Business Days prior to the Repurchase Date continue until the close of business on the second Business Day Repurchase Date.
(c) In the event a repurchase right shall be exercised in accordance with the terms hereof, the Company shall pay or cause to be paid to the Trustee the Repurchase Price in cash or shares of Common Stock, as provided above, for payment to the Holder on the Repurchase Date or, if shares of Common Stock are to be paid, as promptly after the Repurchase Date as practicable, together with accrued and unpaid interest to the Repurchase Date payable with respect to the Securities as to which the purchase right has been exercised; provided, however, that installments of interest that mature on or prior to the Repurchase Date shall be payable in cash to the Holders of such Securities, or one or more Predecessor Securities, registered as such at the Fundamental Change close of business on the relevant Regular Record Date.
(d) If any Security (or portion thereof) surrendered for repurchase shall not be so paid on the Repurchase Date, the principal amount of such Security (or portion thereof, as the case may be) shall, subject until paid, bear interest to extension the extent permitted by applicable law from the Repurchase Date at the rate of 7% per annum, and each Security shall remain convertible into Common Stock until the principal of such Security (or portion thereof, as the case may be) shall have been paid or duly provided for.
(e) Any Security which is to comply with be repurchased only in part shall be surrendered to the Trustee (with, if the Company or the Trustee so requires, due endorsement by, or a written instrument of transfer in form satisfactory to the Company and the Trustee duly executed by, the Holder thereof or his attorney duly authorized in writing), and the Company shall execute, and the Trustee shall authenticate and make available for delivery to the Holder of such Security without service charge, a new Security or Securities, containing identical terms and conditions, each in an authorized denomination in aggregate principal amount equal to and in exchange for the unrepurchased portion of the principal of the Security so surrendered.
(f) Any issuance of shares of Common Stock in respect of the Repurchase Price shall be deemed to have been effected immediately prior to the close of business on the Repurchase Date and the Person or Persons in whose name or names any certificate or certificates for shares of Common Stock shall be issuable upon such repurchase shall be deemed to have become on the Repurchase Date the holder or holders of record of the shares represented thereby; provided, however, that any surrender for repurchase on a date when the stock transfer books of the Company shall be closed shall constitute the Person or Persons in whose name or names the certificate or certificates for such shares are to be issued as the record holder or holders thereof for all purposes at the opening of business on the next succeeding day on which such stock transfer books are open. No payment or adjustment shall be made for dividends or distributions on any Common Stock issued upon repurchase of any Security declared prior to the Repurchase Date.
(g) No fractions of shares shall be issued upon repurchase of Securities. If more than one Security shall be repurchased from the same Holder and the Repurchase Price shall be 120 payable in shares of Common Stock, the number of full shares which shall be issuable upon such repurchase shall be computed on the basis of the aggregate principal amount of the Securities so repurchased. Instead of any fractional share of Common Stock which would otherwise be issuable on the repurchase of any Security or Securities, the Company will deliver to the applicable lawHolder its check for the current market value of such fractional share. Owners The current market value of beneficial interests in Global a fraction of a share is determined by multiplying the current market price of a full share by the fraction, and rounding the result to the nearest cent. For purposes of this Section, the current market price of a share of Common Stock is the Closing Price Per Share of the Common Stock on the Trading Day immediately preceding the Repurchase Date.
(h) Any issuance and delivery of certificates for shares of Common Stock on repurchase of Securities shall provide be made without charge to the Holder of Securities being repur chased for such certificates or for any tax or duty in respect of the issuance or delivery of such certificates or the securities represented thereby; provided, however, that the Company shall not be required to pay any tax or duty which may be payable in respect of (i) income of the Holder or (ii) any transfer involved in the issuance or delivery of certificates for shares of Common Stock in a Repurchase Notice name other than that of the Holder of the Securities being repurchased, and no such issuance or Fundamental Change Repurchase Notice delivery shall be made unless and until the Person requesting such issuance or delivery has paid to the Company the amount of any such tax or duty or has established, to the satisfaction of the Company, that such tax or duty has been paid.
(i) If shares of Common Stock to be delivered upon repurchase of a Security are to be registered in accordance a name other than that of the beneficial owner of such Security, then such Holder must deliver to the Trustee a Surrender Certificate, dated the date of surrender of such Restricted Security and signed by such beneficial owner, as to compliance with the Applicable Procedures restrictions on transfer applicable to such Restricted Security. Neither the Trustee nor any Registrar or Transfer Agent or other agents shall be required to register in a name other than that of the Depositarybeneficial owner shares of Common Stock issued upon repurchase of any such Restricted Security not so accompanied by a properly completed Surrender Certificate.
(j) All Securities delivered for repurchase shall be delivered to the Trustee to be canceled at the direction of the Trustee, which shall dispose of the same as provided in Section 3.9.
Appears in 1 contract
Samples: Indenture (DSC Communications Corp)
Notices; Method of Exercising Repurchase Right, Etc. (a) Unless the Company shall have theretofore called for redemption all of the outstanding Outstanding Securities, the Company shall give to the Trustee, the Paying Agent and all Holders of Securities, in the manner provided in this Section 3.4, a notice containing the information required pursuant to the following provisions of this Section 3.4(a) (the "Company Notice") (i) on or before the 20th Business Day prior to the Repurchase Date or, in the event of a Fundamental Change arising from a Change of Control, the anticipated Effective Date (but in no event earlier than 45 days prior to the Repurchase Date or anticipated Effective Date, as the case may be), and (ii) within 15 Business Days 30th day after the Company knows or reasonably should know of the occurrence of a Fundamental Change that arises as a result of any Termination of Trading. Prior to or concurrently with the delivery of any Company Noticein Control, the Company will issue a press release or publish such information on the Company's then existing website including the information required to be included in such Company Notice hereunder. The Company shall also deliver a copy of any Company Notice to the Trustee. At or, at the request and expense of the Company on or before the fifth Business Day prior 30th day after such occurrence, the Trustee, shall give to all Holders of Securities, in the manner provided in Section 1.6, notice (the ----------- "Company Notice") of the occurrence of the Change of Control and of the repurchase right set forth herein arising as a result thereof. The Company shall also deliver a copy of such notice of a repurchase right to the date on which the Company Notice is to be mailed, the Trustee shall provide the Company Notice to the Holders in accordance with the provisions of this IndentureTrustee. Each Company Notice notice of a repurchase right shall state:
(i1) the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be,
(ii2) the date by which the repurchase right must be exercised,
(iii3) the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, and whether the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, shall be paid by the Company in cash or by delivery of shares of Common Stock, or a specified combination thereof and the percentage of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, that will be paid in shares of Common Stock (which indication shall be irrevocable, subject to the satisfaction (or waiver) of the conditions set forth in Section 3.3),
(iv) if the notice relates to the occurrence of a Fundamental Change, the events causing the Fundamental Change and the date of the Fundamental Change,
(v) that Securities with respect to which a Holder gives a Repurchase Notice or Fundamental Change Repurchase Notice may be converted only if the Holder withdraws the Repurchase Notice or Fundamental Change Repurchase Notice as to such Securities in accordance with the terms of this Indenture,
(vi4) a description of the procedure that which a Holder must follow to exercise a repurchase right, and the place or places where such Securities Securities, are to be surrendered for payment of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, and accrued but unpaid interest (and Liquidated Damages)interest, if any, to, but excluding, the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be,
(vii5) that on the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be, the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, and accrued but unpaid interest (and Liquidated Damages)interest, if any, to, but excluding, the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be, will become due and payable upon each such Security designated by the Holder to be repurchased, and that interest thereon shall cease to accrue on and after said date,
(viii6) the Conversion Price Rate then in effect, the date on which the right to convert the principal amount of the Securities to be repurchased will terminate and the place or places where such Securities may be surrendered for conversion,
(ix7) the place or places that the Security certificate (including the Notice of Election of Holder to Require Repurchase attached thereto) and the Repurchase Notice (as defined below) provided in Section 2.2, shall be delivered, and, if the Security is a Restricted Security, the place or places that the Transfer Certificate in and the form set forth in Exhibit C, required by Section 2.12 shall be delivered,
(x) the name and address of the Paying Agent and Conversion Agent----------- such notice, and
(xi) if 8) the notice relates to a Fundamental Change, the estimated amount of any Make-Whole Premium and the respective percentages CUSIP number or numbers of such Make-Whole Premium that will be paid (as contemplated by Section 6.1(b)) in shares of Common Stock and in cash (which indication shall be irrevocable), subject to the satisfaction (or waiver) of the conditions set forth in Section 6.1(c), in the event that a Holder should, in lieu of electing to have Securities repurchased on the Fundamental Change Repurchase Date, elect to convert such Securities during the Fundamental Change Conversion Period, and
(xii) any other information to be included therein pursuant to Section 6.1Securities. No failure of the Company to give the foregoing notices or defect therein shall limit any Holder's right to exercise a repurchase right or affect the validity of the proceedings for the repurchase of Securities. If any of the foregoing provisions or other provisions of this Article III are inconsistent with applicable law, such law shall govern.
(b) To exercise a repurchase right pursuant to Section 3.1 or Section 3.2right, a Holder shall deliver to the Paying Agent Trustee on or before the 30th day after the date of the Company Notice (i) written notice (in the case of a repurchase pursuant to Section 3.1, a "Repurchase Notice" and, in the case of a repurchase pursuant to Section 3.2, a "Fundamental Change Repurchase Notice") of the Holder's exercise of such right, which notice shall set forth the name of the Holder, the principal amount of the Securities to be repurchased (and, if any Security is to repurchased in part, the serial number thereof, the portion of the principal amount thereof to be repurchased (which portion must be in principal amounts of $1,000 or a whole multiple of $1,000) and the name of the Person in which the portion thereof to remain outstanding Outstanding after such repurchase is to be registered), if certificated, the certificate numbers of the Securities to be repurchased, ) and a statement that an election to exercise the repurchase right pursuant to the terms and conditions specified in the Securities and the Indenture is being made thereby, and, in the event that any portion of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, shall be paid in shares of Common Stock, the name or names (with addresses) in which the certificate or certificates for shares of Common Stock shall be issued, and (ii) the Securities with respect to which the Repurchase Notice or Fundamental Change Repurchase Notice relates at any time after delivery repurchase right is being exercised. Such written notice shall be irrevocable, except that the right of the Repurchase Notice or the Fundamental Change Repurchase Notice, as the case may be (together with all necessary endorsements), at the offices of the Paying Agent, such delivery being a condition Holder to receipt by the Holder of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, thereof; provided, however, that such Repurchase Price or Fundamental Change Repurchase Price, as the case may be, shall be so paid pursuant to this Section 3.4(b) only if convert the Securities so delivered with respect to which the Paying Agent shall conform in all respects to the description thereof in the related Repurchase Notice or Fundamental Change Repurchase Notice. In the case of a repurchase right pursuant to Section 3.1 and Section 3.2, such delivery is being exercised shall be at any time from the opening of business on the date that is 20 Business Days prior to the Repurchase Date continue until the close of business on the second Business Day Repurchase Date.
(c) In the event a repurchase right shall be exercised in accordance with the terms hereof, the Company shall pay or cause to be paid to the Trustee the Repurchase Price in cash or shares of Common Stock, as provided above, for payment to the Holder on the Repurchase Date or, if shares of Common Stock are to be paid, as promptly after the Repurchase Date as practicable, together with accrued and unpaid interest to the Repurchase Date payable with respect to the Securities as to which the purchase right has been exercised; provided, however, -------- ------- that installments of interest that mature on or prior to the Repurchase Date shall be payable in cash to the Holders of such Securities, or one or more Predecessor Securities, registered as such at the Fundamental Change close of business on the relevant Regular Record Date.
(d) If any Security (or portion thereof) surrendered for repurchase shall not be so paid on the Repurchase Date, the principal amount of such Security (or portion thereof, as the case may be) shall, subject until paid, bear interest to extension the extent permitted by applicable law from the Repurchase Date at the rate of __% per annum, and each Security shall remain convertible into Common Stock until the principal of such Security (or portion thereof, as the case may be) shall have been paid or duly provided for.
(e) Any Security that is to comply with be repurchased only in part shall be surrendered to the Trustee (with, if the Company or the Trustee so requires, due endorsement by, or a written instrument of transfer in form satisfactory to the Company and the Trustee duly executed by, the Holder thereof or his attorney duly authorized in writing), and the Company shall execute, and the Trustee shall authenticate and make available for delivery to the Holder of such Security without service charge, a new Security or Securities, containing identical terms and conditions, each in an authorized denomination in aggregate principal amount equal to and in exchange for the unrepurchased portion of the principal of the Security so surrendered.
(f) Any issuance of shares of Common Stock in respect of the Repurchase Price shall be deemed to have been effected immediately prior to the close of business on the Repurchase Date and the Person or Persons in whose name or names any certificate or certificates for shares of Common Stock shall be issuable upon such repurchase shall be deemed to have become on the Repurchase Date the holder or holders of record of the shares represented thereby; provided, -------- however, that any surrender for repurchase on a date when the stock transfer ------- books of the Company shall be closed shall constitute the Person or Persons in whose name or names the certificate or certificates for such shares are to be issued as the record holder or holders thereof for all purposes at the opening of business on the next succeeding day on which such stock transfer books are open. No payment or adjustment shall be made for dividends or distributions on any Common Stock issued upon repurchase of any Security declared prior to the Repurchase Date.
(g) No fractions of shares shall be issued upon repurchase of Securities. If more than one Security shall be repurchased from the same Holder and the Repurchase Price shall be payable in shares of Common Stock, the number of full shares which shall be issuable upon such repurchase shall be computed on the basis of the aggregate principal amount of the Securities so repurchased. Instead of any fractional share of Common Stock that would otherwise be issuable on the repurchase of any Security or Securities, the Company will deliver to the applicable lawHolder its check for the current market value of such fractional share. Owners The current market value of beneficial interests in Global a fraction of a share is determined by multiplying the current market price of a full share by the fraction, and rounding the result to the nearest cent. For purposes of this Section, the current market price of a share of Common Stock is the Closing Price Per Share of the Common Stock on the Trading Day immediately preceding the Repurchase Date.
(h) Any issuance and delivery of certificates for shares of Common Stock on repurchase of Securities shall provide a Repurchase Notice be made without charge to the Holder of Securities being repur chased for such certificates or Fundamental Change Repurchase Notice for any tax or duty in accordance with the Applicable Procedures respect of the Depositaryissuance or delivery of such certificates or the securities represented thereby; provided, however, that the Company shall not be required -------- ------- to pay any tax or duty which may be payable in respect of (i) income of the Holder or (ii) any transfer involved in the issuance or delivery of certificates for shares of Common Stock in a name other than that of the Holder of the Securities being repurchased, and no such issuance or delivery shall be made unless and until the Person requesting such issuance or delivery has paid to the Company the amount of any such tax or duty or has established, to the satisfaction of the Company, that such tax or duty has been paid.
(i) All Securities delivered for repurchase shall be delivered to the Trustee to be canceled at the direction of the Trustee, which shall dispose of the same as provided in Section 3.9. ----------- -126-
Appears in 1 contract
Samples: Indenture (Digital Island Inc)
Notices; Method of Exercising Repurchase Right, Etc. (a1) Unless the Company shall have theretofore called for redemption all of the outstanding Outstanding Securities, the Company shall give to the Trustee, the Paying Agent and all Holders of Securities, in the manner provided in this Section 3.41.6, a notice containing the information required pursuant to the following provisions of this Section 3.4(a) (the "Company Notice") (i) ). In connection with providing such Company Notice, the Company shall, on or before the 20th Business Day prior to the Repurchase Date or, in or on or before the event 30th day after the occurrence of a Fundamental Change arising from a Change of in Control, the anticipated Effective Date (but in no event earlier than 45 days prior to the Repurchase Date or anticipated Effective Date, as the case may be), and (ii) within 15 Business Days after the Company knows or reasonably should know of the occurrence of a Fundamental Change that arises as a result of any Termination of Trading. Prior to or concurrently with the delivery of any Company Notice, the Company will issue a press release Press Release or publish such information on the Company's then existing website including the information required to be included in such Company Notice hereunder. The Company shall also deliver a copy of any Company Notice to the Trustee. At the request and expense of the Company on or before the fifth Business Day prior to the date on which the Company Notice is to be mailed, the Trustee shall provide give the Company Notice to the Holders in accordance with the provisions of this IndentureHolders. Each Company Notice shall state:
(iA) the Repurchase Date or the Fundamental Change in Control Repurchase Date, as the case may be,
(iiB) the date by which the repurchase right must be exercised,
(iiiC) the Repurchase Price Price, or the Fundamental Change in Control Repurchase Price, as the case may be, and whether the Repurchase Price Price, or the Fundamental Change in Control Repurchase Price, as the case may be, shall be paid by the Company in cash or by delivery of shares of Common Stock, or a specified combination thereof (and the percentage applicable ratio of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, that will be paid in shares of cash and Common Stock (which indication shall be irrevocable, subject to the satisfaction (or waiver) of the conditions set forth in Section 3.3Stock),
(ivD) if the notice relates to the occurrence of a Fundamental ChangeChange in Control, the events causing the Fundamental Change in Control and the date of the Fundamental ChangeChange in Control,
(v) that Securities with respect to which a Holder gives a Repurchase Notice or Fundamental Change Repurchase Notice may be converted only if the Holder withdraws the Repurchase Notice or Fundamental Change Repurchase Notice as to such Securities in accordance with the terms of this Indenture,
(viE) a description of the procedure that a Holder must follow to exercise a repurchase right, and the place or places where such Securities are to be surrendered for payment of the Repurchase Price or the Fundamental Change in Control Repurchase Price, as the case may be, and accrued -92- but unpaid interest (including Liquidated Damages), if any, to the Repurchase Date or the Change in Control Repurchase Date, as the case may be,
(F) that on the Repurchase Date or the Change in Control Repurchase Date, as the case may be, the Repurchase Price or the Change in Control Repurchase Price, as the case may be, and accrued but unpaid interest (and including Liquidated Damages), if any, to, but excluding, to the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be,
(vii) that on the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be, the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, and accrued but unpaid interest (and Liquidated Damages), if any, to, but excluding, the Repurchase Date or the Fundamental Change in Control Repurchase Date, as the case may be, will become due and payable upon each such Security designated by the Holder to be repurchased, and that interest thereon shall cease to accrue on and after said date,
(viiiG) the Conversion Price Rate then in effect, the date on which the right to convert the principal amount of the Securities to be repurchased will terminate and the place or places where such Securities may be surrendered for conversion,
(ixH) the place or places that the Security certificate (including with the Election of Holder to Require Repurchase attached thereto) and the Repurchase Notice (as defined below) specified in Section 2.2 shall be delivered, and, if the Security is a Restricted SecuritySecurities Certificate, the place or places that the Transfer Surrender Certificate in the form set forth in Exhibit C, required by Section 2.12 14.4 shall be delivered,, and
(xI) the name and address of the Paying Agent and Conversion Agent, and
(xi) if the notice relates to a Fundamental Change, the estimated amount of any Make-Whole Premium and the respective percentages of such Make-Whole Premium that will be paid (as contemplated by Section 6.1(b)) in shares of Common Stock and in cash (which indication shall be irrevocable), subject to the satisfaction (or waiver) of the conditions set forth in Section 6.1(c), in the event that a Holder should, in lieu of electing to have Securities repurchased on the Fundamental Change Repurchase Date, elect to convert such Securities during the Fundamental Change Conversion Period, and
(xii) any other information to be included therein pursuant to Section 6.1. No failure of the Company to give the foregoing notices or defect therein shall limit any Holder's right to exercise a repurchase right or affect the validity of the proceedings for the repurchase of Securities. If any of the foregoing provisions or other provisions of this Article III are inconsistent with applicable law, such law shall govern.
(b2) To exercise a repurchase right pursuant to Section 3.1 14.1 or Section 3.214.2, a Holder shall deliver to the Paying Agent Trustee (i) written notice (in the case of a repurchase pursuant to Section 3.1, a "Repurchase Notice" and, in the case of a repurchase pursuant to Section 3.2, a "Fundamental Change Repurchase Notice") of the Holder's exercise of such right, which notice shall set forth the name of the Holder, the principal amount of the Securities to be repurchased (and, if any Security is to repurchased in part, the serial number thereof, the portion of the principal amount thereof to be repurchased (which portion must be in principal amounts of $1,000 or a whole multiple of $1,000) and the name of the Person in which the portion thereof to remain outstanding Outstanding after such repurchase is to be registered), if certificated, the certificate numbers of the Securities to be repurchased, ) and a statement that an election to exercise the repurchase right pursuant to the terms and conditions specified in the Securities and the Indenture is being made thereby, and, in the event that any portion of the Repurchase Price or the Fundamental Change in Control Repurchase Price, as the case may be, shall be paid in shares of Common Stock, the name or names (with addresses) in which the certificate or certificates for shares of Common Stock shall be issued, and (ii) book-entry transfer or delivery of such Security to the Securities to which the Repurchase Notice or Fundamental Change Repurchase Notice relates Paying Agent at any time after delivery of the Repurchase Notice or the Fundamental Change Repurchase Notice, as the case may be (together with all necessary endorsements), ) at the offices of the Paying Agent, such delivery being a condition to receipt by the Holder of the Repurchase Price therefor or the Fundamental Change in Control Repurchase PricePrice therefor, as the case may be, thereof; providedPROVIDED, howeverHOWEVER, that such Repurchase Price or Fundamental Change in Control Repurchase Price, as the case may be, shall be so paid pursuant to this Section 3.4(b) only if the Securities Security so delivered to the Paying Agent shall conform in all respects to the description thereof in the related Repurchase Notice or Fundamental Change Repurchase Notice. In the -93- case of a repurchase right pursuant to Section 3.1 and Section 3.214.1, such delivery shall be at any time from the opening of business on the date that is 20 Business Days prior to the Repurchase Date until the close of business on the second fifth Business Day prior to the Repurchase Date and in the case of a repurchase right pursuant to Section 14.2, such delivery shall be on or before the Fundamental 35th day after the date of the Company Notice. A repurchase notice given by a Holder in accordance with this Section may be withdrawn by means of a written notice of withdrawal delivered to the office of the Paying Agent at any time prior to the close of business on the day that is two Business Days before the Repurchase Date or Change in Control Repurchase Date, as the case may be, specifying:
(A) the certificate number, if any, of the Security in respect of which such notice of withdrawal is being submitted, or the appropriate Depositary procedures if Certificated Securities have not been issued,
(B) the principal amount of the Security with respect to which such notice of withdrawal is being submitted, and
(C) the principal amount, if any, of such Security which remains subject to extension the original Repurchase Notice and which has been or will be delivered for purchase by the Company. The Company may, in its sole and complete discretion, accept a written notice of withdrawal on or after the close of business on the day that is two Business Days prior to comply the Repurchase Date or a Change in Control Repurchase Date, as the case may be. The decision of the Company to accept or reject such a withdrawal notice shall be conclusive and binding on the Holder proposing to make the withdrawal.
(3) There shall be no purchase of any Securities pursuant to this Article if an Event of Default has occurred and is continuing (other than a default that is cured by the payment of the Repurchase Price or Change in Control Repurchase Price, as the case be). The Paying Agent shall promptly return to the respective Holders thereof any Notes (i) with applicable law. Owners of beneficial interests in Global Securities shall provide respect to which a Repurchase Notice or Fundamental Change in Control Repurchase Notice, as the case may be, has been withdrawn in compliance with this Indenture or (ii) held by it during the continuance of an Event of Default (other than a default that is cured by the payment of the Repurchase Price or Change in Control Repurchase Price, as the case may be ) in which case, upon such return, the Repurchase Notice or Change in Control Repurchase Notice with respect thereto shall be deemed to have been withdrawn.
(4) In the event a repurchase right shall be exercised in accordance with the Applicable Procedures terms hereof, the Company shall pay or cause to be paid to the Trustee the Repurchase Price or the Change in Control Repurchase Price, as the case may be, in cash or shares of Common Stock, as provided in Section 14.3, for payment to the Holder on the Repurchase Date or the Change in Control Repurchase Date, as the case may be, or, if shares of Common Stock are to be paid, on the date that is 35 days after the date of the DepositaryCompany's Notice, together with accrued and unpaid interest to the Repurchase Date or the Change in Control Repurchase Date, as the case may be, payable with respect to the Securities as to which the repurchase right has been exercised; PROVIDED, HOWEVER, that installments of interest that mature on or prior to the Repurchase Date or the Change in Control -94- Repurchase Date, as the case may be, shall be payable in cash to the Holders of such Securities, or one or more Predecessor Securities, registered as such at the close of business on the relevant Regular Record Date.
(5) If any Security (or portion thereof) surrendered for repurchase shall not be so paid on the Repurchase Date or the Change in Control Repurchase Date, as the case may be, the principal amount of such Security (or portion thereof, as the case may be) shall, until paid, bear interest to the extent permitted by applicable law from the Repurchase Date or the Change in Control Repurchase Date, as the case may be, at the rate then in effect per annum, and each Security shall remain convertible into Common Stock until the principal of such Security (or portion thereof, as the case may be) shall have been paid or duly provided for.
(6) Any Security that is to be repurchased only in part shall be surrendered to the Trustee (with, if the Company or the Trustee so requires, due endorsement by, or a written instrument of transfer in form satisfactory to the Company and the Trustee duly executed by, the Holder thereof or his attorney duly authorized in writing), and the Company shall execute, and the Trustee shall authenticate and make available for delivery to the Holder of such Security without service charge, a new Security or Securities, containing identical terms and conditions, each in an authorized denomination in aggregate principal amount equal to and in exchange for the unrepurchased portion of the principal of the Security so surrendered.
(7) Any issuance of shares of Common Stock in respect of the Repurchase Price or the Change in Control Repurchase Price, as the case may be, shall be deemed to have been effected immediately prior to the close of business on the Repurchase Date or the Change in Control Repurchase Date, as the case may be, and the Person or Persons in whose name or names any certificate or certificates for shares of Common Stock shall be issuable upon such repurchase shall be deemed to have become on the Repurchase Date or the Change in Control Repurchase Date, as the case may be, the holder or holders of record of the shares represented thereby; PROVIDED, HOWEVER, that any surrender for repurchase on a date when the stock transfer books of the Company shall be closed shall constitute the Person or Persons in whose name or names the certificate or certificates for such shares are to be issued as the record holder or holders thereof for all purposes at the opening of business on the next succeeding day on which such stock transfer books are open. No payment or adjustment shall be made for dividends or distributions on any Common Stock issued upon repurchase of any Security declared prior to the Repurchase Date or the Change in Control Repurchase Date, as the case may be.
(8) No fractions of shares shall be issued upon repurchase of Securities. If more than one Security shall be repurchased from the same Holder and the Repurchase Price or the Change in Control Repurchase Price, as the case may be, shall be payable in shares of Common Stock, then the number of full shares that shall be issuable upon such repurchase shall be computed on the basis of the aggregate principal amount of the Securities so repurchased. Instead of any fractional share of Common Stock that would otherwise be issuable on the repurchase of any Security or Securities, the Company will deliver to the applicable Holder its check for the current market value of such fractional share. The current market value of a fraction of a share is determined by multiplying the current market price of a full share by the fraction, and rounding the result to the nearest cent. For purposes of this Section, the current market price of a share of Common Stock is the Closing Price Per Share of the Common Stock on the Trading Day immediately preceding the Repurchase Date or the Change in Control Repurchase Date, as the case may be.
(9) Any issuance and delivery of certificates for shares of Common Stock on repurchase of Securities shall be made without charge to the Holder of Securities being repurchased for such certificates or for any tax or duty in respect of the issuance or delivery of such certificates or the securities represented thereby; PROVIDED, HOWEVER, that the Company shall not be required to pay any tax or duty that may be payable in respect of (i) income of the Holder or (ii) any transfer involved in the issuance or delivery of certificates for shares of Common Stock in a name other than that of the Holder of the Securities being repurchased, and no such issuance or delivery shall be made unless and until the Person requesting such issuance or delivery has paid to the Company the amount of any such tax or duty or has established, to the satisfaction of the Company, that such tax or duty has been paid.
(10) If shares of Common Stock to be delivered upon repurchase of a Restricted Security are to be registered in a name other than that of the beneficial owner of such Security, then such Holder must deliver to the Trustee a Surrender Certificate, dated the date of surrender of such Restricted Security and signed by such beneficial owner, as to compliance with the restrictions on transfer applicable to such Restricted Security. Neither the Trustee nor any Registrar or Transfer Agent or other agents shall be required to register in a name other than that of the beneficial owner shares of Common Stock issued upon repurchase of any such Restricted Security not so accompanied by a properly completed Surrender Certificate.
(11) All Securities delivered for repurchase shall be delivered to the Trustee to be canceled at the direction of the Trustee, which shall dispose of the same as provided in Section 3.9.
Appears in 1 contract
Samples: Indenture (Priceline Com Inc)
Notices; Method of Exercising Repurchase Right, Etc. (a) Unless the Company shall have theretofore called for redemption all of the outstanding Outstanding Securities, on or before the 15th Business Day after the occurrence of a Change in Control, the Company shall give notice to the Trustee, the Paying Agent and all Holders of Securities, in the manner provided in this Section 3.4, a notice containing Securities and the information required pursuant to the following provisions of this Section 3.4(a) Trustee (the "Company Notice") (i) on or before the 20th Business Day prior to the Repurchase Date or, in the event of a Fundamental Change arising from a Change of Control, the anticipated Effective Date (but in no event earlier than 45 days prior to the Repurchase Date or anticipated Effective Date, as the case may be), and (ii) within 15 Business Days after the Company knows or reasonably should know of the occurrence of a Fundamental the Change that arises in Control and of the repurchase right set forth herein arising as a result of any Termination of Trading. Prior to or concurrently with the delivery of any Company Notice, the Company will issue a press release or publish such information on the Company's then existing website including the information required to be included in such Company Notice hereunder. The Company shall also deliver a copy of any Company Notice to the Trustee. At the request and expense of the Company on or before the fifth Business Day prior to the date on which the Company Notice is to be mailed, the Trustee shall provide the Company Notice to the Holders in accordance with the provisions of this Indenturethereof. Each Company Notice shall state:
(i) the Repurchase Date or date of such Change in Control and, briefly, the Fundamental events causing such Change Repurchase Date, as the case may be,in Control;
(ii) the date by which the repurchase right Change in Control Purchase Notice (as defined below) must be exercised,delivered;
(iii) the Repurchase Price or Date;
(iv) the Fundamental Change Repurchase Price, as the case may be, and whether the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, shall be paid by the Company in cash or by delivery of shares of Common Stock, or a specified combination thereof and the percentage of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, that will be paid in shares of Common Stock (which indication shall be irrevocable, subject to the satisfaction (or waiver) of the conditions set forth in Section 3.3),
(iv) if the notice relates to the occurrence of a Fundamental Change, the events causing the Fundamental Change and the date of the Fundamental Change,;
(v) that Securities with respect to which a Holder gives a Repurchase Notice or Fundamental Change Repurchase Notice may be converted only if the Holder withdraws the Repurchase Notice or Fundamental Change Repurchase Notice as to such Securities in accordance with the terms of this Indenture,
(vi) a description of the procedure that a Holder must follow to exercise a repurchase right, and ;
(vi) the procedures for withdrawing a Change in Control Purchase Notice;
(vii) the place or places where such Securities are to be surrendered for payment of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, and accrued but unpaid interest (and Liquidated Damages), if any, to, but excluding, the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be,
(vii) that on the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be, the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, and accrued but unpaid interest (and Liquidated Damages), if any, to, but excluding, the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be, will become due and payable upon each such Security designated by the Holder to be repurchased, and that interest thereon shall cease to accrue on and after said date,for conversion;
(viii) briefly, the Conversion Price then in effect,conversion rights of Holders of Securities;
(ix) the place or places that the Security certificate (including the Election of Holder to Require Repurchase attached Conversion Price and any adjustments thereto) and the Repurchase Notice (as defined below) shall be delivered, ; and, if the Security is a Restricted Security, the place or places that the Transfer Certificate in the form set forth in Exhibit C, required by Section 2.12 shall be delivered,
(x) that Holders who want to convert Securities must satisfy the name and address of the Paying Agent and Conversion Agent, and
(xi) if the notice relates to a Fundamental Change, the estimated amount of any Make-Whole Premium and the respective percentages of such Make-Whole Premium that will be paid (as contemplated by Section 6.1(b)) in shares of Common Stock and in cash (which indication shall be irrevocable), subject to the satisfaction (or waiver) of the conditions requirements set forth in Section 6.1(c), in the event that Securities. The Company will cause a Holder should, in lieu of electing to have Securities repurchased on the Fundamental Change Repurchase Date, elect to convert such Securities during the Fundamental Change Conversion Period, and
(xii) any other information to be included therein pursuant to Section 6.1. No failure copy of the Company Notice to give the foregoing notices be published in The Wall Street Journal or defect therein shall limit any Holder's right to exercise a repurchase right or affect the validity another daily newspaper of the proceedings for the repurchase of Securities. If any of the foregoing provisions or other provisions of this Article III are inconsistent with applicable law, such law shall governnational circulation.
(b) To exercise a repurchase right pursuant to Section 3.1 or Section 3.2right, a Holder shall must deliver to the Trustee or a Paying Agent (i) or an office or agency maintained by the Company for such purpose in the Borough of Manhattan, The City of New York, prior to the close of business on or before the Repurchase Date written notice (in the case of a repurchase pursuant to Section 3.1, a "Repurchase Notice" and, in the case of a repurchase pursuant to Section 3.2, a "Fundamental Change Repurchase Notice") of the Holder's exercise of such rightright (the "Change in Control Purchase Notice"), which notice shall set forth (i) the name of the Holder, (ii) the certificate numbers of the Securities with respect to which the repurchase right is being exercised, (iii) the principal amount of the Securities to be repurchased (and, if any Security is to be repurchased in part, the portion of the principal amount thereof to be repurchased (repurchased, which portion must shall be in principal amounts of $1,000 or a whole multiple integral multiples of $1,000) and the name of the Person in which the portion thereof to remain outstanding after such repurchase is to be registered), if certificated, the certificate numbers of the Securities to be repurchased, and (iv) a statement that an election to exercise the repurchase right is being made thereby pursuant to the terms applicable provisions of the Securities.
(c) On or prior to the Repurchase Date, the Company shall deposit with the Trustee or with the Paying Agent (or, if the Company is acting as its own Paying Agent, segregate and conditions specified hold in trust as provided in Section 9.03) an amount of money sufficient to pay the Repurchase Price of the Securities and that are to be repaid on the Indenture Repurchase Date. On the Repurchase Date, the Trustee, a Paying Agent (or, if the Company is being made therebyacting as its own Paying Agent, and, in the Company) shall repurchase all such Securities validly tendered prior to such date. In the event that a Holder has previously delivered a Change in Control Purchase Notice, but failed to tender the Security with respect to which such Change in Control Purchase Notice relates, then so long as the Trustee or the Paying Agent (or, if the Company is acting as its own Paying Agent, segregate and hold on trust as provided in Section 9.03) holds money sufficient to pay the Repurchase Price in respect of such Security shall cease to be Outstanding for the purposes of this Indenture and all rights of the Holder thereof, other than the right to receive the Repurchase Price together with any accrued interest thereon, shall terminate.
(d) If any Security (or portion thereof) surrendered for repurchase shall not be so paid on the Repurchase Date, the Repurchase Price in respect of such Security shall, until paid, bear interest from the Repurchase Date at the rate borne by the Security and such Security shall remain convertible into Common Stock until the Repurchase Price and any such accrued interest shall have been paid or duly provided for.
(e) Any Security that is to be repurchased only in part shall be surrendered to the Trustee or any such Paying Agent and the Company shall execute, and the Trustee shall authenticate and deliver to the Holder of such Security without service charge, a new Security or Securities, containing identical terms and conditions, each in an authorized denomination in aggregate principal amount equal to and in exchange for the portion of the principal of the Security so surrendered that was not repurchased.
(f) Any Holder that has delivered a Change in Control Purchase Notice shall have the right to withdraw such notice at any time prior to the close of business on the Repurchase Date by delivery of a written notice of withdrawal to the Trustee or any such Paying Agent prior to the close of business on the Repurchase Date. The notice of withdrawal shall state the principal amount and the certificate numbers of the Securities as to which the withdrawal notice relates and the principal amount, if any, that remains subject to the notice of exercise of a repurchase right. A Security in respect of which a Holder has exercised its option to require repurchase upon a Change in Control may thereafter be converted into Common Stock only if such Holder withdraws its Change in Control Purchase Notice in accordance with the preceding sentence.
(g) Any issuance of shares of Common Stock in respect of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, shall be paid deemed to have been effected immediately prior to the close of business on the Repurchase Date and the person or persons in shares of Common Stock, the whose name or names (with addresses) in which the any certificate or certificates for shares of Common Stock shall be issued, and (ii) the Securities issuable upon such repurchase shall be deemed to which have become on the Repurchase Notice Date the holder or Fundamental Change Repurchase Notice relates at any time after delivery holders of record of the Repurchase Notice or the Fundamental Change Repurchase Notice, as the case may be (together with all necessary endorsements), at the offices of the Paying Agent, such delivery being a condition to receipt by the Holder of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, thereofshares represented thereby; provided, however, that any surrender for repurchase on a date when the stock transfer books of the Company shall be closed shall constitute the person or persons in whose name or names the certificate or certificates for such Repurchase Price or Fundamental Change Repurchase Price, shares are to be issued as the case may be, shall be so paid pursuant to this Section 3.4(b) only if the Securities so delivered to the Paying Agent shall conform in record holder or holders thereof for all respects to the description thereof in the related Repurchase Notice or Fundamental Change Repurchase Notice. In the case of a repurchase right pursuant to Section 3.1 and Section 3.2, such delivery shall be purposes at any time from the opening of business on the date next succeeding day on which such stock transfer books are open.
(h) No fractional shares of Common Stock or scrip representing fractional shares shall be issued upon repurchase of Securities. If more than one Security shall be repurchased from the same holder and the Repurchase Price shall be payable in shares of Common Stock, the number of full shares that is 20 Business Days prior shall be issued upon repurchase shall be computed on the basis of the aggregate principal amount of the Securities (or specified portions thereof to the Repurchase Date until extent permitted hereby) so repurchased from such Holder. If any fractional share of stock otherwise would be issuable upon repurchase of any Security or Securities, the close Company shall make an adjustment therefor in cash at the price per share at which the Common Stock is valued for purposes of business on the second Business Day prior to the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be, subject to extension to comply with applicable law. Owners of beneficial interests in Global Securities shall provide a Repurchase Notice or Fundamental Change Repurchase Notice in accordance with the Applicable Procedures of the Depositary.Section 11.01
Appears in 1 contract
Samples: Indenture (Earthweb Inc)
Notices; Method of Exercising Repurchase Right, Etc. (a1) Unless the Company shall have theretofore called for redemption redemption, all of the outstanding Outstanding Securities, the Company shall give to the Trustee, the Paying Agent and all Holders of Securities, in the manner provided in this Section 3.4, a notice containing the information required pursuant to the following provisions of this Section 3.4(a) (the "Company Notice") (i) on or before the 20th Business Day prior to the Repurchase Date or, in the event of a Fundamental Change arising from a Change of Control, the anticipated Effective Date (but in no event earlier than 45 days prior to the Repurchase Date or anticipated Effective Date, as the case may be), and (ii) within 15 Business Days 30th day after the Company knows or reasonably should know of the occurrence of a Fundamental Change that arises as a result of any Termination of Trading. Prior to or concurrently with the delivery of any Company Noticein Control, the Company will issue a press release or publish such information on the Company's then existing website including the information required to be included in such Company Notice hereunder. The Company shall also deliver a copy of any Company Notice to the Trustee. At or, at the request and expense of the Company on or before the fifth Business Day prior 30th day after such occurrence, the Trustee, shall give to all Holders of Securities, in the manner provided in Section 1.6, notice (the "Company Notice") of the occurrence of the Change of Control and of the repurchase right set forth herein arising as a result thereof. The Company shall also deliver a copy of such notice of a repurchase right to the date on which the Company Notice is to be mailed, the Trustee shall provide the Company Notice to the Holders in accordance with the provisions of this IndentureTrustee. Each Company Notice notice of a repurchase right shall state:
(i) the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be,
(ii) the date by which the repurchase right must be exercised,
(iii) the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, and whether the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, shall be paid by the Company in cash or by delivery of shares of Common Stock, or a specified combination thereof and the percentage of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, that will be paid in shares of Common Stock (which indication shall be irrevocable, subject to the satisfaction (or waiver) of the conditions set forth in Section 3.3),
(iv) if the notice relates to the occurrence of a Fundamental Change, the events causing the Fundamental Change and the date of the Fundamental Change,
(v) that Securities with respect to which a Holder gives a Repurchase Notice or Fundamental Change Repurchase Notice may be converted only if the Holder withdraws the Repurchase Notice or Fundamental Change Repurchase Notice as to such Securities in accordance with the terms of this Indenture,
(vi) a description of the procedure that which a Holder must follow to exercise a repurchase right, and the place or places where such Securities are to be surrendered for payment of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, and accrued but unpaid interest (and including Liquidated Damages, if any), if any, to, but excluding, any to the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be,
(viiv) that on the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be, the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, and accrued but unpaid interest (and Liquidated including liquidated Damages, if any), if any, to, but excluding, any to the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be, will become due and payable upon each such Security designated by the Holder to be repurchased, and that interest thereon shall cease to accrue on and after said date,
(viiivi) the Conversion Price Rate then in effect,, the date on which the right to convert the principal amount of the Securities to be repurchased will terminate and the place or places where such Securities may be surrendered for conversion, and
(ixvii) the place or places that the Security certificate (including with the Election of Holder to Require Repurchase attached thereto) and the Repurchase Notice (as defined below) specified in Section 2.2 shall be delivered, and, and if the Security is a Restricted Security, Securities Certificate the place or places that the Transfer Surrender Certificate in the form set forth in Exhibit C, required by Section 2.12 15.3(9) shall be delivered,
(x) the name and address of the Paying Agent and Conversion Agent, and
(xi) if the notice relates to a Fundamental Change, the estimated amount of any Make-Whole Premium and the respective percentages of such Make-Whole Premium that will be paid (as contemplated by Section 6.1(b)) in shares of Common Stock and in cash (which indication shall be irrevocable), subject to the satisfaction (or waiver) of the conditions set forth in Section 6.1(c), in the event that a Holder should, in lieu of electing to have Securities repurchased on the Fundamental Change Repurchase Date, elect to convert such Securities during the Fundamental Change Conversion Period, and
(xii) any other information to be included therein pursuant to Section 6.1. No failure of the Company to give the foregoing notices or defect therein shall limit any Holder's right to exercise a repurchase right or affect the validity of the proceedings for the repurchase of Securities. If any of the foregoing provisions or other provisions of this Article III XV are inconsistent with applicable law, such law shall govern.
(b2) To exercise a repurchase right pursuant to Section 3.1 or Section 3.2right, a Holder shall deliver to the Paying Agent Trustee on or before the 30th day after the date of the Company Notice (i) irrevocable written notice (in the case of a repurchase pursuant to Section 3.1, a "Repurchase Notice" and, in the case of a repurchase pursuant to Section 3.2, a "Fundamental Change Repurchase Notice") of the Holder's exercise of such right, which notice shall set forth the name of the Holder, the principal amount of the Securities to be repurchased (and, if any Security is to be repurchased in part, the serial number thereof, the portion of the principal amount thereof to be repurchased (which portion must be in principal amounts of $1,000 or a whole multiple of $1,000) and the name of the Person in which the portion thereof to remain outstanding Outstanding after such repurchase is to be registered), if certificated, the certificate numbers of the Securities to be repurchased, ) and a statement that an election to exercise the repurchase right pursuant to the terms and conditions specified in the Securities and the Indenture is being made thereby, and, in the event that any portion of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, shall be paid in shares of Common Stock, the name or names (with addresses) in which the certificate or certificates for shares of Common Stock shall be issued, and (ii) the Securities with respect to which the Repurchase Notice or Fundamental Change Repurchase Notice relates at any time after delivery repurchase right is being exercised. Such written notice shall be irrevocable, except that the right of the Repurchase Notice or the Fundamental Change Repurchase Notice, as the case may be (together with all necessary endorsements), at the offices of the Paying Agent, such delivery being a condition Holder to receipt by the Holder of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, thereof; provided, however, that such Repurchase Price or Fundamental Change Repurchase Price, as the case may be, shall be so paid pursuant to this Section 3.4(b) only if convert the Securities so delivered with respect to which the Paying Agent shall conform in all respects to the description thereof in the related Repurchase Notice or Fundamental Change Repurchase Notice. In the case of a repurchase right pursuant to Section 3.1 and Section 3.2, such delivery is being exercised shall be at any time from the opening of business on the date that is 20 Business Days prior to the Repurchase Date continue until the close of business on the second Business Day Repurchase Date.
(3) In the event a repurchase right shall be exercised in accordance with the terms hereof, the Company shall pay or cause to be paid to the Trustee the Repurchase Price in cash or shares of Common Stock, as provided above, for payment to the Holder on the Repurchase Date or, if shares of Common Stock are to be paid, as promptly after the Repurchase Date as practicable, together with accrued and unpaid interest to the Repurchase Date payable with respect to the Securities as to which the repurchase right has been exercised; provided, however, that installments of interest that mature on or prior to the Repurchase Date shall be payable in cash to the Holders of such Securities, or one or more Predecessor Securities, registered as such at the Fundamental Change close of business on the relevant Regular Record Date.
(4) If any Security (or portion thereof) surrendered for repurchase shall not be so paid on the Repurchase Date, the principal amount of such Security (or portion thereof, as the case may be) shall, subject until paid, bear interest to extension the extent permitted by applicable law from the Repurchase Date at the rate of 5% per annum, and each Security shall remain convertible into Common Stock until the principal of such Security (or portion thereof, as the case may be) shall have been paid or duly provided for.
(5) Any Security which is to comply with be repurchased only in part shall be surrendered to the Trustee (with, if the Company or the Trustee so requires, due endorsement by, or a written instrument of transfer in form satisfactory to the Company and the Trustee duly executed by, the Holder thereof or his attorney duly authorized in writing), and the Company shall execute, and the Trustee shall authenticate and make available for delivery to the Holder of such Security without service charge, a new Security or Securities, containing identical terms and conditions, each in an authorized denomination in aggregate principal amount equal to and in exchange for the unrepurchased portion of the principal of the Security so surrendered.
(6) Any issuance of shares of Common Stock in respect of the Repurchase Price shall be deemed to have been effected immediately prior to the close of business on the Repurchase Date and the Person or Persons in whose name or names any certificate or certificates for shares of Common Stock shall be issuable upon such repurchase shall be deemed to have become on the Repurchase Date the holder or holders of record of the shares represented thereby; provided, however, that any surrender for repurchase on a date when the stock transfer books of the Company shall be closed shall constitute the Person or Persons in whose name or names the certificate or certificates for such shares are to be issued as the record holder or holders thereof for all purposes at the opening of business on the next succeeding day on which such stock transfer books are open. No payment or adjustment shall be made for dividends or distributions on any Common Stock issued upon repurchase of any Security declared prior to the Repurchase Date.
(7) No fractions of shares shall be issued upon repurchase of Securities. If more than one Security shall be repurchased from the same Holder and the Repurchase Price shall be payable in shares of Common Stock, the number of full shares which shall be issuable upon such repurchase shall be computed on the basis of the aggregate principal amount of the Securities so repurchased. Instead of any fractional share of Common Stock which would otherwise be issuable on the repurchase of any Security or Securities, the Company will deliver to the applicable lawHolder its check for the current market value of such fractional share. Owners The current market value of beneficial interests in Global a fraction of a share is determined by multiplying the current market price of a full share by the fraction, and rounding the result to the nearest cent. For purposes of this Section, the current market price of a share of Common Stock is the Closing Price Per Share of the Common Stock on the Trading Day immediately preceding the Repurchase Date.
(8) Any issuance and delivery of certificates for shares of Common Stock on repurchase of Securities shall provide be made without charge to the Holder of Securities being repurchased for such certificates or for any tax or duty in respect of the issuance or delivery of such certificates or the securities represented thereby; provided, however, that the Company shall not be required to pay any tax or duty which may be payable in respect of (i) income of the Holder or (ii) any transfer involved in the issuance or delivery of certificates for shares of Common Stock in a Repurchase Notice name other than that of the Holder of the Securities being repurchased, -126- and no such issuance or Fundamental Change Repurchase Notice delivery shall be made unless and until the Person requesting such issuance or delivery has paid to the Company the amount of any such tax or duty or has established, to the satisfaction of the Company, that such tax or duty has been paid.
(9) If shares of Common Stock to be delivered upon repurchase of a Security are to be registered in accordance a name other than that of the beneficial owner of such Security, then such Holder must deliver to the Trustee a Surrender Certificate, dated the date of surrender of such Restricted Security and signed by such beneficial owner, as to compliance with the Applicable Procedures restrictions on transfer applicable to such Restricted Security. Neither the Trustee nor any Registrar or Transfer Agent or other agents shall be required to register in a name other than that of the Depositarybeneficial owner shares of Common Stock issued upon repurchase of any such Restricted Security not so accompanied by a properly completed Surrender Certificate.
(10) All Securities delivered for repurchase shall be delivered to the Trustee to be canceled at the direction of the Trustee, which shall dispose of the same as provided in Section 3.9.
Appears in 1 contract
Notices; Method of Exercising Repurchase Right, Etc. (a1) Unless the Company shall have theretofore called for redemption all of the outstanding Securities, the Company shall give to the Trustee, the Paying Agent and all Holders of Securities, in the manner provided in this Section 3.4, a notice containing the information required pursuant to the Within 30 days following provisions of this Section 3.4(a) (the "Company Notice") (i) on or before the 20th Business Day prior to the Repurchase Date or, in the event of a Fundamental Change arising from a any Change of Control, the anticipated Effective Date (but in no event earlier than 45 days prior to the Repurchase Date or anticipated Effective Date, as the case may be), and (ii) within 15 Business Days after the Company knows or reasonably should know of the occurrence of a Fundamental Change that arises as a result of any Termination of Trading. Prior to or concurrently with the delivery of any Company Notice, the Company will issue a press release or publish such information on the Company's then existing website including the information required to be included in such Company Notice hereunder. The Company shall also deliver mail a notice to each Holder (with a copy of any Company Notice to the Trustee. At ) describing the request transaction or transactions that constitute the Change of Control and expense of the Company on or before the fifth Business Day prior to the date on which the Company Notice is to be mailed, the Trustee shall provide the Company Notice to the Holders in accordance with the provisions of this Indenture. Each Company Notice shall statestating:
(i) the Repurchase Date or Date, which shall not be less than 20 Business Days, nor will it exceed 30 Business Days from the Fundamental Change date such notice is mailed (the "Repurchase Date, as the case may be,");
(ii) the date by which the repurchase right must be exercised,;
(iii) the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, and whether the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, shall be paid by the Company in cash or by delivery of shares of Common Stock, or a specified combination thereof and the percentage of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, that will be paid in shares of Common Stock (which indication shall be irrevocable, subject to the satisfaction (or waiver) of the conditions set forth in Section 3.3),;
(iv) if the notice relates to the occurrence of a Fundamental Change, the events causing the Fundamental Change and the date of the Fundamental Change,
(v) that Securities with respect to which a Holder gives a Repurchase Notice or Fundamental Change Repurchase Notice may be converted only if the Holder withdraws the Repurchase Notice or Fundamental Change Repurchase Notice as to such Securities in accordance with the terms of this Indenture,
(vi) a description of the procedure that which a Holder must follow to exercise a repurchase right, and the place or places where where, or procedures by which, such Securities Notes are to be surrendered for payment of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, and accrued but unpaid interest (and Liquidated Damages)interest, if any, to, but excluding, to the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be,;
(viiv) that on the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be, the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, and accrued but unpaid interest (and Liquidated Damages)interest, if any, to, but excluding, to the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be, will become due and payable upon each such Security Note designated by the Holder to be repurchased, and that interest thereon shall cease to accrue on and after said date,;
(viiivi) the Conversion Price Rate then in effect,, the date on which the right to convert the principal amount of the Notes to be repurchased will terminate and the place or places where, or procedures by which, such Notes may be surrendered for conversion;
(ixvii) the place or places that the Security certificate (including Note with the Election "Option of Holder to Require Repurchase attached thereto) and Elect Purchase" as specified on the Repurchase Notice (as defined below) reverse of the Note shall be delivered, and, ;
(viii) that any Note not tendered shall continue to accrue interest;
(ix) that Holders shall be entitled to withdraw their election if the Security is Paying Agent receives, not later than the close of business on the second Business Day preceding the Repurchase Date, a Restricted Securitytelegram, telex, 66 facsimile transmission or letter setting forth the name of the Holder, the place or places principal amount of Notes delivered for purchase, and a statement that such Holder is withdrawing his election to have the Transfer Certificate in the form set forth in Exhibit C, required by Section 2.12 shall be delivered,Notes purchased; and
(x) that Holders whose Notes are being purchased only in part shall be issued new Notes equal in principal amount to the name and address unpurchased portion of the Paying Agent and Conversion AgentNotes surrendered, and
(xi) if the notice relates which unpurchased portion must be equal to a Fundamental Change, the estimated U.S. $1,000 in principal amount of any Make-Whole Premium and the respective percentages of such Make-Whole Premium that will be paid (as contemplated by Section 6.1(b)) in shares of Common Stock and in cash (which indication shall be irrevocable), subject to the satisfaction (or waiver) of the conditions set forth in Section 6.1(c), in the event that a Holder should, in lieu of electing to have Securities repurchased on the Fundamental Change Repurchase Date, elect to convert such Securities during the Fundamental Change Conversion Period, and
(xii) any other information to be included therein pursuant to Section 6.1an integral multiple thereof. No failure of the Company to give the foregoing notices or defect therein shall limit any Holder's right to exercise a repurchase right or affect the validity of the proceedings for the repurchase of SecuritiesNotes. If any of the foregoing provisions or other provisions of this Article III 11 are inconsistent with applicable law, such law shall govern.
(b2) To exercise a repurchase right pursuant to Section 3.1 or Section 3.2right, a Holder shall deliver to the Paying Agent Trustee on or before the date specified in the repurchase notice (i) written notice (in the case of a repurchase pursuant to Section 3.1, a "Repurchase Notice" and, in the case of a repurchase pursuant to Section 3.2, a "Fundamental Change Repurchase Notice") of the Holder's exercise of such right, which notice shall set forth the name of the Holder, the principal amount of the Securities Notes to be repurchased (and, if any Security Note is to repurchased in part, the serial number thereof, the portion of the principal amount thereof to be repurchased (which portion must be in principal amounts of $1,000 or a whole multiple of $1,000) and the name of the Person in which the portion thereof to remain outstanding after such repurchase is to be registered), if certificated, the certificate numbers of the Securities to be repurchased, ) and a statement that an election to exercise the repurchase right pursuant to the terms and conditions specified in the Securities and the Indenture is being made thereby, and, in the event that any portion of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, shall be paid in shares of Common Stock, the name or names (with addresses) in which the certificate or certificates for shares of Common Stock shall be issued, and (ii) the Securities Notes with respect to which the Repurchase Notice or Fundamental Change Repurchase Notice relates at any time after delivery repurchase right is being exercised. The right of the Repurchase Notice or Holder to convert the Fundamental Change Repurchase Notice, as Notes with respect to which the case may be (together with all necessary endorsements), at the offices of the Paying Agent, such delivery being a condition to receipt by the Holder of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, thereof; provided, however, that such Repurchase Price or Fundamental Change Repurchase Price, as the case may be, shall be so paid pursuant to this Section 3.4(b) only if the Securities so delivered to the Paying Agent shall conform in all respects to the description thereof in the related Repurchase Notice or Fundamental Change Repurchase Notice. In the case of a repurchase right pursuant to Section 3.1 and Section 3.2, such delivery is being exercised shall be at any time from the opening of business on the date that is 20 Business Days prior to the Repurchase Date continue until the close of business on the second Business Day prior to the Repurchase Date or Date.
(3) In the Fundamental Change event a repurchase right shall be exercised in accordance with the terms hereof, on the Repurchase Date, the Company shall accept for payment all Notes or portions thereof properly tendered pursuant to the Change of Control Offer, deposit with or pay or cause to be paid to the Trustee the Repurchase Price in cash or shares of Common Stock, as provided above, for payment by the Trustee to the Holder on the Repurchase Date or, if shares of Common Stock are to be paid, as promptly after the Repurchase Date as practicable; provided, however, that installments of interest with a Stated Maturity on or prior to the Repurchase Date shall be payable in cash to the Holders of such Notes, or one or more Predecessor Notes, registered as such at the close of business on the relevant Regular Record Date; and deliver or cause to be delivered to the Trustee the Notes so accepted together with an Officers' Certificate stating the aggregate principal amount of Notes or portions thereof being purchased by the Company.
(4) If any Note (or portion thereof) surrendered for repurchase shall not be so paid on the Repurchase Date, the principal amount of such Note (or portion thereof, as the case may be) shall, subject until paid, bear interest to extension the extent permitted by applicable law from the Repurchase Date at the rate specified therein, and each Note shall remain convertible into Common Stock until the principal of such Note (or portion thereof, as the case may be) shall have been paid or duly provided for.
(5) Any Note which is to comply with applicable lawbe repurchased only in part shall be surrendered to the Trustee (with, if the Company or the Trustee so requires, due endorsement by, or a written instrument of transfer in form satisfactory to the Company and the Trustee duly executed by, the Holder thereof or his attorney duly authorized in writing), and the Company shall execute, and the Trustee shall authenticate and mail (or cause to be transferred by book entry) to the Holder without service charge, a new Note or Notes, containing identical terms and conditions, each in an authorized denomination in aggregate principal amount equal to and in exchange for the unrepurchased portion of the principal of the Note so surrendered; provided that each such new Note shall be in principal amount of U.S. $1,000 or an integral multiple thereof.
(6) Any issuance of shares of Common Stock in respect of the Repurchase Price shall be deemed to have been effected immediately prior to the close of business on the Repurchase Date and the Person or Persons in whose name or names any certificate or certificates for shares of Common Stock shall be issuable upon such repurchase shall be deemed to have become on the Repurchase Date the holder or holders of record of the shares represented thereby; provided, however, that any surrender for repurchase on a date when the stock transfer books of the Company shall be closed shall constitute the Person or Persons in whose name or names the certificate or certificates for such shares are to be issued as the record holder or holders thereof for all purposes at the opening of business on the next succeeding day on which such stock transfer books are open. Owners No payment or adjustment shall be made for dividends or distributions on any Common Stock issued upon repurchase of beneficial interests any Note declared prior to the Repurchase Date.
(7) No fractions of shares shall be issued upon repurchase of Notes. If more than one Note shall be repurchased from the same Holder and the Repurchase Price shall be payable in Global Securities shares of Common Stock, the number of full shares which shall provide be issuable upon such repurchase shall be computed on the basis of the aggregate principal amount of the Notes so repurchased. Instead of any fractional share of Common Stock which would otherwise be issuable on the repurchase of any Note or Notes, the Company shall calculate and pay a cash adjustment in respect of such fraction (calculated to the nearest 1/100th of a share) or round up the number of shares of Common Stock issuable upon conversion to the nearest whole share. The current market value of a fraction of a share is determined by multiplying the current market price of a full share by the fraction, and rounding the result to the nearest cent. For purposes of this Section, the current market price of a share of Common Stock is the Closing Price Per Share of the Common Stock on the Trading Day immediately preceding the Repurchase Notice Date.
(8) Any issuance and delivery of certificates for shares of Common Stock on repurchase of Notes shall be made without charge to the Holder being repurchased for such certificates or Fundamental for any tax or duty in respect of the issuance or delivery of such certificates or the Notes represented thereby; provided, however, that the Company shall not be required to pay any tax or duty which may be payable in respect of (i) income of the Holder or (ii) any transfer involved in the issuance or delivery of certificates for shares of Common Stock in a name other than that of the Holder of the Notes being repurchased, and no such issuance or delivery shall be made unless and until the Person requesting such issuance or delivery has paid to the Company the amount of any such tax or duty or has established, to the satisfaction of the Company, that such tax or duty has been paid.
(9) All Notes delivered for repurchase shall be delivered to the Trustee to be canceled at the direction of the Trustee, which shall dispose of the same as provided in Section 2.12. Notwithstanding any other provision of this Article 11, the Company shall not be required to make a Change Repurchase Notice of Control Offer upon a Change of Control if a third party makes the Change of Control Offer in accordance the manner, at the times and otherwise in compliance with the Applicable Procedures requirements set forth in this Indenture applicable to a Change of Control Offer made by the DepositaryCompany and purchases all Notes validly tendered and not withdrawn under such Change of Control Offer.
Appears in 1 contract
Notices; Method of Exercising Repurchase Right, Etc. (a1) Unless the Company shall have theretofore called for redemption all of the outstanding Outstanding Securities, on or before the 30th day after the occurrence of a Change in Control, the Company or, at the request and expense of the Company on or before the 15th day after such occurrence, the Trustee, shall give to the Trustee, the Paying Agent and all Holders of Securities, in the manner provided in this Section 3.41.6, a notice containing the information required pursuant to the following provisions of this Section 3.4(a) (the "Company Notice") (i) on or before the 20th Business Day prior to the Repurchase Date or, in the event of a Fundamental Change arising from a Change of Control, the anticipated Effective Date (but in no event earlier than 45 days prior to the Repurchase Date or anticipated Effective Date, as the case may be), and (ii) within 15 Business Days after the Company knows or reasonably should know of the occurrence of a Fundamental the Change that arises in Control and of the repurchase right set forth herein arising as a result of any Termination of Trading. Prior to or concurrently with the delivery of any Company Notice, thereof and the Company will shall issue a press release or publish such information on the Company's then existing website Press Release including the information required to be included in such Company Notice hereunder. The Company shall also deliver a copy of any such Company Notice to the Trustee. At the request and expense of the Company on or before the fifth Business Day prior to the date on which the Company Notice is to be mailed, the Trustee shall provide the Company Notice to the Holders in accordance with the provisions of this Indenture. Each Company Notice shall state:
(i) the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be,
(ii) the date by which the repurchase right must be exercised,
(iii) the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, and whether the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, shall be paid by the Company in cash or by delivery of shares of Common Stock, or a specified combination thereof and the percentage of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, that will be paid in shares of Common Stock (which indication shall be irrevocable, subject to the satisfaction (or waiver) of the conditions set forth in Section 3.3),
(iv) if the notice relates to the occurrence of a Fundamental Change, the events causing the Fundamental Change and the date of the Fundamental Change,
(v) that Securities with respect to which a Holder gives a Repurchase Notice or Fundamental Change Repurchase Notice may be converted only if the Holder withdraws the Repurchase Notice or Fundamental Change Repurchase Notice as to such Securities in accordance with the terms of this Indenture,
(vi) a description of the procedure that a Holder must follow to exercise a repurchase right, and the place or places where such Securities are to be surrendered for payment of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, and accrued but unpaid interest (and including Liquidated Damages, if any), if any, to, but excluding, any to the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be,
(viiv) that on the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be, the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, and accrued but unpaid interest (and including Liquidated Damages, if any), if any, to, but excluding, any to the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be, will become due and payable upon each such Security designated by the Holder to be repurchased, and that interest thereon shall cease to accrue on and after said date,
(viiivi) the Conversion Price Rate then in effect,, the date on which the right to convert the principal amount of the Securities to be repurchased will terminate and the place or places where such Securities may be surrendered for conversion, and
(ixvii) the place or places that the Security certificate (including with the Election of Holder to Require Repurchase attached thereto) and the Repurchase Notice (as defined below) specified in Section 2.2 shall be delivered, and, and if the Security is a Restricted Security, Securities Certificate the place or places that the Transfer Surrender Certificate in the form set forth in Exhibit C, required by Section 2.12 14.3(9) shall be delivered,
(x) the name and address of the Paying Agent and Conversion Agent, and
(xi) if the notice relates to a Fundamental Change, the estimated amount of any Make-Whole Premium and the respective percentages of such Make-Whole Premium that will be paid (as contemplated by Section 6.1(b)) in shares of Common Stock and in cash (which indication shall be irrevocable), subject to the satisfaction (or waiver) of the conditions set forth in Section 6.1(c), in the event that a Holder should, in lieu of electing to have Securities repurchased on the Fundamental Change Repurchase Date, elect to convert such Securities during the Fundamental Change Conversion Period, and
(xii) any other information to be included therein pursuant to Section 6.1. No failure of the Company to give the foregoing notices or defect therein shall limit any Holder's ' s right to exercise a repurchase right or affect the validity of the proceedings for the repurchase of Securities. If any of the foregoing provisions or other provisions of this Article III XIV are inconsistent with applicable law, such law shall govern.
(b2) To exercise a repurchase right pursuant to Section 3.1 or Section 3.2right, a Holder shall deliver to the Paying Agent Trustee on or before the 30th day after the date of the Company Notice (i) irrevocable written notice (in the case of a repurchase pursuant to Section 3.1, a "Repurchase Notice" and, in the case of a repurchase pursuant to Section 3.2, a "Fundamental Change Repurchase Notice") of the Holder's exercise of such right, which notice shall set forth the name of the Holder, the principal amount of the Securities to be repurchased (and, if any Security is to repurchased in part, the serial number thereof, the portion of the principal amount thereof to be repurchased (which portion must be in principal amounts of $1,000 or a whole multiple of $1,000) and the name of the Person in which the portion thereof to remain outstanding Outstanding after such repurchase is to be registered), if certificated, the certificate numbers of the Securities to be repurchased, ) and a statement that an election to exercise the repurchase right pursuant to the terms and conditions specified in the Securities and the Indenture is being made thereby, and, in the event that any portion of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, shall be paid in shares of Common Stock, the name or names (with addresses) in which the certificate or certificates for shares of Common Stock shall be issued, and (ii) the Securities with respect to which the Repurchase Notice or Fundamental Change Repurchase Notice relates at any time after delivery repurchase right is being exercised. Such written notice shall be irrevocable, except that the right of the Repurchase Notice or the Fundamental Change Repurchase Notice, as the case may be (together with all necessary endorsements), at the offices of the Paying Agent, such delivery being a condition Holder to receipt by the Holder of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, thereof; provided, however, that such Repurchase Price or Fundamental Change Repurchase Price, as the case may be, shall be so paid pursuant to this Section 3.4(b) only if convert the Securities so delivered with respect to which the Paying Agent shall conform in all respects to the description thereof in the related Repurchase Notice or Fundamental Change Repurchase Notice. In the case of a repurchase right pursuant to Section 3.1 and Section 3.2, such delivery is being exercised shall be at any time from the opening of business on the date that is 20 Business Days prior to the Repurchase Date continue until the close of business on the second Business Day immediately preceding the Repurchase Date.
(3) In the event a repurchase right shall be exercised in accordance with the terms hereof, the Company shall pay or cause to be paid to the Trustee the Repurchase Price in cash or shares of Common Stock, as provided above, for payment to the Holder on the Repurchase Date, together with accrued and unpaid interest to the Repurchase Date payable with respect to the Securities as to which the repurchase right has been exercised; provided, however, that installments of interest that mature on or prior to the Repurchase Date shall be payable in cash to the Holders of such Securities, or one or more Predecessor Securities, registered as such at the Fundamental Change close of business on the relevant Regular Record Date.
(4) If any Security (or portion thereof) surrendered for repurchase shall not be so paid on the Repurchase Date, the principal amount of such Security (or portion thereof, as the case may be) shall, subject until paid, bear interest to extension the extent permitted by applicable law from the Repurchase Date at the rate of 3.5% per annum, and each Security shall remain convertible into Common Stock until the principal of such Security (or portion thereof, as the case may be) shall have been paid or duly provided for.
(5) Any Security that is to comply with be repurchased only in part shall be surrendered to the Trustee (with, if the Company or the Trustee so requires, due endorsement by, or a written instrument of transfer in form satisfactory to the Company and the Trustee duly executed by, the Holder thereof or his attorney duly authorized in writing), and the Company shall execute, and the Trustee shall authenticate and make available for delivery to the Holder of such Security without service charge, a new Security or Securities, containing identical terms and conditions, each in an authorized denomination in aggregate principal amount equal to and in exchange for the unrepurchased portion of the principal of the Security so surrendered.
(6) Any issuance of shares of Common Stock in respect of the Repurchase Price shall be deemed to have been effected immediately prior to the close of business on the Repurchase Date and the Person or Persons in whose name or names any certificate or certificates for shares of Common Stock shall be issuable upon such repurchase shall be deemed to have become on the Repurchase Date the holder or holders of record of the shares represented thereby; provided, however, that any surrender for repurchase on a date when the stock transfer books of the Company shall be closed shall constitute the Person or Persons in whose name or names the certificate or certificates for such shares are to be issued as the record holder or holders thereof for all purposes at the opening of business on the next succeeding day on which such stock transfer books are open. No payment or adjustment shall be made for dividends or distributions on any Common Stock issued upon repurchase of any Security declared prior to the Repurchase Date.
(7) No fractions of shares shall be issued upon repurchase of Securities. If more than one Security shall be repurchased from the same Holder and the Repurchase Price shall be payable in shares of Common Stock, the number of full shares that shall be issuable upon such repurchase shall be computed on the basis of the aggregate principal amount of the Securities so repurchased. Instead of any fractional share of Common Stock that would otherwise be issuable on the repurchase of any Security or Securities, the Company will deliver to the applicable lawHolder its check for the current market value of such fractional share. Owners The current market value of beneficial interests in Global a fraction of a share is determined by multiplying the current market price of a full share by the fraction, and rounding the result to the nearest cent. For purposes of this Section, the current market price of a share of Common Stock is the Closing Price Per Share of the Common Stock on the Trading Day immediately preceding the Repurchase Date.
(8) Any issuance and delivery of certificates for shares of Common Stock on repurchase of Securities shall provide be made without charge to the Holder of Securities being repurchased for such certificates or for any tax or duty in respect of the issuance or delivery of such certificates or the securities represented thereby; provided, however, that the Company shall not be required to pay any tax or duty that may be payable in respect of (i) income of the Holder or (ii) any transfer involved in the issuance or delivery of certificates for shares of Common Stock in a Repurchase Notice name other than that of the Holder of the Securities being repurchased, and no such issuance or Fundamental Change Repurchase Notice delivery shall be made unless and until the Person requesting such issuance or delivery has paid to the Company the amount of any such tax or duty or has established, to the satisfaction of the Company, that such tax or duty has been paid.
(9) If shares of Common Stock to be delivered upon repurchase of a Security are to be registered in accordance a name other than that of the beneficial owner of such Security, then such Holder must deliver to the Trustee a Surrender Certificate, dated the date of surrender of such Restricted Security and signed by such beneficial owner, as to compliance with the Applicable Procedures restrictions on transfer applicable to such Restricted Security. Neither the Trustee nor any Registrar or Transfer Agent or other agents shall be required to register in a name other than that of the Depositarybeneficial owner shares of Common Stock issued upon repurchase of any such Restricted Security not so accompanied by a properly completed Surrender Certificate.
(10) All Securities delivered for repurchase shall be delivered to the Trustee to be canceled at the direction of the Trustee, which shall dispose of the same as provided in Section 3.9.
Appears in 1 contract
Samples: Indenture (Extreme Networks Inc)
Notices; Method of Exercising Repurchase Right, Etc. (a1) Unless the Company shall have theretofore called for redemption all of the outstanding Outstanding Securities, on or before the 30th day after the occurrence of a Change in Control, the Company or, at the request and expense of the Company on or before the 15th day after such occurrence, the Trustee, shall give to the Trustee, the Paying Agent and all Holders of Securities, in the manner provided in this Section 3.41.6, a notice containing the information required pursuant to the following provisions of this Section 3.4(a) (the "“Company Notice"”) (i) on or before the 20th Business Day prior to the Repurchase Date or, in the event of a Fundamental Change arising from a Change of Control, the anticipated Effective Date (but in no event earlier than 45 days prior to the Repurchase Date or anticipated Effective Date, as the case may be), and (ii) within 15 Business Days after the Company knows or reasonably should know of the occurrence of a Fundamental the Change that arises in Control and of the repurchase right set forth herein arising as a result of any Termination of Trading. Prior to or concurrently with the delivery of any Company Notice, thereof and the Company will shall issue a press release or publish such information on the Company's then existing website Press Release including the information required to be included in such Company Notice hereunder. The Company shall also deliver a copy of any such Company Notice to the Trustee. At the request and expense of the Company on or before the fifth Business Day prior to the date on which the Company Notice is to be mailed, the Trustee shall provide the Company Notice to the Holders in accordance with the provisions of this Indenture. Each Company Notice shall state:
(i) the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be,
(ii) the date by which the repurchase right must be exercised,
(iii) the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, and whether the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, shall be paid by the Company in cash or by delivery of shares of Common Stock, or a specified combination thereof and the percentage of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, that will be paid in shares of Common Stock (which indication shall be irrevocable, subject to the satisfaction (or waiver) of the conditions set forth in Section 3.3),
(iv) if the notice relates to the occurrence of a Fundamental Change, the events causing the Fundamental Change and the date of the Fundamental Change,
(v) that Securities with respect to which a Holder gives a Repurchase Notice or Fundamental Change Repurchase Notice may be converted only if the Holder withdraws the Repurchase Notice or Fundamental Change Repurchase Notice as to such Securities in accordance with the terms of this Indenture,
(vi) a description of the procedure that a Holder must follow to exercise a repurchase right, and the place or places where such Securities are to be surrendered for payment of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, and accrued but unpaid interest (and including Liquidated Damages), if any, to, but excluding, the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be,)
(viiv) that on the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be, the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, and accrued but unpaid interest (and Liquidated Damages), if any, to, but excluding, the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be, will become due and payable upon each such Security designated by the Holder to be repurchased, and that interest thereon shall will cease to accrue on and after said such date,
(viiivi) the Conversion Price Rate then in effect,, whether the conversion rights are then exercisable, the date on which the right to convert the principal amount of the Securities to be repurchased will terminate and the place or places where such Securities may be surrendered for conversion, and
(ixvii) the place or places that the Security certificate (including with the Election of Holder to Require Repurchase attached thereto) and the Repurchase Notice (as defined below) specified in Section 2.2 shall be delivered, and, if the Security is a Restricted Security, the place or places that the Transfer Certificate in the form set forth in Exhibit C, required by Section 2.12 shall be delivered,
(x) the name and address of the Paying Agent and Conversion Agent, and
(xi) if the notice relates to a Fundamental Change, the estimated amount of any Make-Whole Premium and the respective percentages of such Make-Whole Premium that will be paid (as contemplated by Section 6.1(b)) in shares of Common Stock and in cash (which indication shall be irrevocable), subject to the satisfaction (or waiver) of the conditions set forth in Section 6.1(c), in the event that a Holder should, in lieu of electing to have Securities repurchased on the Fundamental Change Repurchase Date, elect to convert such Securities during the Fundamental Change Conversion Period, and
(xii) any other information to be included therein pursuant to Section 6.1. No failure of the Company to give the foregoing notices or defect therein shall limit any Holder's ’s right to exercise a repurchase right or affect the validity of the proceedings for the repurchase of Securities. If any of the foregoing provisions or other provisions of this Article III XIV are inconsistent with applicable law, such law shall govern.
(b2) To exercise a repurchase right pursuant to Section 3.1 or Section 3.2right, a Holder shall deliver to the Paying Agent Trustee on or before the 20th Business Day after the date of the Company Notice (i) irrevocable written notice (in the case of a repurchase pursuant to Section 3.1, a "Repurchase Notice" and, in the case of a repurchase pursuant to Section 3.2, a "Fundamental Change Repurchase Notice") of the Holder's ’s exercise of such right, which notice shall set forth the name of the Holder, the principal amount of the Securities to be repurchased (and, if any Security is to repurchased in part, the serial number thereof, the portion of the principal amount thereof to be repurchased (which portion must be in principal amounts of $1,000 or a whole multiple of $1,000) and the name of the Person in which the portion thereof to remain outstanding Outstanding after such repurchase is to be registered), if certificated, the certificate numbers of the Securities to be repurchased, ) and a statement that an election to exercise the repurchase right pursuant to the terms and conditions specified in the Securities and the Indenture is being made thereby, and, in the event that any portion of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, shall be paid in shares of Common Stock, the name or names (with addresses) in which the certificate or certificates for shares of Common Stock shall be issued, and (ii) the Securities with respect to which the Repurchase Notice or Fundamental Change Repurchase Notice relates at any time after delivery repurchase right is being exercised. Such written notice shall be irrevocable, except that the right of the Repurchase Notice or the Fundamental Change Repurchase Notice, as the case may be (together with all necessary endorsements), at the offices of the Paying Agent, such delivery being a condition Holder to receipt by the Holder of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, thereof; provided, however, that such Repurchase Price or Fundamental Change Repurchase Price, as the case may be, shall be so paid pursuant to this Section 3.4(b) only if convert the Securities so delivered with respect to which the Paying Agent shall conform in all respects to the description thereof in the related Repurchase Notice or Fundamental Change Repurchase Notice. In the case of a repurchase right pursuant to Section 3.1 and Section 3.2, such delivery is being exercised shall be at any time from the opening of business on the date that is 20 Business Days prior to the Repurchase Date continue until the close of business on the second Business Day immediately preceding the Repurchase Date.
(3) In the event a repurchase right shall be exercised in accordance with the terms hereof, the Company shall pay or cause to be paid to the Trustee the Repurchase Price in cash or shares of Common Stock, as provided above, for payment to the Holder on the Repurchase Date; provided, however, that installments of interest that mature on or prior to the Repurchase Date shall be payable in cash to the Holders of such Securities, or one or more Predecessor Securities, registered as such at the Fundamental Change close of business on the relevant Regular Record Date, or if shares of Common Stock are to be paid, on the date that is 45 days after the date of the Company Notice.
(4) If any Security (or portion thereof) surrendered for repurchase shall not be so paid on the Repurchase DateDate the principal amount of such Security (or portion thereof, as the case may be) shall, subject until paid, bear interest to extension the extent permitted by applicable law from the Repurchase Date at the rate of 2.50% per annum, and each such Security shall remain convertible into Common Stock until the principal of such Security (or portion thereof, as the case may be) shall have been paid or duly provided for.
(5) Any Security that is to comply with be repurchased only in part shall be surrendered to the Trustee (with, if the Company or the Trustee so requires, due endorsement by, or a written instrument of transfer in form satisfactory to the Company and the Trustee duly executed by, the Holder thereof or his attorney duly authorized in writing), and the Company shall execute, and the Trustee shall authenticate and make available for delivery to the Holder of such Security without service charge, a new Security or Securities, containing identical terms and conditions, each in an authorized denomination in aggregate principal amount equal to and in exchange for the unrepurchased portion of the principal of the Security so surrendered.
(6) Any issuance of shares of Common Stock in respect of the Repurchase Price shall be deemed to have been effected immediately prior to the close of business on the Repurchase Date and the Person or Persons in whose name or names any certificate or certificates for shares of Common Stock shall be issuable upon such repurchase shall be deemed to have become on the Repurchase Date the holder or holders of record of the shares represented thereby; provided, however, that any surrender for repurchase on a date when the stock transfer books of the Company shall be closed shall constitute the Person or Persons in whose name or names the certificate or certificates for such shares are to be issued as the record holder or holders thereof for all purposes at the opening of business on the next succeeding day on which such stock transfer books are open. No payment or adjustment shall be made for dividends or distributions on any Common Stock issued upon repurchase of any Security declared prior to the Repurchase Date.
(7) No fractions of shares shall be issued upon repurchase of Securities. If more than one Security shall be repurchased from the same Holder and the Repurchase Price shall be payable in shares of Common Stock, the number of full shares that shall be issuable upon such repurchase shall be computed on the basis of the aggregate principal amount of the Securities so repurchased. Instead of any fractional share of Common Stock that would otherwise be issuable on the repurchase of any Security or Securities, the Company will deliver to the applicable lawHolder its check for the current market value of such fractional share. Owners The current market value of beneficial interests in Global a fraction of a share is determined by multiplying the Current Market Price of a full share by the fraction, and rounding the result to the nearest U.S. $0.01. For purposes of this Section, the Current Market Price of a share of Common Stock is the Closing Sale Price of the Common Stock on the Trading Day immediately preceding the Repurchase Date.
(8) Any issuance and delivery of certificates for shares of Common Stock on repurchase of Securities shall provide be made without charge to the Holder of Securities being repurchased for such certificates or for any tax or duty in respect of the issuance or delivery of such certificates or the securities represented thereby; provided, however, that the Company shall not be required to pay any tax or duty that may be payable in respect of (i) income of the Holder or (ii) any transfer involved in the issuance or delivery of certificates for shares of Common Stock in a Repurchase Notice name other than that of the Holder of the Securities being repurchased, and no such issuance or Fundamental Change Repurchase Notice delivery shall be made unless and until the Person requesting such issuance or delivery has paid to the Company the amount of any such tax or duty or has established, to the satisfaction of the Company, that such tax or duty has been paid.
(9) If shares of Common Stock to be delivered upon repurchase of a Security are to be registered in accordance a name other than that of the beneficial owner of such Security, then such Holder must deliver to the Trustee a Surrender Certificate, dated the date of surrender of such Restricted Security and signed by such beneficial owner, as to compliance with the Applicable Procedures restrictions on transfer applicable to such Restricted Security. Neither the Trustee nor any Registrar or Transfer Agent or other agents shall be required to register in a name other than that of the Depositarybeneficial owner shares of Common Stock issued upon repurchase of any such Restricted Security not so accompanied by a properly completed Surrender Certificate.
(10) All Securities delivered for repurchase shall be delivered to the Trustee to be canceled at the direction of the Trustee, which shall dispose of the same as provided in Section 3.9.
Appears in 1 contract
Samples: Indenture (Hewitt Associates Inc)
Notices; Method of Exercising Repurchase Right, Etc. (a) Unless the Company shall have theretofore called for redemption all of the outstanding Outstanding Securities, prior to or on the 30th day after the occurrence of a Change in Control, the Company, or, at the written request and expense of the Company prior to or on the 30th day after such occurrence, the Trustee, shall give to the Trustee, the Paying Agent and all Holders of SecuritiesSecurities notice, in the manner provided in this Section 3.414.2 hereof, of the occurrence of the Change of Control and of the Repurchase Right set forth herein arising as a notice containing the information required pursuant to the following provisions of this Section 3.4(a) result thereof (the "Company Notice") (i) on or before the 20th Business Day prior to the Repurchase Date or, in the event of a Fundamental Change arising from a Change of Control, the anticipated Effective Date (but in no event earlier than 45 days prior to the Repurchase Date or anticipated Effective Date, as the case may be), and (ii) within 15 Business Days after the Company knows or reasonably should know of the occurrence of a Fundamental Change that arises as a result of any Termination of Trading. Prior to or concurrently with the delivery of any Company Notice, the Company will issue a press release or publish such information on the Company's then existing website including the information required to be included in such Company Notice hereunder. The Company shall also deliver a copy of any Company Notice such notice of a Repurchase Right to the Trustee. At the request and expense Each notice of the Company on or before the fifth Business Day prior to the date on which the Company Notice is to be mailed, the Trustee shall provide the Company Notice to the Holders in accordance with the provisions of this Indenture. Each Company Notice a Repurchase Right shall state:
(i1) the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be,;
(ii2) the date by which the repurchase right Repurchase Right must be exercised,;
(iii3) the Repurchase Price or the Fundamental Change Repurchase Priceand accrued and unpaid interest, as the case may beif any, and whether the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, shall be paid by the Company in cash or by delivery of shares of Common Stock, or a specified combination thereof and the percentage of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, that will be paid in shares of Common Stock (which indication shall be irrevocable, subject to the satisfaction (or waiver) of the conditions set forth in Section 3.3),;
(iv) if the notice relates to the occurrence of a Fundamental Change, the events causing the Fundamental Change and the date of the Fundamental Change,
(v) that Securities with respect to which a Holder gives a Repurchase Notice or Fundamental Change Repurchase Notice may be converted only if the Holder withdraws the Repurchase Notice or Fundamental Change Repurchase Notice as to such Securities in accordance with the terms of this Indenture,
(vi4) a description of the procedure that which a Holder must follow to exercise a repurchase rightRepurchase Right, and the place or places where such Securities Securities, are to be surrendered for payment of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, and accrued but and unpaid interest (and Liquidated Damages)interest, if any, to, but excluding, the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be,;
(vii5) that on the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be, the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, and accrued but and unpaid interest (and Liquidated Damages)interest, if any, to, but excluding, the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be, will become due and payable upon each such Security designated by the Holder to be repurchased, and that interest thereon shall cease to accrue on and after said date,;
(viii6) the Conversion Price Rate then in effect,, the date on which the right to convert the principal amount of the Securities to be repurchased will terminate and the place where such Securities may be surrendered for conversion, and
(ix7) the place or places that where such Securities, together with the Security Option to Elect Repayment Upon a Change of Control certificate (including the Election included in Exhibit A annexed hereto are to be delivered for payment of Holder to Require Repurchase attached thereto) and the Repurchase Notice (as defined below) shall be delivered, andPrice and accrued and unpaid interest, if the Security is a Restricted Security, the place or places that the Transfer Certificate in the form set forth in Exhibit C, required by Section 2.12 shall be delivered,
(x) the name and address of the Paying Agent and Conversion Agent, and
(xi) if the notice relates to a Fundamental Change, the estimated amount of any Make-Whole Premium and the respective percentages of such Make-Whole Premium that will be paid (as contemplated by Section 6.1(b)) in shares of Common Stock and in cash (which indication shall be irrevocable), subject to the satisfaction (or waiver) of the conditions set forth in Section 6.1(c), in the event that a Holder should, in lieu of electing to have Securities repurchased on the Fundamental Change Repurchase Date, elect to convert such Securities during the Fundamental Change Conversion Period, and
(xii) any other information to be included therein pursuant to Section 6.1any. No failure of the Company to give the foregoing notices or defect therein shall limit any Holder's right to exercise a repurchase right Repurchase Right or affect the validity of the proceedings for the repurchase of Securities. If any of the foregoing provisions or other provisions of this Article III 11 are inconsistent with applicable law, such law shall govern.
(b) To exercise a repurchase right pursuant to Section 3.1 or Section 3.2Repurchase Right, a Holder shall deliver to the Paying Agent Trustee prior to or on the 30th day after the date of the Company Notice:
(i1) written notice (in the case of a repurchase pursuant to Section 3.1, a "Repurchase Notice" and, in the case of a repurchase pursuant to Section 3.2, a "Fundamental Change Repurchase Notice") of the Holder's exercise of such right, which notice shall set forth the name of the Holder, the principal amount of the Securities to be repurchased (and, if any Security is to be repurchased in part, the serial number thereof, the portion of the principal amount thereof to be repurchased (which portion must be in principal amounts of $1,000 or a whole multiple of $1,000repurchased) and the name of the Person in which the portion thereof to remain outstanding after such repurchase is to be registered), if certificated, the certificate numbers of the Securities to be repurchased, and a statement that an election to exercise the repurchase right pursuant to the terms and conditions specified in the Securities and the Indenture Repurchase Right is being made thereby, and, in the event that any portion of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, shall be paid in shares of Common Stock, the name or names (with addresses) in which the certificate or certificates for shares of Common Stock shall be issued, and and
(ii2) the Securities with respect to which the Repurchase Notice or Fundamental Change Repurchase Notice relates at any time after delivery Right is being exercised. Such written notice shall be irrevocable, except that the right of the Repurchase Notice or Holder to convert the Fundamental Change Repurchase Notice, as the case may be (together Securities with all necessary endorsements), at the offices of the Paying Agent, such delivery being a condition respect to receipt by the Holder of which the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, thereof; provided, however, that such Repurchase Price or Fundamental Change Repurchase Price, as the case may be, Right is being exercised shall be so paid pursuant to this Section 3.4(b) only if the Securities so delivered to the Paying Agent shall conform in all respects to the description thereof in the related Repurchase Notice or Fundamental Change Repurchase Notice. In the case of a repurchase right pursuant to Section 3.1 and Section 3.2, such delivery shall be at any time from the opening of business on the date that is 20 Business Days prior to the Repurchase Date continue until the close of business on the second Business Day prior immediately preceding the Repurchase Date.
(c) In the event a Repurchase Right shall be exercised in accordance with the terms hereof, the Company shall pay or cause to be paid to the Trustee the Repurchase Price in cash or shares of Common Stock, as provided above, for payment to the Holder on the Repurchase Date or, if shares of Common Stock are to be paid, as promptly after the Repurchase Date as practicable, together with accrued and unpaid interest to the Repurchase Date payable in cash with respect to the Securities as to which the Repurchase Right has been exercised; provided, however, that installments of interest that mature prior to or on the Fundamental Change Repurchase Date shall be payable in cash to the Holders of such Securities, or one or more Predecessor Securities, registered as such at the close of business on the relevant Regular Record Date.
(d) If any Security (or portion thereof) surrendered for repurchase shall not be so paid on the Repurchase Date, the principal amount of such Security (or portion thereof, as the case may be) shall, subject until paid, bear interest to extension the extent permitted by applicable law from the Xxxxxxxxxx Date at the Interest Rate, and each Security shall remain convertible into Common Stock until the principal of such Security (or portion thereof, as the case may be) shall have been paid or duly provided for.
(e) Any Security which is to comply with applicable lawbe repurchased only in part shall be surrendered to the Trustee (with, if the Company or the Trustee so requires, due endorsement by, or a written instrument of transfer in form satisfactory to the Company and the Trustee duly executed by the Holder thereof or his attorney duly authorized in writing), and the Company shall execute, and the Trustee shall authenticate and make available for delivery to the Holder of such Security without service charge, a new Security or Securities, containing identical terms and conditions, each in an authorized denomination in aggregate principal amount equal to and in exchange for the unrepurchased portion of the principal of the Security so surrendered.
(f) Any issuance of shares of Common Stock in respect of the Repurchase Price shall be deemed to have been effected immediately prior to the close of business on the Repurchase Date and the Person or Persons in whose name or names any certificate or certificates for shares of Common Stock shall be issuable upon such repurchase shall be deemed to have become on the Repurchase Date the holder or holders of record of the shares represented thereby; provided, however, that any surrender for repurchase on a date when the stock transfer books of the Company shall be closed shall constitute the Person or Persons in whose name or names the certificate or certificates for such shares are to be issued as the record holder or holders thereof for all purposes at the opening of business on the next succeeding day on which such stock transfer books are open. Owners No payment or adjustment shall be made for dividends or distributions on any Common Stock issued upon repurchase of beneficial interests any Security declared prior to the Repurchase Date.
(g) No fractions of shares of Common Stock shall be issued upon repurchase of any Security or Securities. If more than one Security shall be repurchased from the same Holder and the Repurchase Price shall be payable in Global shares of Common Stock, the number of full shares which shall be issued upon such repurchase shall be computed on the basis of the aggregate principal amount of the Securities (or specified portions thereof) to be so repurchased. Instead of any fractional share of Common Stock which would otherwise be issued on the repurchase of any Security or Securities (or specified portions thereof), the Company shall pay a cash adjustment in respect of such fraction (calculated to the nearest one-100th of a share) in an amount equal to the same fraction of the Quoted Price of the Common Stock as of the Trading Day preceding the Repurchase Date.
(h) Any issuance and delivery of certificates for shares of Common Stock on repurchase of Securities shall provide a Repurchase Notice be made without charge to the Holder of Securities being repurchased for such certificates or Fundamental Change Repurchase Notice for any tax or duty in accordance with the Applicable Procedures respect of the Depositaryissuance or delivery of such certificates or the Securities represented thereby; provided, however, that the Company shall not be required to pay any tax or duty which may be payable in respect of (i) income of the Holder or (ii) any transfer involved in the issuance or delivery of certificates for shares of Common Stock in a name other than that of the Holder of the Securities being repurchased, and no such issuance or delivery shall be made unless the Persons requesting such issuance or delivery has paid to the Company the amount of any such tax or duty or has established, to the satisfaction of the Company, that such tax or duty has been paid.
(i) All Securities delivered for repurchase shall be delivered to the Trustee to be canceled at the direction of the Trustee, which shall dispose of the same as provided in Section 2.15 hereof.
Appears in 1 contract
Notices; Method of Exercising Repurchase Right, Etc. (a1) Unless the Company shall have theretofore called for redemption all of the outstanding Securities, the Company shall give to the Trustee, the Paying Agent and all Holders of Securities, in the manner provided in this Section 3.4, a notice containing the information required pursuant to the following provisions of this Section 3.4(a) (the "Company Notice") (i) on On or before the 20th Business Day prior to the Repurchase Date or, in the event of a Fundamental Change arising from a Change of Control, the anticipated Effective Date (but in no event earlier than 45 days prior to the Repurchase Date or anticipated Effective Date, as the case may be), and (ii) within 15 Business Days 30th day after the Company knows or reasonably should know of the occurrence of a Fundamental Change that arises as a result of any Termination of Trading. Prior to or concurrently with the delivery of any Company Noticein Control, the Company will issue a press release or publish such information on the Company's then existing website including the information required to be included in such Company Notice hereunder. The Company shall also deliver a copy of any Company Notice to the Trustee. At or, at the request and expense of the Company on or before the fifth Business Day prior 30th day after such occurrence, the Trustee, shall give to all Holders of Notes, in the manner provided in Section 1.6, notice (the "Company Notice") of the occurrence of the Change of Control and of the repurchase right set forth herein arising as a result thereof. The Company shall also deliver (i) a copy of such notice of a repurchase right to the date on which the Company Notice is Trustee and (ii) make a public announcement thereof by release made to be mailed, the Trustee shall provide the Company Notice to the Holders in accordance with the provisions of this IndentureReuters Economic Services and Bloomberg Business News. Each Company Notice notice of a repurchase right shall state:
(i) the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be,
(ii) the date by which the repurchase right must be exercised,
(iii) the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, and whether the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, shall be paid by the Company in cash or by delivery of shares of Common Stock, or a specified combination thereof and the percentage of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, that will be paid in shares of Common Stock (which indication shall be irrevocable, subject to the satisfaction (or waiver) of the conditions set forth in Section 3.3),92 99
(iv) if the notice relates to the occurrence of a Fundamental Change, the events causing the Fundamental Change and the date of the Fundamental Change,
(v) that Securities with respect to which a Holder gives a Repurchase Notice or Fundamental Change Repurchase Notice may be converted only if the Holder withdraws the Repurchase Notice or Fundamental Change Repurchase Notice as to such Securities in accordance with the terms of this Indenture,
(vi) a description of the procedure that which a Holder must follow to exercise a repurchase right, and the place or places where such Securities Notes, are to be surrendered for payment of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, and accrued but unpaid interest (and Liquidated Damages)interest, if any, to, but excluding, the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be,
(viiv) that on the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be, the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, and accrued but unpaid interest (and Liquidated Damages)interest, if any, to, but excluding, the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be, will become due and payable upon each such Security Note designated by the Holder to be repurchased, and that interest thereon shall cease to accrue on and after said date,
(viiivi) the Conversion Price Rate then in effect,, the date on which the right to convert the principal amount of the Notes to be repurchased will terminate and the place or places where such Notes may be surrendered for conversion, and
(ixvii) the place or places that the Security Note certificate (including with the Election of Holder to Require Repurchase attached thereto) and the Repurchase Notice (as defined below) specified in Section 2.2 shall be delivered, and, and if the Security Note is a Restricted SecurityNote, the place or places that the Transfer Surrender Certificate in the form set forth in Exhibit C, required by Section 2.12 13.3(9) shall be delivered,
(x) the name and address of the Paying Agent and Conversion Agent, and
(xi) if the notice relates to a Fundamental Change, the estimated amount of any Make-Whole Premium and the respective percentages of such Make-Whole Premium that will be paid (as contemplated by Section 6.1(b)) in shares of Common Stock and in cash (which indication shall be irrevocable), subject to the satisfaction (or waiver) of the conditions set forth in Section 6.1(c), in the event that a Holder should, in lieu of electing to have Securities repurchased on the Fundamental Change Repurchase Date, elect to convert such Securities during the Fundamental Change Conversion Period, and
(xii) any other information to be included therein pursuant to Section 6.1. No failure of the Company to give the foregoing notices or defect therein shall limit any Holder's ' s right to exercise a repurchase right or affect the validity of the proceedings for the repurchase of SecuritiesNotes. If any of the foregoing provisions or other provisions of this Article III XIII are inconsistent with applicable law, such law shall govern.
(b2) To exercise a repurchase right pursuant to Section 3.1 or Section 3.2right, a Holder shall deliver to the Paying Agent Trustee on or before the 30th day after the date of the Company Notice (i) written notice (in the case of a repurchase pursuant to Section 3.1, a "Repurchase Notice" and, in the case of a repurchase pursuant to Section 3.2, a "Fundamental Change Repurchase Notice") of the Holder's exercise of such right, which notice shall set forth the name of the Holder, the principal amount of the Securities Notes to be repurchased (and, if any Security Note is to repurchased in part, the serial number thereof, the portion of the principal amount thereof to be repurchased (which portion must be in principal amounts of $1,000 or a whole multiple of $1,000) and the name of the Person in which the portion thereof to remain outstanding Outstanding after such repurchase is to be registered), if certificated, the certificate numbers of the Securities to be repurchased, ) and a statement that an election to exercise the repurchase right pursuant to the terms and conditions specified in the Securities and the Indenture is being made thereby, and, in the event that any portion of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, shall be paid in shares of Common Stock, the name or names (with addresses) in which the certificate or certificates for shares of Common Stock shall be issued, and (ii) the Securities Notes with respect to which the Repurchase Notice or Fundamental Change Repurchase Notice relates at any time after delivery repurchase right is being exercised. Such written notice shall be irrevocable, except that the right of the Repurchase Notice or Holder to convert the Fundamental Change Repurchase Notice, as Notes with respect to which the case may be (together with all necessary endorsements), at the offices of the Paying Agent, such delivery being a condition to receipt by the Holder of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, thereof; provided, however, that such Repurchase Price or Fundamental Change Repurchase Price, as the case may be, shall be so paid pursuant to this Section 3.4(b) only if the Securities so delivered to the Paying Agent shall conform in all respects to the description thereof in the related Repurchase Notice or Fundamental Change Repurchase Notice. In the case of a repurchase right pursuant to Section 3.1 and Section 3.2, such delivery is being exercised shall be at any time from the opening of business on the date that is 20 Business Days prior to the Repurchase Date continue until the close of business on the second Business Day Repurchase Date.
(3) In the event a repurchase right shall be exercised in accordance with the terms hereof, the Company shall pay or cause to be paid to the Trustee the Repurchase Price in cash or shares of Common Stock, as provided above, for payment to the Holder on the Repurchase Date or, if shares of Common Stock are to be paid, as promptly after the Repurchase Date as practicable, together with accrued and unpaid interest to the Repurchase Date payable with respect to the Notes as to which the repurchase right has been exercised; provided, however, that installments of interest that mature on or prior to the Repurchase Date shall be payable in 93 100 cash to the Holders of such Notes, or one or more Predecessor Notes, registered as such at the Fundamental Change close of business on the relevant Regular Record Date.
(4) If any Note (or portion thereof) surrendered for repurchase shall not be so paid on the Repurchase Date, the principal amount of such Note (or portion thereof, as the case may be) shall, subject until paid, bear interest to extension the extent permitted by applicable law from the Repurchase Date at the rate of 7.00% per annum, and each Note shall remain convertible into Common Stock until the principal of such Note (or portion thereof, as the case may be) shall have been paid or duly provided for.
(5) Any Note which is to comply with be repurchased only in part shall be surrendered to the Trustee (with, if the Company or the Trustee so requires, due endorsement by, or a written instrument of transfer in form satisfactory to the Company and the Trustee duly executed by, the Holder thereof or his attorney duly authorized in writing), and the Company shall execute, and the Trustee shall authenticate and make available for delivery to the Holder of such Note without service charge, a new Note or Notes, containing identical terms and conditions, each in an authorized denomination in aggregate principal amount equal to and in exchange for the unrepurchased portion of the principal of the Note so surrendered.
(6) Any issuance of shares of Common Stock in respect of the Repurchase Price shall be deemed to have been effected immediately prior to the close of business on the Repurchase Date and the Person or Persons in whose name or names any certificate or certificates for shares of Common Stock shall be issuable upon such repurchase shall be deemed to have become on the Repurchase Date the holder or holders of record of the shares represented thereby; provided, however, that any surrender for repurchase on a date when the stock transfer books of the Company shall be closed shall constitute the Person or Persons in whose name or names the certificate or certificates for such shares are to be issued as the record holder or holders thereof for all purposes at the opening of business on the next succeeding day on which such stock transfer books are open. No payment or adjustment shall be made for dividends or distributions on any Common Stock issued upon repurchase of any Note declared prior to the Repurchase Date.
(7) No fractions of shares shall be issued upon repurchase of Notes. If more than one Note shall be repurchased from the same Holder and the Repurchase Price shall be payable in shares of Common Stock, the number of full shares which shall be issuable upon such repurchase shall be computed on the basis of the aggregate principal amount of the Notes so repurchased. Instead of any fractional share of Common Stock which would otherwise be issuable on the repurchase of any Note or Notes, the Company will deliver to the applicable lawHolder its check for the current market value of such fractional share. Owners The current market value of a fraction of a share is determined by multiplying the current market price of a full share by the fraction, and rounding the result to the nearest cent. For purposes of this Section, the current market price of a share of Common Stock is the Closing Price Per Share of the Common Stock on the Trading Day immediately preceding the Repurchase Date.
(8) Any issuance and delivery of certificates for shares of Common Stock on repurchase of Notes shall be made without charge to the Holder of Notes being repurchased for such certificates or for any tax or duty in respect of the issuance or delivery of such certificates or the notes represented thereby; provided, however, that the Company shall not be required to pay any tax or duty which may be payable in respect of (i) income of the Holder or (ii) any transfer involved in the issuance or delivery of certificates for shares of Common Stock in a name other than that of the Holder of the Notes being repurchased, and no such issuance or delivery shall be made unless and until the Person requesting such issuance or delivery has paid to the Company the amount of any such tax or duty or has established, to the satisfaction of the Company, that such tax or duty has been paid.
(9) If shares of Common Stock to be delivered upon repurchase of a Note are to be registered in a name other than that of the beneficial interests in Global Securities shall provide owner of such Note, then such Holder must deliver to the Trustee a Repurchase Notice or Fundamental Change Repurchase Notice in accordance Surrender Certificate, dated the date of surrender of such Restricted Note and signed by such beneficial owner, as to compliance with the Applicable Procedures restrictions on transfer applicable to such Restricted Note. Neither the Trustee nor any Registrar or Transfer Agent or other agents shall be required to register in a name other than that of the Depositarybeneficial owner shares of Common Stock issued upon repurchase of any such Restricted Note not so accompanied by a properly completed Surrender Certificate.
(10) All Notes delivered for repurchase shall be delivered to the Trustee to be cancelled at the direction of the Trustee, which shall dispose of the same as provided in Section 3.9.
Appears in 1 contract
Samples: Indenture (American Greetings Corp)
Notices; Method of Exercising Repurchase Right, Etc. (a1) Unless the Company shall have theretofore called for redemption all of the outstanding Outstanding Securities, the Company shall give to the Trustee, the Paying Agent and all Holders of Securities, in the manner provided in this Section 3.4, a notice containing the information required pursuant to the following provisions of this Section 3.4(a) (the "Company Notice") (i) on or before the 20th Business Day prior to the Repurchase Date or, in the event of a Fundamental Change arising from a Change of Control, the anticipated Effective Date (but in no event earlier than 45 days prior to the Repurchase Date or anticipated Effective Date, as the case may be), and (ii) within 15 Business Days 30th day after the Company knows or reasonably should know of the occurrence of a Fundamental Change that arises as a result of any Termination of Trading. Prior to or concurrently with the delivery of any Company Noticein Control, the Company will issue a press release or publish such information on the Company's then existing website including the information required to be included in such Company Notice hereunder. The Company shall also deliver a copy of any Company Notice to the Trustee. At or, at the request and expense of the Company on or before the fifth Business Day prior 15th day after such occurrence, the Trustee, shall give to all Holders of Securities, in the manner provided in Section 1.6, notice (the "Company Notice") of the occurrence of the Change of Control and of the repurchase right set forth herein arising as a result thereof. The Company shall also deliver a copy of such notice of a repurchase right to the date on which the Company Notice is to be mailed, the Trustee shall provide the Company Notice to the Holders in accordance with the provisions of this IndentureTrustee. Each Company Notice notice of a repurchase right shall state:
(i) the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be,
(ii) the date by which the repurchase right must be exercised,
(iii) the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, and whether the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, shall be paid by the Company in cash or by delivery of shares of Common Stock, or a specified combination thereof and the percentage of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, that will be paid in shares of Common Stock (which indication shall be irrevocable, subject to the satisfaction (or waiver) of the conditions set forth in Section 3.3),
(iv) if the notice relates to the occurrence of a Fundamental Change, the events causing the Fundamental Change and the date of the Fundamental Change,
(v) that Securities with respect to which a Holder gives a Repurchase Notice or Fundamental Change Repurchase Notice may be converted only if the Holder withdraws the Repurchase Notice or Fundamental Change Repurchase Notice as to such Securities in accordance with the terms of this Indenture,
(vi) a description of the procedure that which a Holder must follow to exercise a repurchase right, and the place or places where such Securities are to be surrendered for payment of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, and accrued but unpaid interest (and including Liquidated Damages, if any), if any, to, but excluding, any to the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be,
(viiv) that on the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be, the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, and accrued but unpaid interest (and including Liquidated Damages, if any), if any, to, but excluding, any to the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be, will become due and payable upon each such Security designated by the Holder to be repurchased, and that interest thereon shall cease to accrue on and after said date,
(viiivi) the Conversion Price Rate then in effect,, the date on which the right to convert the principal amount of the Securities to be repurchased will terminate and the place or places where such Securities may be surrendered for conversion, and
(ixvii) the place or places that the Security certificate (including Certificate with the Election of Holder to Require Repurchase attached thereto) and the Repurchase Notice (as defined below) specified in Section 2.2 shall be delivered, and, and if the Security is a Restricted Security, Securities Certificate the place or places that the Transfer Surrender Certificate in the form set forth in Exhibit C, required by Section 2.12 14.3(9) shall be delivered,
(x) the name and address of the Paying Agent and Conversion Agent, and
(xi) if the notice relates to a Fundamental Change, the estimated amount of any Make-Whole Premium and the respective percentages of such Make-Whole Premium that will be paid (as contemplated by Section 6.1(b)) in shares of Common Stock and in cash (which indication shall be irrevocable), subject to the satisfaction (or waiver) of the conditions set forth in Section 6.1(c), in the event that a Holder should, in lieu of electing to have Securities repurchased on the Fundamental Change Repurchase Date, elect to convert such Securities during the Fundamental Change Conversion Period, and
(xii) any other information to be included therein pursuant to Section 6.1. No failure of the Company to give the foregoing notices or defect therein shall limit any Holder's ' s right to exercise a repurchase right or affect the validity of the proceedings for the repurchase of Securities. If any of the foregoing provisions or other provisions of this Article III XIV are inconsistent with applicable law, such law shall govern.
(b2) To exercise a repurchase right pursuant to Section 3.1 or Section 3.2right, a Holder shall deliver to the Paying Agent Trustee on or before the 30th day after the date of the Company Notice (i) irrevocable written notice (in the case of a repurchase pursuant to Section 3.1, a "Repurchase Notice" and, in the case of a repurchase pursuant to Section 3.2, a "Fundamental Change Repurchase Notice") of the Holder's exercise of such right, which notice shall set forth the name of the Holder, the principal amount of the Securities to be repurchased (and, if any Security is to repurchased in part, the serial number thereof, the portion of the principal amount thereof to be repurchased (which portion must be in principal amounts of $1,000 or a whole multiple of $1,000) and the name of the Person in which the portion thereof to remain outstanding Outstanding after such repurchase is to be registered), if certificated, the certificate numbers of the Securities to be repurchased, ) and a statement that an election to exercise the repurchase right pursuant to the terms and conditions specified in the Securities and the Indenture is being made thereby, and, in the event that any portion of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, shall be paid in shares of Common Stock, the name or names (with addresses) in which the certificate or certificates for shares of Common Stock shall be issued, and (ii) the Securities with respect to which the Repurchase Notice or Fundamental Change Repurchase Notice relates at any time after delivery repurchase right is being exercised. Such written notice shall be irrevocable, except that the right of the Repurchase Notice or the Fundamental Change Repurchase Notice, as the case may be (together with all necessary endorsements), at the offices of the Paying Agent, such delivery being a condition Holder to receipt by the Holder of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, thereof; provided, however, that such Repurchase Price or Fundamental Change Repurchase Price, as the case may be, shall be so paid pursuant to this Section 3.4(b) only if convert the Securities so delivered with respect to which the Paying Agent shall conform in all respects to the description thereof in the related Repurchase Notice or Fundamental Change Repurchase Notice. In the case of a repurchase right pursuant to Section 3.1 and Section 3.2, such delivery is being exercised shall be at any time from the opening of business on the date that is 20 Business Days prior to the Repurchase Date continue until the close of business on the second Business Day prior to the Repurchase Date.
(3) In the event a repurchase right shall be exercised in accordance with the terms hereof, the Company shall pay or cause to be paid to the Trustee the Repurchase Price in cash or shares of Common Stock, as provided above, for payment to the Holder on the Repurchase Date or, if shares of Common Stock are to be paid, as promptly after the Repurchase Date as practicable, provided, however, that installments of interest that mature on or prior to the Fundamental Change Repurchase Date shall be payable in cash to the Holders of such Securities, or one or more Predecessor Securities, registered as such at the close of business on the relevant Regular Record Date.
(4) If any Security (or portion thereof) surrendered for repurchase shall not be so paid on the Repurchase Date, the principal amount of such Security (or portion thereof, as the case may be) shall, subject until paid, bear interest to extension the extent permitted by applicable law from the Repurchase Date at the rate of 4.75% per annum, and each Security shall remain convertible into Common Stock until the principal of such Security (or portion thereof, as the case may be) shall have been paid or duly provided for.
(5) Any Security which is to comply with be repurchased only in part shall be surrendered to the Trustee (with, if the Company or the Trustee so requires, due endorsement by, or a written instrument of transfer in form satisfactory to the Company and the Trustee duly executed by, the Holder thereof or his attorney duly authorized in writing), and the Company shall execute, and the Trustee shall authenticate and make available for delivery to the Holder of such Security without service charge, a new Security or Securities, containing identical terms and conditions, each in an authorized denomination in aggregate principal amount equal to and in exchange for the unrepurchased portion of the principal of the Security so surrendered.
(6) Any issuance of shares of Common Stock in respect of the Repurchase Price shall be deemed to have been effected immediately prior to the close of business on the Repurchase Date and the Person or Persons in whose name or names any certificate or certificates for shares of Common Stock shall be issuable upon such repurchase shall be deemed to have become on the Repurchase Date the holder or holders of record of the shares represented thereby; provided, however, that any surrender for repurchase on a date when the stock transfer books of the Company shall be closed -93- shall constitute the Person or Persons in whose name or names the certificate or certificates for such shares are to be issued as the record holder or holders thereof for all purposes at the opening of business on the next succeeding day on which such stock transfer books are open. No payment or adjustment shall be made for dividends or distributions on any Common Stock issued upon repurchase of any Security declared prior to the Repurchase Date.
(7) No fractions of shares shall be issued upon repurchase of Securities. If more than one Security shall be repurchased from the same Holder and the Repurchase Price shall be payable in shares of Common Stock, the number of full shares which shall be issuable upon such repurchase shall be computed on the basis of the aggregate principal amount of the Securities so repurchased. Instead of any fractional share of Common Stock which would otherwise be issuable on the repurchase of any Security or Securities, the Company will deliver to the applicable lawHolder its check for the current market value of such fractional share. Owners The current market value of beneficial interests in Global a fraction of a share is determined by multiplying the current market price of a full share by the fraction, and rounding the result to the nearest cent. For purposes of this Section, the current market price of a share of Common Stock is the Closing Price Per Share of the Common Stock on the Trading Day immediately preceding the Repurchase Date.
(8) Any issuance and delivery of certificates for shares of Common Stock on repurchase of Securities shall provide be made without charge to the Holder of Securities being repurchased for such certificates or for any tax or duty in respect of the issuance or delivery of such certificates or the securities represented thereby; provided, however, that the Company shall not be required to pay any tax or duty which may be payable in respect of (i) income of the Holder or (ii) any transfer involved in the issuance or delivery of certificates for shares of Common Stock in a Repurchase Notice name other than that of the Holder of the Securities being repurchased, and no such issuance or Fundamental Change Repurchase Notice delivery shall be made unless and until the Person requesting such issuance or delivery has paid to the Company the amount of any such tax or duty or has established, to the satisfaction of the Company, that such tax or duty has been paid.
(9) If shares of Common Stock to be delivered upon repurchase of a Security are to be registered in accordance a name other than that of the beneficial owner of such Security, then such Holder must deliver to the Trustee a Surrender Certificate, dated the date of surrender of such Restricted Security and signed by such beneficial owner, as to compliance with the Applicable Procedures restrictions on transfer applicable to such Restricted Security. Neither the Trustee nor any Registrar or Transfer Agent or other agents shall be required to register in a name other than that of the Depositarybeneficial owner shares of Common Stock issued upon repurchase of any such Restricted Security not so accompanied by a properly completed Surrender Certificate.
(10) All Securities delivered for repurchase shall be delivered to the Trustee to be canceled at the direction of the Trustee, which shall dispose of the same as provided in Section 3.9.
Appears in 1 contract
Samples: Indenture (Analog Devices Inc)
Notices; Method of Exercising Repurchase Right, Etc. (a) Unless the Company shall have theretofore called for redemption all of the outstanding Outstanding Securities, the Company shall give to the Trustee, the Paying Agent and all Holders of Securities, in the manner provided in this Section 3.4, a notice containing the information required pursuant to the following provisions of this Section 3.4(a) (the "Company Notice") (i) on or before the 20th Business Day prior to the Repurchase Date or, in the event of a Fundamental Change arising from a Change of Control, the anticipated Effective Date (but in no event earlier than 45 days prior to the Repurchase Date or anticipated Effective Date, as the case may be), and (ii) within 15 Business Days 30th day after the Company knows or reasonably should know of the occurrence of a Fundamental Change that arises as a result of any Termination of Trading. Prior to or concurrently with the delivery of any Company Noticein Control, the Company will issue a press release or publish such information on the Company's then existing website including the information required to be included in such Company Notice hereunder. The Company shall also deliver a copy of any Company Notice to the Trustee. At or, at the request and expense of the Company on or before the fifth Business Day prior 30th day after such occurrence, the Trustee, shall give to all Holders of Securities, in the manner provided in Section 1.6, notice (the ----------- "Company Notice") of the occurrence of the Change of Control and of the repurchase right set forth herein arising as a result thereof and the Company shall issue a Press Release including all relevant information required to be included in such Company Notice. The Company shall also deliver a copy of such notice of a repurchase right to the date on which the Company Notice is to be mailed, the Trustee shall provide the Company Notice to the Holders in accordance with the provisions of this IndentureTrustee. Each Company Notice notice of a repurchase right shall state:
(i1) the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be,
(ii2) the date by which the repurchase right must be exercised,
(iii3) the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, and whether the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, shall be paid by the Company in cash or by delivery of shares of Common Stock, or a specified combination thereof and the percentage of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, that will be paid in shares of Common Stock (which indication shall be irrevocable, subject to the satisfaction (or waiver) of the conditions set forth in Section 3.3),.
(iv) if the notice relates to the occurrence of a Fundamental Change, the events causing the Fundamental Change and the date of the Fundamental Change,
(v) that Securities with respect to which a Holder gives a Repurchase Notice or Fundamental Change Repurchase Notice may be converted only if the Holder withdraws the Repurchase Notice or Fundamental Change Repurchase Notice as to such Securities in accordance with the terms of this Indenture,
(vi4) a description of the procedure that which a Holder must follow to exercise a repurchase right, and the place or places where such Securities are to be surrendered for payment of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, and accrued but unpaid interest (and Liquidated Damages)interest, if any, to, but excluding, the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be,
(vii5) that on the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be, the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, and accrued but unpaid interest (and Liquidated Damages)interest, if any, to, but excluding, the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be, will become due and payable upon each such Security designated by the Holder to be repurchased, and that interest thereon shall cease to accrue on and after said date,
(viii6) the Conversion Price Rate then in effect, the date on which the right to convert the principal amount of the Securities to be repurchased will terminate and the place or places where such Securities may be surrendered for conversion,
(ix7) the place or places that the Security certificate (including the Election of Holder to Require Repurchase attached thereto) and the Repurchase Notice (as defined below) required by Section 2.2 shall be delivered, and, if the Security is a Restricted Security, the place or places that the Transfer Certificate in the form set forth in Exhibit C, required by Section 2.12 shall be delivered,
(x) 8) the name and address of the Paying Agent and Conversion Agent, and
(xi) if the notice relates to a Fundamental Change, the estimated amount of any Make-Whole Premium and the respective percentages CUSIP number or numbers of such Make-Whole Premium that will be paid (as contemplated by Section 6.1(b)) in shares of Common Stock and in cash (which indication shall be irrevocable), subject to the satisfaction (or waiver) of the conditions set forth in Section 6.1(c), in the event that a Holder should, in lieu of electing to have Securities repurchased on the Fundamental Change Repurchase Date, elect to convert such Securities during the Fundamental Change Conversion Period, and
(xii) any other information to be included therein pursuant to Section 6.1Securities. No failure of the Company to give the foregoing notices or defect therein shall limit any Holder's right to exercise a repurchase right or affect the validity of the proceedings for the repurchase of Securities. If any of the foregoing provisions or other provisions of this Article III are inconsistent with applicable law, such law shall govern.
(b) To exercise a repurchase right pursuant to Section 3.1 or Section 3.2right, a Holder shall deliver to the Paying Agent Trustee on or before the 30th day after the date of the Company Notice (i) written notice (in the case of a repurchase pursuant to Section 3.1, a "Repurchase Notice" and, in the case of a repurchase pursuant to Section 3.2, a "Fundamental Change Repurchase Notice") of the Holder's exercise of such right, which notice shall set forth the name of the Holder, the principal amount of the Securities to be repurchased (and, if any Security is to repurchased in part, the serial number thereof, the portion of the principal amount thereof to be repurchased (which portion must be in principal amounts of $1,000 or a whole multiple of $1,000) and the name of the Person in which the portion thereof to remain outstanding Outstanding after such repurchase is to be registered), if certificated, the certificate numbers of the Securities to be repurchased, ) and a statement that an election to exercise the repurchase right pursuant to the terms and conditions specified in the Securities and the Indenture is being made thereby, and, in the event that any portion of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, shall be paid in shares of Common Stock, the name or names (with addresses) in which the certificate or certificates for shares of Common Stock shall be issued, and (ii) the Securities with respect to which the Repurchase Notice or Fundamental Change Repurchase Notice relates at any time after delivery repurchase right is being exercised. Such written notice shall be irrevocable, except that the right of the Repurchase Notice or the Fundamental Change Repurchase Notice, as the case may be (together with all necessary endorsements), at the offices of the Paying Agent, such delivery being a condition Holder to receipt by the Holder of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, thereof; provided, however, that such Repurchase Price or Fundamental Change Repurchase Price, as the case may be, shall be so paid pursuant to this Section 3.4(b) only if convert the Securities so delivered with respect to which the Paying Agent shall conform in all respects to the description thereof in the related Repurchase Notice or Fundamental Change Repurchase Notice. In the case of a repurchase right pursuant to Section 3.1 and Section 3.2, such delivery is being exercised shall be at any time from the opening of business on the date that is 20 Business Days prior to the Repurchase Date continue until the close of business on the second Business Day Repurchase Date.
(c) In the event a repurchase right shall be exercised in accordance with the terms hereof, the Company shall pay or cause to be paid to the Trustee the Repurchase Price in cash or shares of Common Stock, as provided above, for payment to the Holder on the Repurchase Date or, if shares of Common Stock are to be paid, as promptly after the Repurchase Date as practicable; provided, -------- however, that installments of interest on the Securities whose Stated Maturity ------- is on or prior to the Repurchase Date shall be payable in cash to the Holders of such Securities, or one or more Predecessor Securities, registered as such at the Fundamental Change close of business on the relevant Record Date.
(d) If any Security (or portion thereof) surrendered for repurchase shall not be so paid on the Repurchase Date, the principal amount of such Security (or portion thereof, as the case may be) shall, subject until paid, bear interest to extension the extent permitted by applicable law from the Repurchase Date at the rate of _____% per annum, and each Security shall remain convertible into Common Stock until the principal of such Security (or portion thereof, as the case may be) shall have been paid or duly provided for.
(e) Any Security which is to comply with be repurchased only in part shall be surrendered to the Trustee (with, if the Company or the Trustee so requires, due endorsement by, or a written instrument of transfer in form satisfactory to the Company and the Trustee duly executed by, the Holder thereof or his attorney duly authorized in writing), and the Company shall execute, and the Trustee shall authenticate and make available for delivery to the Holder of such Security without service charge, a new Security or Securities, containing identical terms and conditions, each in an authorized denomination in aggregate principal amount equal to and in exchange for the unrepurchased portion of the principal of the Security so surrendered.
(f) Any issuance of shares of Common Stock in respect of the Repurchase Price shall be deemed to have been effected immediately prior to the close of business on the Repurchase Date and the Person or Persons in whose name or names any certificate or certificates for shares of Common Stock shall be issuable upon such repurchase shall be deemed to have become on the Repurchase Date the holder or holders of record of the shares represented thereby; provided, -------- however, that any surrender for repurchase on a date when the stock transfer ------- books of the Company shall be closed shall constitute the Person or Persons in whose name or names the certificate or certificates for such shares are to be issued as the record holder or holders thereof for all purposes at the opening of business on the next succeeding day on which such stock transfer books are open. No payment or adjustment shall be made for dividends or distributions on any Common Stock issued upon repurchase of any Security declared prior to the Repurchase Date.
(g) No fractions of shares shall be issued upon repurchase of Securities. If more than one Security shall be repurchased from the same Holder and the Repurchase Price shall be payable in shares of Common Stock, the number of full shares which shall be issuable upon such repurchase shall be computed on the basis of the aggregate principal amount of the Securities so repurchased. Instead of any fractional share of Common Stock which would otherwise be issuable on the repurchase of any Security or Securities, the Company will deliver to the applicable lawHolder its check for the current market value of such fractional share. Owners The current market value of beneficial interests in Global a fraction of a share is determined by multiplying the current market price of a full share by the fraction, and rounding the result to the nearest cent. For purposes of this Section, the current market price of a share of Common Stock is the Closing Price Per Share of the Common Stock on the Trading Day immediately preceding the Repurchase Date.
(h) Any issuance and delivery of certificates for shares of Common Stock on repurchase of Securities shall provide a Repurchase Notice be made without charge to the Holder of Securities being repurchased for such certificates or Fundamental Change Repurchase Notice for any tax or duty in accordance with the Applicable Procedures respect of the Depositaryissuance or delivery of such certificates or the securities represented thereby; provided, however, that the Company shall not be required -------- ------- to pay any tax or duty which may be payable in respect of (i) income of the Holder or (ii) any transfer involved in the issuance or delivery of certificates for shares of Common Stock in a name other than that of the Holder of the Securities being repurchased, and no such issuance or delivery shall be made unless and until the Person requesting such issuance or delivery has paid to the Company the amount of any such tax or duty or has established, to the satisfaction of the Company, that such tax or duty has been paid.
(i) All Securities delivered for repurchase shall be delivered to the Trustee to be canceled by the Trustee and disposed of as provided in Section ------- 3.9. ---- -86-
Appears in 1 contract
Samples: Indenture (Medarex Inc)
Notices; Method of Exercising Repurchase Right, Etc. (a) Unless the Company shall have theretofore called for redemption of all of the outstanding Outstanding Securities, on or before the 30th day after the occurrence of a Fundamental Change, the Company or, at the request and expense of the Company, the Trustee, shall give to the Trustee, the Paying Agent and all Holders of Securities, in the manner provided in this Section 3.41.6, a notice containing the information required pursuant to the following provisions of this Section 3.4(a) (the "Company Notice") (i) on or before the 20th Business Day prior to the Repurchase Date or, in the event of a Fundamental Change arising from a Change of Control, the anticipated Effective Date (but in no event earlier than 45 days prior to the Repurchase Date or anticipated Effective Date, as the case may be), and (ii) within 15 Business Days after the Company knows or reasonably should know of the occurrence of a the Fundamental Change that arises and of the repurchase right set forth herein arising as a result of any Termination of Trading. Prior to or concurrently with the delivery of any Company Notice, the Company will issue a press release or publish such information on the Company's then existing website including the information required to be included in such Company Notice hereunderthereof. The Company shall also deliver a copy of any such Company Notice to the Trustee. At the request and expense Each notice of the Company on or before the fifth Business Day prior to the date on which the Company Notice is to be mailed, the Trustee shall provide the Company Notice to the Holders in accordance with the provisions of this Indenture. Each Company Notice a repurchase right shall state:
(i1) the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be,
(ii2) the date by which the repurchase right must be exercised,
(iii3) the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, and whether the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, shall be paid by the Company in cash or by delivery of shares of Common Stock, or a specified combination thereof and the percentage of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, that will be paid in shares of Common Stock (which indication shall be irrevocable, subject to the satisfaction (or waiver) of the conditions set forth in Section 3.3),
(iv) if the notice relates to the occurrence of a Fundamental Change, the events causing the Fundamental Change and the date of the Fundamental Change,
(v) that Securities with respect to which a Holder gives a Repurchase Notice or Fundamental Change Repurchase Notice may be converted only if the Holder withdraws the Repurchase Notice or Fundamental Change Repurchase Notice as to such Securities in accordance with the terms of this Indenture,
(vi4) a description of the procedure that which a Holder must follow to exercise a repurchase right, and the place or places where such Securities are to be surrendered for payment of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, and accrued but unpaid interest (and Liquidated Damages)interest, if any, to, but excluding, the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be,
(vii5) that on the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be, the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, and accrued but unpaid interest (and Liquidated Damages)interest, if any, to, but excluding, the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be, will become due and payable upon each such Security designated by the Holder to be repurchased, and that interest thereon shall cease to accrue on and after said date,, and
(viii6) the Conversion Price then in effect,
(ix) , the date on which the right to convert the principal amount of the Securities to be repurchased will terminate and the place or places that where such Securities may be surrendered for conversion. So long as the Security certificate (including Securities are listed on the Election of Holder to Require Repurchase attached thereto) Luxembourg Stock Exchange and the Repurchase Notice (as defined below) Luxembourg Stock Exchange shall be deliveredso require, and, if on or before the Security is a Restricted Security, 30th day after the place or places that the Transfer Certificate in the form set forth in Exhibit C, required by Section 2.12 shall be delivered,
(x) the name and address occurrence of the Paying Agent and Conversion Agent, and
(xi) if the notice relates to a Fundamental Change, the estimated amount Company or, at the request of any Make-Whole Premium and the respective percentages Company, the Paying Agent in Luxembourg, will provide notice of such Make-Whole Premium that will be paid (as contemplated by Section 6.1(b)) in shares of Common Stock and in cash (which indication shall be irrevocable), subject to the satisfaction (or waiver) of the conditions set forth in Section 6.1(c), in the event that a Holder should, in lieu of electing to have Securities repurchased on the Fundamental Change Repurchase Dateby publishing such notice in an Authorized Newspaper in Luxembourg, elect to convert such Securities during the Fundamental Change Conversion Periodor, and
(xii) any other information to be included therein pursuant to Section 6.1if not practicable in Luxembourg, elsewhere in a Western European city. No failure of the Company to give the foregoing notices or defect therein shall limit any Holder's right to exercise a repurchase right or affect the validity of the proceedings for the repurchase of Securities. If any of the foregoing provisions or other provisions of this Article III are inconsistent with applicable law, such law shall govern.
(b) To exercise a repurchase right pursuant to Section 3.1 or Section 3.2right, a Holder shall deliver to the Trustee or any Paying Agent on or before the 30th day after the date of the Company Notice (i) written notice (in the case of a repurchase pursuant to Section 3.1, a "Repurchase Notice" and, in the case of a repurchase pursuant to Section 3.2, a "Fundamental Change Repurchase Notice") of the Holder's exercise of such right, which notice shall set forth the name of the Holder, the principal amount of the Securities to be repurchased (and, if any Security is to be repurchased in 107 117 part, the serial number thereof, the portion of the principal amount thereof to be repurchased (which portion must be in principal amounts of $1,000 or a whole multiple of $1,000) and the name of the Person in which the portion thereof to remain outstanding Outstanding after such repurchase is to be registered), if certificated, the certificate numbers of the Securities to be repurchased, ) and a statement that an election to exercise the repurchase right pursuant to the terms and conditions specified in the Securities and the Indenture is being made thereby, and, in the event that any portion of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, shall be paid in shares of Common Stock, the name or names (with addresses) in which the certificate or certificates for shares of Common Stock shall be issued, and (ii) the Securities with respect to which the Repurchase Notice or Fundamental Change Repurchase Notice relates at any time after delivery repurchase right is being exercised. Such written notice shall be irrevocable, except that the right of the Repurchase Notice or the Fundamental Change Repurchase Notice, as the case may be (together with all necessary endorsements), at the offices of the Paying Agent, such delivery being a condition Holder to receipt by the Holder of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, thereof; provided, however, that such Repurchase Price or Fundamental Change Repurchase Price, as the case may be, shall be so paid pursuant to this Section 3.4(b) only if convert the Securities so delivered with respect to which the Paying Agent shall conform in all respects to the description thereof in the related Repurchase Notice or Fundamental Change Repurchase Notice. In the case of a repurchase right pursuant to Section 3.1 and Section 3.2, such delivery is being exercised shall be at any time from the opening of business on the date that is 20 Business Days prior to the Repurchase Date continue until the close of business on the second Business Day prior to the Repurchase Date Date.
(c) In the event a repurchase right shall be exercised in accordance with the terms hereof, the Company shall pay or cause to be paid to the Trustee or the Fundamental Change Paying Agent the Repurchase Price in cash, as provided above, for payment to the Holder on the Repurchase Date together with accrued and unpaid interest to, but excluding, the Repurchase Date payable with respect to the Securities as to which their purchase right has been exercised; provided, however, that installments of interest that mature on or prior to the Repurchase Date shall be payable in cash, in the case of Securities, to the Holders of such Securities, or one or more Predecessor Securities, registered as such at the close of business on the relevant Regular Record Date.
(d) If any Security (or portion thereof) surrendered for repurchase shall not be so paid on the Repurchase Date, the principal amount of such Security (or portion thereof, as the case may be) shall, subject until paid, bear interest to extension the extent permitted by applicable law from the Repurchase Date at the rate of 5% per annum, and each Security shall remain convertible into Common Stock until the principal of such Security (or portion thereof, as the case may be) shall have been paid or duly provided for.
(e) Any Security which is to comply with applicable law. Owners be repurchased only in part shall be surrendered to the Trustee (with, if the Company or the Trustee so requires, due endorsement by, or a written instrument of beneficial interests transfer in Global Securities form satisfactory to the Company and the Trustee duly executed by, the Holder thereof or his attorney duly authorized in writing), and the Company shall provide execute, and the Trustee shall authenticate and make available for delivery to the Holder of such Security without service charge, a Repurchase Notice new Security or Fundamental Change Repurchase Notice Securities, containing identical terms and conditions, each in accordance with an authorized denomination in aggregate principal amount equal to and in exchange for the Applicable Procedures unrepurchased portion of the Depositaryprincipal of the Security so surrendered.
(f) All securities delivered for repurchase shall be delivered to the Trustee, the Paying Agent or any other agents (as shall be set forth in the Company Notice) to be canceled by or at the direction of the Trustee, which shall dispose of the same as provided in Section 3.9.
Appears in 1 contract
Notices; Method of Exercising Repurchase Right, Etc. (a) Unless the Company shall have theretofore called for redemption all of the outstanding Outstanding Securities, prior to or on the 30th day after the occurrence of a Fundamental Change, the Company, or, at the written request and expense of the Company prior to or on the 30th day after such occurrence, the Trustee shall give to the Trustee, the Paying Agent and all Holders of SecuritiesSecurities notice, in the manner provided in this Section 3.414.2 hereof, a notice containing the information required pursuant to the following provisions of this Section 3.4(a) (the "Company Notice") (i) on or before the 20th Business Day prior to the Repurchase Date or, in the event of a Fundamental Change arising from a Change of Control, the anticipated Effective Date (but in no event earlier than 45 days prior to the Repurchase Date or anticipated Effective Date, as the case may be), and (ii) within 15 Business Days after the Company knows or reasonably should know of the occurrence of a the Fundamental Change that arises and of the Repurchase Right set forth herein arising as a result of any Termination of Trading. Prior to or concurrently with thereof (the delivery of any “Company Notice, the Company will issue a press release or publish such information on the Company's then existing website including the information required to be included in such Company Notice hereunder”). The Company shall also deliver a copy of any Company Notice such notice of a Repurchase Right to the Trustee. At the request and expense Each notice of the Company on or before the fifth Business Day prior to the date on which the Company Notice is to be mailed, the Trustee shall provide the Company Notice to the Holders in accordance with the provisions of this Indenture. Each Company Notice a Repurchase Right shall state:
(i1) the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be,;
(ii2) the date by which the repurchase right Repurchase Right must be exercised,;
(iii3) the Repurchase Price or the Fundamental Change Repurchase Priceand accrued and unpaid interest, as the case may beif any, and whether the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, shall be paid by the Company in cash or by delivery of shares of Common Stock, or a specified combination thereof and the percentage of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, that will be paid in shares of Common Stock (which indication shall be irrevocable, subject to the satisfaction (or waiver) of the conditions set forth in Section 3.3),;
(iv) if the notice relates to the occurrence of a Fundamental Change, the events causing the Fundamental Change and the date of the Fundamental Change,
(v) that Securities with respect to which a Holder gives a Repurchase Notice or Fundamental Change Repurchase Notice may be converted only if the Holder withdraws the Repurchase Notice or Fundamental Change Repurchase Notice as to such Securities in accordance with the terms of this Indenture,
(vi4) a description of the procedure that which a Holder must follow to exercise a repurchase rightRepurchase Right, and the place or places where such Securities Securities, are to be surrendered for payment of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, and accrued but and unpaid interest (and Liquidated Damages)interest, if any, to, but excluding, the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be,;
(vii5) that on the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be, the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, and accrued but and unpaid interest (and Liquidated Damages)interest, if any, to, but excluding, the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be, will become due and payable upon each such Security designated by the Holder to be repurchased, and that interest thereon shall cease to accrue on and after said date,;
(viii6) the Conversion Price Rate then in effect,, the date on which the right to convert the principal amount of the Securities to be repurchased will terminate and the place where such Securities may be surrendered for conversion;
(ix7) the place or places that where such Securities, together with the Security Option to Elect Repayment Upon a Change of Control certificate (including the Election included in Exhibit A annexed hereto are to be delivered for payment of Holder to Require Repurchase attached thereto) and the Repurchase Notice (as defined below) shall be delivered, andPrice and accrued and unpaid interest, if the Security is a Restricted Security, the place or places that the Transfer Certificate in the form set forth in Exhibit C, required by Section 2.12 shall be delivered,
(x) the name and address of the Paying Agent and Conversion Agent, any; and
(xi) if the notice relates to 8) whether a Fundamental Change, the estimated amount of any Make-Whole Premium shall be paid by the Company and the respective percentages of whether such Make-Whole Premium that will shall be paid (as contemplated in cash or by Section 6.1(b)) in shares delivery of Common Stock and in cash (which indication shall be irrevocable), subject to the satisfaction (or waiver) of the conditions set forth in Section 6.1(c), in the event that a Holder should, in lieu of electing to have Securities repurchased on the Fundamental Change Repurchase Date, elect to convert such Securities during the Fundamental Change Conversion Period, and
(xii) any other information to be included therein pursuant to Section 6.1Stock. No failure of the Company to give the foregoing notices or defect therein shall limit any Holder's ’s right to exercise a repurchase right Repurchase Right or affect the validity of the proceedings for the repurchase of Securities. If any of the foregoing provisions or other provisions of this Article III 11 are inconsistent with applicable law, such law shall govern.
(b) To exercise a repurchase right pursuant to Section 3.1 or Section 3.2Repurchase Right, a Holder shall deliver to the Paying Agent Trustee prior to or on the 30th day after the date of the Company Notice:
(i1) written notice (in the case of a repurchase pursuant to Section 3.1, a "Repurchase Notice" and, in the case of a repurchase pursuant to Section 3.2, a "Fundamental Change Repurchase Notice") of the Holder's ’s exercise of such right, which notice shall set forth the name of the Holder, the principal amount of the Securities to be repurchased (and, if any Security is to be repurchased in part, the serial number thereof, the portion of the principal amount thereof to be repurchased (which portion must be in principal amounts of $1,000 or a whole multiple of $1,000repurchased) and the name of the Person in which the portion thereof to remain outstanding after such repurchase is to be registered), if certificated, the certificate numbers of the Securities to be repurchased, and a statement that an election to exercise the repurchase right pursuant to the terms and conditions specified in the Securities and the Indenture Repurchase Right is being made thereby, and, in the event that any portion of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, shall be paid in shares of Common Stock, the name or names (with addresses) in which the certificate or certificates for shares of Common Stock shall be issued, and and
(ii2) the Securities with respect to which the Repurchase Notice or Fundamental Change Repurchase Notice relates at any time after delivery Right is being exercised. Such written notice shall be irrevocable, except that the right of the Repurchase Notice or Holder to convert the Fundamental Change Repurchase Notice, as the case may be (together Securities with all necessary endorsements), at the offices of the Paying Agent, such delivery being a condition respect to receipt by the Holder of which the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, thereof; provided, however, that such Repurchase Price or Fundamental Change Repurchase Price, as the case may be, Right is being exercised shall be so paid pursuant to this Section 3.4(b) only if the Securities so delivered to the Paying Agent shall conform in all respects to the description thereof in the related Repurchase Notice or Fundamental Change Repurchase Notice. In the case of a repurchase right pursuant to Section 3.1 and Section 3.2, such delivery shall be at any time from the opening of business on the date that is 20 Business Days prior to the Repurchase Date continue until the close of business on the second Business Day prior to immediately preceding the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be, subject to extension to comply with applicable law. Owners of beneficial interests in Global Securities shall provide a Repurchase Notice or Fundamental Change Repurchase Notice in accordance with the Applicable Procedures of the Depositary.
Appears in 1 contract
Samples: Indenture (Cv Therapeutics Inc)
Notices; Method of Exercising Repurchase Right, Etc. (a1) Unless the Company shall have theretofore called for redemption all of the outstanding Outstanding Securities, the Company shall give to the Trustee, the Paying Agent and all Holders of Securities, in the manner provided in this Section 3.4, a notice containing the information required pursuant to the following provisions of this Section 3.4(a) (the "Company Notice") (i) on or before the 20th Business Day prior to the Repurchase Date or, in the event of a Fundamental Change arising from a Change of Control, the anticipated Effective Date (but in no event earlier than 45 days prior to the Repurchase Date or anticipated Effective Date, as the case may be), and (ii) within 15 Business Days 30th day after the Company knows or reasonably should know of the occurrence of a Fundamental Change that arises as a result of any Termination of Trading. Prior to or concurrently with the delivery of any Company Noticein Control, the Company will issue a press release or publish such information on the Company's then existing website including the information required to be included in such Company Notice hereunder. The Company shall also deliver a copy of any Company Notice to the Trustee. At or, at the request and expense of the Company on or before the fifth Business Day prior 30th day after such occurrence, the Trustee, shall give to all Holders of Securities, in the manner provided in Section 1.6, notice (the "COMPANY NOTICE") of the occurrence of the Change in Control and of the repurchase right set forth herein arising as a result thereof. The Company shall also deliver a copy of such notice of a repurchase right to the date on which the Company Notice is to be mailed, the Trustee shall provide the Company Notice to the Holders in accordance with the provisions of this IndentureTrustee. Each Company Notice notice of a repurchase right shall state:
(i) the Repurchase Date or the Fundamental Change Repurchase Date, as the case may beand Record Date (if applicable),
(ii) the date by which the repurchase right must be exercised,
(iii) the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, and whether the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, shall be paid by the Company in cash or by delivery of shares of Common Stock, or a specified combination thereof and the percentage of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, that will be paid in shares of Common Stock (which indication shall be irrevocable, subject to the satisfaction (or waiver) of the conditions set forth in Section 3.3)Ordinary Shares,
(iv) if the notice relates to the occurrence of a Fundamental Change, the events causing the Fundamental Change and the date of the Fundamental Change,
(v) that Securities with respect to which a Holder gives a Repurchase Notice or Fundamental Change Repurchase Notice may be converted only if the Holder withdraws the Repurchase Notice or Fundamental Change Repurchase Notice as to such Securities in accordance with the terms of this Indenture,
(vi) a description of the procedure that a Holder must follow to exercise a repurchase right, and the place or places where such Securities are to be surrendered for payment of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, and accrued but and unpaid interest (and Liquidated Damages), if any, to, but excluding, the Repurchase Date or the Fundamental Change Repurchase Date, as the case may beinterest,
(viiv) that on the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be, the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, and accrued but and unpaid interest (and Liquidated Damages), if any, to, but excluding, the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be, will become due and payable upon each such Security designated by the Holder to be repurchased, repurchased and that interest thereon shall cease to accrue on and after said date,
(viiivi) the Conversion Price then Rate than in effect, the date on which the right to convert the principal amount of the Securities to be repurchased will terminate and the place or places where such Securities may be surrendered for conversion,
(ixvii) the place or places that the Security certificate (including the Notice of Election of Holder to Require Repurchase attached thereto) and the Repurchase Notice (hereto as defined below) EXHIBIT E, shall be delivered, and, if the Security is a Restricted Security, the place or places that the Transfer Certificate in and the form set forth in Exhibit C, required by Section 2.12 shall be delivered,
(x) the name and address of the Paying Agent and Conversion Agentsuch notice, and
(xiviii) if the notice relates to a Fundamental ChangeCUSIP, the estimated amount of any Make-Whole Premium and the respective percentages CINS, ISIN and/or Common Code numbers of such Make-Whole Premium that will be paid (as contemplated by Section 6.1(b)) in shares of Common Stock and in cash (which indication shall be irrevocable), subject to the satisfaction (or waiver) of the conditions set forth in Section 6.1(c), in the event that a Holder should, in lieu of electing to have Securities repurchased on the Fundamental Change Repurchase Date, elect to convert such Securities during the Fundamental Change Conversion Period, and
(xii) any other information to be included therein pursuant to Section 6.1Securities. No failure of the Company to give the foregoing notices or defect therein shall limit any Holder's right to exercise a repurchase right or affect the validity of the proceedings for the repurchase of Securities. If any of the foregoing provisions or other provisions of this Article III are inconsistent with applicable law, such law shall govern.
(b2) To exercise a repurchase right pursuant to Section 3.1 or Section 3.2right, a Holder shall deliver to the Paying Agent Trustee on or before the 30th day (ior such greater period as may be required by applicable law) after the date of the Company Notice (A) written notice (in the case of a repurchase pursuant to Section 3.1, a "Repurchase Notice" and, in the case of a repurchase pursuant to Section 3.2, a "Fundamental Change Repurchase Notice") of the Holder's exercise of such right, which notice shall set forth the name of the Holder, the principal amount of the Securities to be repurchased (and, if any Security is to repurchased in part, the serial number thereof, the portion of the principal amount thereof to be repurchased (which portion must be in principal amounts of $1,000 or a whole multiple of $1,000) and the name of the Person in which the portion thereof to remain outstanding Outstanding after such repurchase is to be registered), if certificated, the certificate numbers of the Securities to be repurchased, ) and a statement that an election to exercise the repurchase right pursuant to the terms and conditions specified in the Securities and the Indenture is being made thereby, and, in the event that any portion of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, shall be paid in shares of Common StockOrdinary Shares, the name or names (with addresses) in which the certificate or certificates for shares of Common Stock Ordinary Shares shall be issued, and (iiB) the Securities with respect to which the Repurchase Notice or Fundamental Change Repurchase Notice relates at any time after delivery repurchase right is being exercised. Such written notice shall be irrevocable, except that the right of the Repurchase Notice or the Fundamental Change Repurchase Notice, as the case may be (together with all necessary endorsements), at the offices of the Paying Agent, such delivery being a condition Holder to receipt by the Holder of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, thereof; provided, however, that such Repurchase Price or Fundamental Change Repurchase Price, as the case may be, shall be so paid pursuant to this Section 3.4(b) only if convert the Securities so delivered with respect to which the Paying Agent shall conform in all respects to the description thereof in the related Repurchase Notice or Fundamental Change Repurchase Notice. In the case of a repurchase right pursuant to Section 3.1 and Section 3.2, such delivery is being exercised shall be at any time from the opening of business on the date that is 20 Business Days prior to the Repurchase Date continue until the close of business on the second Business Day immediately preceding the Repurchase Date.
(3) In the event a repurchase right shall be exercised in accordance with the terms hereof, the Company shall pay or cause to be paid to the Trustee the Repurchase Price in cash or Ordinary Shares, as provided above, for payment to the Holder on the Repurchase Date or, if Ordinary Shares are to be paid, as promptly after the Repurchase Date as practicable, together with accrued and unpaid interest to the Repurchase Date payable with respect to the Securities as to which the purchase right has been exercised; PROVIDED, HOWEVER, that instalments of interest that mature on or prior to the Repurchase Date shall be payable in cash to the Holders of such Securities, or one or more Predecessor Securities, registered as such at the Fundamental Change close of business on the relevant Regular Record Date.
(4) If any Security (or portion thereof) surrendered for repurchase shall not be so paid on the Repurchase Date, the principal amount of such Security (or portion thereof, as the case may be) shall, subject until paid, bear interest to extension the extent permitted by applicable law from the Repurchase Date at the rate then in effect per annum, and each Security shall remain convertible into Ordinary Shares until the principal of such Security (or portion thereof, as the case may be) shall have been paid or duly provided for.
(5) Any Security that is to comply be repurchased only in part shall be surrendered to the Trustee (with, if the Company or the Trustee so requires, due endorsement by, or a written instrument of transfer in form satisfactory to the Company and the Trustee duly executed by, the Holder thereof or his attorney duly authorized in writing), and the Company shall execute, and the Trustee shall authenticate and make available for delivery to the Holder of such Security without service charge, a new Security or Securities, containing identical terms and conditions, each in an authorized denomination in aggregate principal amount equal to and in exchange for the unrepurchased portion of the principal of the Security so surrendered.
(6) Any issuance of Ordinary Shares in respect of the Repurchase Price shall be deemed to have been effected immediately prior to the close of business on the Repurchase Date and the Person or Persons in whose name or names any certificate or certificates for Ordinary Shares shall be issuable upon such repurchase shall be deemed to have become on the Repurchase Date the holder or holders of record of the shares represented thereby; PROVIDED, HOWEVER, that any surrender for repurchase on a date when the stock transfer books of the Company shall be closed shall constitute the Person or Persons in whose name or names the certificate or certificates for such shares are to be issued as the record holder or holders thereof for all purposes at the opening of business on the next succeeding day on which such stock transfer books are open. No payment or adjustment shall be made for dividends or distributions on any Ordinary Shares issued upon repurchase of any Security declared prior to the Repurchase Date.
(7) No fractions of shares shall be issued upon repurchase of Securities. If more than one Security shall be repurchased from the same Holder and the Repurchase Price shall be payable in Ordinary Shares, the number of full shares that shall be issuable upon such repurchase shall be computed on the basis of the aggregate principal amount of the Securities so repurchased. Instead of any fractional share of Ordinary Shares that would otherwise be issuable on the repurchase of any Security or Securities, the Company will deliver to the applicable Holder its check for the current market value of such fractional share. The current market value of a fraction of a share is determined by multiplying the current market price of a full share by the fraction and rounding the result to the nearest cent. For purposes of this Section 12.3, the current market price of a share of Ordinary Shares is the average of the high and low sales price per Share of the Ordinary Shares on the Trading Day immediately preceding the Repurchase Date.
(8) Any issuance and delivery of certificates for Ordinary Shares on repurchase of Securities shall be made without charge to the Holder of Securities being repurchased for such certificates or for any tax or duty in respect of the issuance or delivery of such certificates or the securities represented thereby; PROVIDED, HOWEVER, that the Company shall not be required to pay any tax or duty that may be payable in respect of (1) income of the Holder or (2) any transfer involved in the issuance or delivery of certificates for Ordinary Shares in a name other than that of the Holder of the Securities being repurchased, and no such issuance or delivery shall be made unless and until the Person requesting such issuance or delivery has paid to the Company the amount of any such tax or duty or has established, to the satisfaction of the Company, that such tax or duty has been paid.
(9) All Securities delivered for repurchase shall be delivered to the Trustee to be canceled at the direction of the Trustee, which shall dispose of the same as provided in Section 3.8.
(10) Any repurchase of Securities pursuant to this Article 12 will be made in compliance with all applicable laws, rules and regulations, including, if applicable, Regulation 14E under the Exchange Act and the rules thereunder and all other applicable federal state and securities laws. If any of the provisions of this Article 12 are inconsistent with applicable law. Owners of beneficial interests in Global Securities laws and regulations, such laws and regulations shall provide govern, and the Company's compliance with such laws and regulations shall not be deemed to cause a Repurchase Notice or Fundamental Change Repurchase Notice in accordance with the Applicable Procedures breach of the DepositaryCompany's obligations under this Indenture.
Appears in 1 contract
Samples: Indenture (Drdgold LTD)
Notices; Method of Exercising Repurchase Right, Etc. (a) Unless the Company shall have theretofore called for redemption all of the outstanding Outstanding Securities, on or before the date that is 30 Business Days after the occurrence of a Change in Control, the Company shall give notice to the Trustee, the Paying Agent and all Holders of Securities, in the manner provided in this Section 3.4, a notice containing the information required pursuant Outstanding Securities and to the following provisions of this Section 3.4(a) Trustee (the "Company Notice") (i) on or before the 20th Business Day prior to the Repurchase Date or, in the event of a Fundamental Change arising from a Change of Control, the anticipated Effective Date (but in no event earlier than 45 days prior to the Repurchase Date or anticipated Effective Date, as the case may be), and (ii) within 15 Business Days after the Company knows or reasonably should know of the occurrence of a Fundamental the Change that arises in Control and of the repurchase right set forth herein arising as a result of any Termination of Trading. Prior to or concurrently with the delivery of any Company Notice, the Company will issue a press release or publish such information on the Company's then existing website including the information required to be included in such Company Notice hereunder. The Company shall also deliver a copy of any Company Notice to the Trustee. At the request and expense of the Company on or before the fifth Business Day prior to the date on which the Company Notice is to be mailed, the Trustee shall provide the Company Notice to the Holders in accordance with the provisions of this Indenturethereof. Each Company Notice shall state:
(i) the Repurchase Date or date of such Change in Control and, briefly, the Fundamental events causing such Change Repurchase Date, as the case may be,in Control;
(ii) the date by which the repurchase right Change in Control Purchase Notice (as defined below) must be exercised,delivered;
(iii) the Repurchase Price or Date;
(iv) the Fundamental Change Repurchase Price, as the case may be, and whether the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, shall be paid by the Company in cash or by delivery of shares of Common Stock, or a specified combination thereof and the percentage of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, that will be paid in shares of Common Stock (which indication shall be irrevocable, subject to the satisfaction (or waiver) of the conditions set forth in Section 3.3),
(iv) if the notice relates to the occurrence of a Fundamental Change, the events causing the Fundamental Change and the date of the Fundamental Change,;
(v) that Securities with respect to which a Holder gives a Repurchase Notice or Fundamental Change Repurchase Notice may be converted only if the Holder withdraws the Repurchase Notice or Fundamental Change Repurchase Notice as to such Securities in accordance with the terms of this Indenture,
(vi) a description of the procedure that a Holder must follow to exercise a repurchase right, and ;
(vi) the procedures for withdrawing a Change in Control Purchase Notice;
(vii) the place or places where such Securities are to be surrendered for payment of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, and accrued but unpaid interest (and Liquidated Damages), if any, to, but excluding, the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be,
(vii) that on the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be, the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, and accrued but unpaid interest (and Liquidated Damages), if any, to, but excluding, the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be, will become due and payable upon each such Security designated by the Holder to be repurchased, and that interest thereon shall cease to accrue on and after said date,for conversion;
(viii) briefly, the Conversion Price then in effect,conversion rights of Holders of Securities;
(ix) the place or places that the Security certificate (including the Election of Holder to Require Repurchase attached Conversion Rate and any adjustments thereto) and the Repurchase Notice (as defined below) shall be delivered, ; and, if the Security is a Restricted Security, the place or places that the Transfer Certificate in the form set forth in Exhibit C, required by Section 2.12 shall be delivered,
(x) that Holders who want to convert Securities must satisfy the name and address of the Paying Agent and Conversion Agent, and
(xi) if the notice relates to a Fundamental Change, the estimated amount of any Make-Whole Premium and the respective percentages of such Make-Whole Premium that will be paid (as contemplated by Section 6.1(b)) in shares of Common Stock and in cash (which indication shall be irrevocable), subject to the satisfaction (or waiver) of the conditions requirements set forth in Section 6.1(c)the Securities. Promptly after giving the Company Notice to the Holders of Outstanding Securities and to the Trustee, in the event that Company shall cause a Holder should, in lieu of electing to have Securities repurchased on the Fundamental Change Repurchase Date, elect to convert such Securities during the Fundamental Change Conversion Period, and
(xii) any other information to be included therein pursuant to Section 6.1. No failure copy of the Company Notice to give the foregoing notices be published in The Wall Street Journal or defect therein shall limit any Holder's right to exercise a repurchase right or affect the validity another daily newspaper of the proceedings for the repurchase of Securities. If any of the foregoing provisions or other provisions of this Article III are inconsistent with applicable law, such law shall governnational circulation.
(b) If any Senior Indebtedness is outstanding at the time of the occurrence of a Change in Control, and such Senior Indebtedness prohibits by its terms the Company's repurchase of its Securities upon the occurrence of a Change in Control, the Company shall prior to giving the Company Notice either:
(i) repay in full all obligations and terminate all commitments under or in respect of all such Senior Indebtedness or offer to repay in full all obligations and terminate all commitments under or in respect of all such Senior Indebtedness and repay such Senior Indebtedness owed to each holder thereof who has accepted such offer; or
(ii) obtain the requisite consents under all such Senior Indebtedness to permit the Company to repurchase the Securities in accordance herewith.
(c) To exercise a repurchase right pursuant to Section 3.1 or Section 3.2right, a Holder shall must deliver to the Trustee or a Paying Agent at an office or agency maintained by the Company for such purpose in the Borough of Manhattan, The City of New York, prior to the close of business on or before the Repurchase Date, (i) written notice (in the case of a repurchase pursuant to Section 3.1, a "Repurchase Notice" and, in the case of a repurchase pursuant to Section 3.2, a "Fundamental Change Repurchase Notice") of the Holder's exercise of such rightright (the "Change in Control Purchase Notice"), which notice shall set forth (A) the name of the Holder, (B) the certificate numbers of the Securities with respect to which the repurchase right is being exercised, (C) the principal amount of the Securities to be repurchased (and, if any Security is to be repurchased in part, the portion of the principal amount thereof to be repurchased (repurchased, which portion must shall be in principal amounts of $1,000 or a whole multiple integral multiples of $1,000) and the name of the Person in which the portion thereof to remain outstanding after such repurchase is to be registered), if certificated, the certificate numbers of the Securities to be repurchased, and (D) a statement that an election to exercise the repurchase right is being made thereby pursuant to the terms and conditions specified in applicable provisions of the Securities and (ii) surrender the Indenture is being made thereby, and, Securities subject to the Change in Control Purchase Notice.
(d) Unless the event that any portion of Company has elected to pay the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, shall be paid in by delivery of shares of Common Stock, the name on or names (with addresses) in which the certificate or certificates for shares of Common Stock shall be issued, and (ii) the Securities to which the Repurchase Notice or Fundamental Change Repurchase Notice relates at any time after delivery of the Repurchase Notice or the Fundamental Change Repurchase Notice, as the case may be (together with all necessary endorsements), at the offices of the Paying Agent, such delivery being a condition to receipt by the Holder of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, thereof; provided, however, that such Repurchase Price or Fundamental Change Repurchase Price, as the case may be, shall be so paid pursuant to this Section 3.4(b) only if the Securities so delivered to the Paying Agent shall conform in all respects to the description thereof in the related Repurchase Notice or Fundamental Change Repurchase Notice. In the case of a repurchase right pursuant to Section 3.1 and Section 3.2, such delivery shall be at any time from the opening of business on the date that is 20 Business Days prior to the Repurchase Date the Company shall deposit with the Trustee or with the Paying Agent (or, if the Company is acting as its own Paying Agent, segregate and hold in trust as provided in Section 9.03) an amount of money sufficient to pay the Repurchase Price of the Securities that are to be repaid on the Repurchase Date. On the Repurchase Date, the Trustee, a Paying Agent (or, if the Company is acting as its own Paying Agent, the Company) shall repurchase all such Securities validly tendered prior to such date. In the event that a Holder has previously delivered a Change in Control Purchase Notice, but failed to surrender the Security with respect to which such Change in Control Purchase Notice relates, then so long as either (i) the Company has elected to pay the Repurchase Price by delivery of shares of Common Stock or (ii) the Trustee or the Paying Agent holds (or, if the Company is acting as its own Paying Agent, the Company segregates and holds in trust as provided in Section 9.03) money sufficient to pay the Repurchase Price in ---- respect of such Security, then such Security shall cease to be Outstanding for the purposes of this Indenture on the Repurchase Date and all rights of the Holder thereof other than the right to receive the Repurchase Price shall terminate.
(e) If any Security (or portion thereof) surrendered for repurchase shall not have been repurchased on the Business Day following the Repurchase Date, the Repurchase Price in respect of such Security shall, until paid, bear interest from the Business Day following the Repurchase Date at the rate borne by the Security and such Security shall remain convertible into Common Stock until the Repurchase Price and any such accrued interest shall have been paid or duly provided for.
(f) Any Security that is to be repurchased only in part shall be surrendered to the Trustee or any such Paying Agent (or if the Company is acting as its own Paying Agent, the Company) and the Company shall execute, and the Trustee shall authenticate and deliver to the Holder of such Security without service charge, a new Security or Securities, containing identical terms and conditions, each in an authorized denomination in aggregate principal amount equal to and in exchange for the portion of the principal of the Security so surrendered that was not repurchased.
(g) Any Holder that has delivered a Change in Control Purchase Notice shall have the right to withdraw such notice by delivery of a written notice of withdrawal to the Trustee or any such Paying Agent prior to the close of business on the second Business Day prior to the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be, subject to extension to comply with applicable law. Owners of beneficial interests in Global Securities shall provide a Repurchase Notice or Fundamental Change Repurchase Notice in accordance with the Applicable Procedures of the Depositary.immediately preceding the
Appears in 1 contract
Samples: Indenture (Interliant Inc)
Notices; Method of Exercising Repurchase Right, Etc. (a) Unless the Company shall have theretofore called for redemption all of the outstanding Outstanding Securities, prior to or on the 30th day after the occurrence of a Change in Control, the Company, or, at the written request and expense of the Company prior to or on the 30th day after such occurrence, the Trustee shall give to the Trustee, the Paying Agent and all Holders of SecuritiesSecurities notice, in the manner provided in this Section 3.414.2 hereof, of the occurrence of the Change of Control and of the Repurchase Right set forth herein arising as a notice containing the information required pursuant to the following provisions of this Section 3.4(a) result thereof (the "Company Notice") (i) on or before the 20th Business Day prior to the Repurchase Date or, in the event of a Fundamental Change arising from a Change of Control, the anticipated Effective Date (but in no event earlier than 45 days prior to the Repurchase Date or anticipated Effective Date, as the case may be), and (ii) within 15 Business Days after the Company knows or reasonably should know of the occurrence of a Fundamental Change that arises as a result of any Termination of Trading. Prior to or concurrently with the delivery of any Company Notice, the Company will issue a press release or publish such information on the Company's then existing website including the information required to be included in such Company Notice hereunder. The Company shall also deliver a copy of any Company Notice such notice of a Repurchase Right to the Trustee. At the request and expense Each notice of the Company on or before the fifth Business Day prior to the date on which the Company Notice is to be mailed, the Trustee shall provide the Company Notice to the Holders in accordance with the provisions of this Indenture. Each Company Notice a Repurchase Right shall state:
(i1) the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be,;
(ii2) the date by which the repurchase right Repurchase Right must be exercised,;
(iii3) the Repurchase Price or the Fundamental Change Repurchase Priceand accrued and unpaid interest, as the case may beif any, and whether the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, shall be paid by the Company in cash or by delivery of shares of Common Stock, or a specified combination thereof and the percentage of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, that will be paid in shares of Common Stock (which indication shall be irrevocable, subject to the satisfaction (or waiver) of the conditions set forth in Section 3.3),;
(iv) if the notice relates to the occurrence of a Fundamental Change, the events causing the Fundamental Change and the date of the Fundamental Change,
(v) that Securities with respect to which a Holder gives a Repurchase Notice or Fundamental Change Repurchase Notice may be converted only if the Holder withdraws the Repurchase Notice or Fundamental Change Repurchase Notice as to such Securities in accordance with the terms of this Indenture,
(vi4) a description of the procedure that which a Holder must follow to exercise a repurchase rightRepurchase Right, and the place or places where such Securities Securities, are to be surrendered for payment of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, and accrued but and unpaid interest (and Liquidated Damages)interest, if any, to, but excluding, the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be,;
(vii5) that on the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be, the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, and accrued but and unpaid interest (and Liquidated Damages)interest, if any, to, but excluding, the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be, will become due and payable upon each such Security designated by the Holder to be repurchased, and that interest thereon shall cease to accrue on and after said date,;
(viii6) the Conversion Price Rate then in effect,, the date on which the right to convert the principal amount of the Securities to be repurchased will terminate and the place where such Securities may be surrendered for conversion, and
(ix7) the place or places that where such Securities, together with the Security Option to Elect Repayment Upon a Change of Control certificate (including the Election included in Exhibit A annexed hereto are to be delivered for payment of Holder to Require Repurchase attached thereto) and the Repurchase Notice (as defined below) shall be delivered, andPrice and accrued and unpaid interest, if the Security is a Restricted Security, the place or places that the Transfer Certificate in the form set forth in Exhibit C, required by Section 2.12 shall be delivered,
(x) the name and address of the Paying Agent and Conversion Agent, and
(xi) if the notice relates to a Fundamental Change, the estimated amount of any Make-Whole Premium and the respective percentages of such Make-Whole Premium that will be paid (as contemplated by Section 6.1(b)) in shares of Common Stock and in cash (which indication shall be irrevocable), subject to the satisfaction (or waiver) of the conditions set forth in Section 6.1(c), in the event that a Holder should, in lieu of electing to have Securities repurchased on the Fundamental Change Repurchase Date, elect to convert such Securities during the Fundamental Change Conversion Period, and
(xii) any other information to be included therein pursuant to Section 6.1any. No failure of the Company to give the foregoing notices or defect therein shall limit any Holder's right to exercise a repurchase right Repurchase Right or affect the validity of the proceedings for the repurchase of Securities. If any of the foregoing provisions or other provisions of this Article III 11 are inconsistent with applicable law, such law shall govern.
(b) To exercise a repurchase right pursuant to Section 3.1 or Section 3.2Repurchase Right, a Holder shall deliver to the Paying Agent Trustee prior to or on the 30th day after the date of the Company Notice:
(i1) written notice (in the case of a repurchase pursuant to Section 3.1, a "Repurchase Notice" and, in the case of a repurchase pursuant to Section 3.2, a "Fundamental Change Repurchase Notice") of the Holder's exercise of such right, which notice shall set forth the name of the Holder, the principal amount of the Securities to be repurchased (and, if any Security is to be repurchased in part, the serial number thereof, the portion of the principal amount thereof to be repurchased (which portion must be in principal amounts of $1,000 or a whole multiple of $1,000repurchased) and the name of the Person in which the portion thereof to remain outstanding after such repurchase is to be registered), if certificated, the certificate numbers of the Securities to be repurchased, and a statement that an election to exercise the repurchase right pursuant to the terms and conditions specified in the Securities and the Indenture Repurchase Right is being made thereby, and, in the event that any portion of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, shall be paid in shares of Common Stock, the name or names (with addresses) in which the certificate or certificates for shares of Common Stock shall be issued, and and
(ii2) the Securities with respect to which the Repurchase Notice or Fundamental Change Repurchase Notice relates at any time after delivery Right is being exercised. Such written notice shall be irrevocable, except that the right of the Repurchase Notice or Holder to convert the Fundamental Change Repurchase Notice, as the case may be (together Securities with all necessary endorsements), at the offices of the Paying Agent, such delivery being a condition respect to receipt by the Holder of which the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, thereof; provided, however, that such Repurchase Price or Fundamental Change Repurchase Price, as the case may be, Right is being exercised shall be so paid pursuant to this Section 3.4(b) only if the Securities so delivered to the Paying Agent shall conform in all respects to the description thereof in the related Repurchase Notice or Fundamental Change Repurchase Notice. In the case of a repurchase right pursuant to Section 3.1 and Section 3.2, such delivery shall be at any time from the opening of business on the date that is 20 Business Days prior to the Repurchase Date continue until the close of business on the second Business Day prior immediately preceding the Repurchase Date.
(c) In the event a Repurchase Right shall be exercised in accordance with the terms hereof, the Company shall pay or cause to be paid to the Trustee the Repurchase Price in cash for payment to the Holder on the Repurchase Date or, if shares of Common Stock are to be paid, shares of Common Stock, as provided above, as promptly after the Repurchase Date as practicable, together with accrued and unpaid interest to the Repurchase Date payable in cash with respect to the Securities as to which the Repurchase Right has been exercised; provided, however, that installments of interest that mature prior to or on the Fundamental Change Repurchase Date shall be payable in cash to the Holders of such Securities, or one or more Predecessor Securities, registered as such at the close of business on the relevant Regular Record Date.
(d) If any Security (or portion thereof) surrendered for repurchase shall not be so paid on the Repurchase Date, the principal amount of such Security (or portion thereof, as the case may be) shall, subject until paid, bear interest to extension the extent permitted by applicable law from the Repurchase Date at the Interest Rate, and each Security shall remain convertible into Common Stock until the principal of such Security (or portion thereof, as the case may be) shall have been paid or duly provided for.
(e) Any Security which is to comply with applicable lawbe repurchased only in part shall be surrendered to the Trustee (with, if the Company or the Trustee so requires, due endorsement by, or a written instrument of transfer in form satisfactory to the Company and the Trustee duly executed by the Holder thereof or his attorney duly authorized in writing), and the Company shall execute, and the Trustee shall authenticate and make available for delivery to the Holder of such Security without service charge, a new Security or Securities, containing identical terms and conditions, each in an authorized denomination in aggregate principal amount equal to and in exchange for the unrepurchased portion of the principal of the Security so surrendered.
(f) Any issuance of shares of Common Stock in respect of the Repurchase Price shall be deemed to have been effected immediately prior to the close of business on the Repurchase Date and the Person or Persons in whose name or names any certificate or certificates for shares of Common Stock shall be issuable upon such repurchase shall be deemed to have become on the Repurchase Date the holder or holders of record of the shares represented thereby; provided, however, that any surrender for repurchase on a date when the stock transfer books of the Company shall be closed shall constitute the Person or Persons in whose name or names the certificate or certificates for such shares are to be issued as the record holder or holders thereof for all purposes at the opening of business on the next succeeding day on which such stock transfer books are open. Owners No payment or adjustment shall be made for dividends or distributions on any Common Stock issued upon repurchase of beneficial interests any Security declared prior to the Repurchase Date.
(g) No fractions of shares of Common Stock shall be issued upon repurchase of any Security or Securities. If more than one Security shall be repurchased from the same Holder and the Repurchase Price shall be payable in Global shares of Common Stock, the number of full shares which shall be issued upon such repurchase shall be computed on the basis of the aggregate principal amount of the Securities (or specified portions thereof) to be so repurchased. Instead of any fractional share of Common Stock which would otherwise be issued on the repurchase of any Security or Securities (or specified portions thereof), the Company shall pay a cash adjustment in respect of such fraction (calculated to the nearest one-100th of a share) in an amount equal to the same fraction of the Quoted Price of the Common Stock as of the Trading Day preceding the Repurchase Date.
(h) Any issuance and delivery of certificates for shares of Common Stock on repurchase of Securities shall provide a Repurchase Notice be made without charge to the Holder of Securities being repurchased for such certificates or Fundamental Change Repurchase Notice for any tax or duty in accordance with the Applicable Procedures respect of the Depositaryissuance or delivery of such certificates or the Securities represented thereby; provided, however, that the Company shall not be required to pay any tax or duty which may be payable in respect of (i) income of the Holder or (ii) any transfer involved in the issuance or delivery of certificates for shares of Common Stock in a name other than that of the Holder of the Securities being repurchased, and no such issuance or delivery shall be made unless the Persons requesting such issuance or delivery has paid to the Company the amount of any such tax or duty or has established, to the satisfaction of the Company, that such tax or duty has been paid.
(i) All Securities delivered for repurchase shall be delivered to the Trustee to be canceled at the direction of the Trustee, which shall dispose of the same as provided in Section 2.15 hereof.
Appears in 1 contract
Samples: Indenture (Cv Therapeutics Inc)
Notices; Method of Exercising Repurchase Right, Etc. (a) Unless the Company shall have theretofore called for redemption all of the outstanding Outstanding Securities, the Company shall give to the Trustee, the Paying Agent and all Holders of Securities, in the manner provided in this Section 3.4, a notice containing the information required pursuant to the following provisions of this Section 3.4(a) (the "Company Notice") (i) on or before the 20th Business Day prior to the Repurchase Date or, in the event of a Fundamental Change arising from a Change of Control, the anticipated Effective Date (but in no event earlier than 45 days prior to the Repurchase Date or anticipated Effective Date, as the case may be), and (ii) within 15 Business Days 30th day after the Company knows or reasonably should know of the occurrence of a Fundamental Change that arises as a result of any Termination of Trading. Prior to or concurrently with the delivery of any Company Noticein Control, the Company will issue a press release or publish such information on the Company's then existing website including the information required to be included in such Company Notice hereunder. The Company shall also deliver a copy of any Company Notice to the Trustee. At or, at the request and expense of the Company on or before the fifth Business Day prior 15th day after such occurrence, the Trustee, shall give to all Holders of Securities, in the manner provided in Section 1.6, notice (the "Company Notice") of the occurrence of the Change in Control and of the repurchase right set forth herein arising as a result thereof. The Company shall also deliver a copy of such notice of a repurchase right to the date on which the Company Notice is to be mailed, the Trustee shall provide the Company Notice to the Holders in accordance with the provisions of this IndentureTrustee. Each Company Notice notice of a repurchase right shall state:
(i1) the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be,
(ii2) the date by which the repurchase right must be exercised,, 100
(iii3) the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, and whether the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, shall be paid by the Company in cash or by delivery of shares of Common Stock, or a specified combination thereof and the percentage of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, that will be paid in shares of Common Stock (which indication shall be irrevocable, subject to the satisfaction (or waiver) of the conditions set forth in Section 3.3),
(iv) if the notice relates to the occurrence of a Fundamental Change, the events causing the Fundamental Change and the date of the Fundamental Change,
(v) that Securities with respect to which a Holder gives a Repurchase Notice or Fundamental Change Repurchase Notice may be converted only if the Holder withdraws the Repurchase Notice or Fundamental Change Repurchase Notice as to such Securities in accordance with the terms of this Indenture,
(vi4) a description of the procedure that which a Holder must follow to exercise a repurchase right, and the place or places where such Securities are to be surrendered for payment of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, and accrued but unpaid interest (and Liquidated Damages)interest, if any, to, but excluding, the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be,
(vii5) that on the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be, the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, and accrued but unpaid interest (and Liquidated Damages)interest, if any, to, but excluding, the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be, will become due and payable upon each such Security designated by the Holder to be repurchased, and that interest thereon shall cease to accrue on and after said date,
(viii6) the Conversion Price Rate then in effect,, the date on which the right to convert the principal amount of the Securities to be repurchased will terminate and the place or places where such Securities may be surrendered for conversion, and
(ix7) the place or places that the Security certificate (including the Election of Holder to Require Repurchase attached thereto) and the Repurchase Notice (as defined below) set forth in Section 2.3 shall be delivered, and, if the Security is a Restricted Security, the place or places that the Transfer Certificate in and the form set forth in Exhibit C, required by Section 2.12 shall be delivered,
(x) the name and address of the Paying Agent and Conversion Agent, and
(xi) if the notice relates to a Fundamental Change, the estimated amount of any Make-Whole Premium and the respective percentages of such Make-Whole Premium that will be paid (as contemplated by Section 6.1(b)) in shares of Common Stock and in cash (which indication shall be irrevocable), subject to the satisfaction (or waiver) of the conditions set forth in Section 6.1(c), in the event that a Holder should, in lieu of electing to have Securities repurchased on the Fundamental Change Repurchase Date, elect to convert such Securities during the Fundamental Change Conversion Period, and
(xii) any other information to be included therein pursuant to Section 6.1certificate. No failure of the Company to give the foregoing notices or defect therein shall limit any Holder's right to exercise a repurchase right or affect the validity of the proceedings for the repurchase of Securities. If any of the foregoing provisions or other provisions of this Article III are inconsistent with applicable law, such law shall govern.
(b) To exercise a repurchase right pursuant to Section 3.1 or Section 3.2right, a Holder shall deliver to the Trustee or any Paying Agent on or before the 30th day after the date of the Company Notice (i) written notice (in the case of a repurchase pursuant to form set forth in Section 3.1, a "Repurchase Notice" and, in the case of a repurchase pursuant to Section 3.2, a "Fundamental Change Repurchase Notice") 2.3 of the Holder's exercise of such right, which notice shall set forth the name of the Holder, the principal amount of the Securities to be repurchased (and, if any Security is to repurchased in part, the serial number thereof, the portion of the principal amount thereof to be repurchased (which portion must be in principal amounts of $1,000 or a whole multiple of $1,000) and the name of the Person in which the portion thereof to remain outstanding Outstanding after such repurchase is to be registered), if certificated, the certificate numbers of the Securities to be repurchased, ) and a statement that an election to exercise the repurchase right pursuant to the terms and conditions specified in the Securities and the Indenture is being made thereby, and, in the event that any portion of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, shall be paid in shares of Common Stock, the name or names (with addresses) in which the certificate or certificates for shares of Common Stock shall be issued, and (ii) the Securities with respect to which the Repurchase Notice or Fundamental Change Repurchase Notice relates at any time after delivery repurchase right is being exercised. Such written notice shall be irrevocable, except that the right of the Repurchase Notice or the Fundamental Change Repurchase Notice, as the case may be (together with all necessary endorsements), at the offices of the Paying Agent, such delivery being a condition Holder to receipt by the Holder of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, thereof; provided, however, that such Repurchase Price or Fundamental Change Repurchase Price, as the case may be, shall be so paid pursuant to this Section 3.4(b) only if convert the Securities so delivered with respect to which the Paying Agent shall conform in all respects to the description thereof in the related Repurchase Notice or Fundamental Change Repurchase Notice. In the case of a repurchase right pursuant to Section 3.1 and Section 3.2, such delivery is being exercised shall be at any time from the opening of business on the date that is 20 Business Days prior to the Repurchase Date continue until the close of business on the second Business Day prior to the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be, subject to extension to comply with applicable law. Owners of beneficial interests in Global Securities shall provide a Repurchase Notice or Fundamental Change Repurchase Notice in accordance with the Applicable Procedures of the Depositary.
Appears in 1 contract
Samples: Indenture (Genesco Inc)
Notices; Method of Exercising Repurchase Right, Etc. (a) Unless the Company shall have theretofore called for redemption all of the outstanding SecuritiesOutstanding Securities or unless all of the Outstanding Securities shall have theretofore been converted in accordance with Article Thirteen, the Company shall give to the Trustee, the Paying Agent and all Holders of Securities, in the manner provided in this Section 3.4, a notice containing the information required pursuant to the following provisions of this Section 3.4(a) (the "Company Notice") (i) on or before the 20th Business Day prior to 30th day after the Repurchase Date or, in the event occurrence of a Fundamental Change arising from a Change of Control, the anticipated Effective Date (but in no event earlier than 45 days prior to the Repurchase Date or anticipated Effective DateCompany or, as the case may be), and (ii) within 15 Business Days after the Company knows or reasonably should know of the occurrence of a Fundamental Change that arises as a result of any Termination of Trading. Prior to or concurrently with the delivery of any Company Notice, the Company will issue a press release or publish such information on the Company's then existing website including the information required to be included in such Company Notice hereunder. The Company shall also deliver a copy of any Company Notice to the Trustee. At at the request and expense of the Company on or before the fifth Business Day prior 15th day after such occurrence, the Trustee, shall give to all Holders, in the manner provided in Section 106, notice (the "Company Notice") of the occurrence of the Change of Control and of the repurchase right set forth herein arising as a result thereof. The Company shall also deliver a copy of such notice of a repurchase right to the date on which the Company Notice is to be mailed, the Trustee shall provide the Company Notice to the Holders in accordance with the provisions of this IndentureTrustee. Each Company Notice notice of a repurchase right shall state:
(i1) the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be,
(ii2) the date by which the repurchase right must be exercised,
(iii3) the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, and whether the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, shall be paid by the Company in cash or by delivery of shares of Common Stock, or a specified combination thereof and the percentage of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, that will be paid in shares of Common Stock (which indication shall be irrevocable, subject to the satisfaction (or waiver) of the conditions set forth in Section 3.3),
(iv) if the notice relates to the occurrence of a Fundamental Change, the events causing the Fundamental Change and the date of the Fundamental Change,
(v) that Securities with respect to which a Holder gives a Repurchase Notice or Fundamental Change Repurchase Notice may be converted only if the Holder withdraws the Repurchase Notice or Fundamental Change Repurchase Notice as to such Securities in accordance with the terms of this Indenture,
(vi4) a description of the procedure that which a Holder must follow to exercise a repurchase right, and the place or places where such Securities are to be surrendered for payment of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, and accrued but unpaid interest (and Liquidated Damages)interest, if any, to, but excluding, the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be,
(vii5) that on the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be, the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, and including accrued but unpaid interest (and Liquidated Damages)interest, if any, to, but excluding, the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be, will become due and payable upon each such Security designated by the Holder to be repurchased, and that interest thereon shall cease to accrue on and after said date,
(viii6) the Conversion Price Rate then in effect,
(ix) the place or places that the Security certificate (including the Election of Holder to Require Repurchase attached thereto) and the Repurchase Notice (as defined below) shall be delivered, and, if the Security is a Restricted Security, the place or places that date on which the Transfer Certificate in the form set forth in Exhibit C, required by Section 2.12 shall be delivered,
(x) the name and address of the Paying Agent and Conversion Agent, and
(xi) if the notice relates to a Fundamental Change, the estimated amount of any Make-Whole Premium and the respective percentages of such Make-Whole Premium that will be paid (as contemplated by Section 6.1(b)) in shares of Common Stock and in cash (which indication shall be irrevocable), subject to the satisfaction (or waiver) of the conditions set forth in Section 6.1(c), in the event that a Holder should, in lieu of electing to have Securities repurchased on the Fundamental Change Repurchase Date, elect right to convert such Securities during the Fundamental Change Conversion Period, and
(xii) any other information to be included therein pursuant to Section 6.1. No failure of the Company to give the foregoing notices or defect therein shall limit any Holder's right to exercise a repurchase right or affect the validity of the proceedings for the repurchase of Securities. If any of the foregoing provisions or other provisions of this Article III are inconsistent with applicable law, such law shall govern.
(b) To exercise a repurchase right pursuant to Section 3.1 or Section 3.2, a Holder shall deliver to the Paying Agent (i) written notice (in the case of a repurchase pursuant to Section 3.1, a "Repurchase Notice" and, in the case of a repurchase pursuant to Section 3.2, a "Fundamental Change Repurchase Notice") of the Holder's exercise of such right, which notice shall set forth the name of the Holder, the principal amount of the Securities to be repurchased (and, if any Security is to repurchased in part, the portion of the principal amount thereof to be repurchased (which portion must be in principal amounts of $1,000 or a whole multiple of $1,000) will terminate and the name place or places where such Securities may be surrendered for conversion, and
(7) the place or places that the form of the Person in which the portion thereof to remain outstanding after such repurchase is to certificate required by Section 203 shall be registered), if certificated, the certificate numbers of the Securities to be repurchaseddelivered, and a statement that an election to exercise the repurchase right pursuant to the terms and conditions specified in the Securities and the Indenture is being made thereby, and, in the event that any portion form of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, shall be paid in shares of Common Stock, the name or names (with addresses) in which the certificate or certificates for shares of Common Stock shall be issued, and (ii) the Securities to which the Repurchase Notice or Fundamental Change Repurchase Notice relates at any time after delivery of the Repurchase Notice or the Fundamental Change Repurchase Notice, as the case may be (together with all necessary endorsements), at the offices of the Paying Agent, such delivery being a condition to receipt by the Holder of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, thereof; provided, however, that such Repurchase Price or Fundamental Change Repurchase Price, as the case may be, shall be so paid pursuant to this Section 3.4(b) only if the Securities so delivered to the Paying Agent shall conform in all respects to the description thereof in the related Repurchase Notice or Fundamental Change Repurchase Notice. In the case of a repurchase right pursuant to Section 3.1 and Section 3.2, such delivery shall be at any time from the opening of business on the date that is 20 Business Days prior to the Repurchase Date until the close of business on the second Business Day prior to the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be, subject to extension to comply with applicable law. Owners of beneficial interests in Global Securities shall provide a Repurchase Notice or Fundamental Change Repurchase Notice in accordance with the Applicable Procedures of the Depositarycertificate.
Appears in 1 contract
Samples: Indenture (Southern Mineral Corp)
Notices; Method of Exercising Repurchase Right, Etc. (a) Unless the Company shall have theretofore called for redemption all of the outstanding Outstanding Securities, the Company shall give to the Trustee, the Paying Agent and all Holders of Securities, in the manner provided in this Section 3.4, a notice containing the information required pursuant to the following provisions of this Section 3.4(a) (the "Company Notice") (i) on or before the 20th Business Day prior to 30th day after the Repurchase Date or, in the event occurrence of a Fundamental Change arising from a Change of Control, the anticipated Effective Date (but in no event earlier than 45 days prior to the Repurchase Date or anticipated Effective DateCompany or, as the case may be), and (ii) within 15 Business Days after the Company knows or reasonably should know of the occurrence of a Fundamental Change that arises as a result of any Termination of Trading. Prior to or concurrently with the delivery of any Company Notice, the Company will issue a press release or publish such information on the Company's then existing website including the information required to be included in such Company Notice hereunder. The Company shall also deliver a copy of any Company Notice to the Trustee. At at the request and expense of the Company on or before the fifth Business Day prior 15th day after such occurrence, the Trustee, shall give to all Holders of Securities, in the manner provided in Section 1.6, notice (the "Company Notice") of the occurrence of the Change of Control and of the repurchase right set forth herein arising as a result thereof. The Company shall also deliver a copy of such notice of a repurchase right to the date on which the Company Notice is to be mailed, the Trustee shall provide the Company Notice to the Holders in accordance with the provisions of this IndentureTrustee. Each Company Notice notice of a repurchase right shall state:
(i1) the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be,
(ii2) the date by which the repurchase right must be exercised,
(iii3) the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, and whether the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, shall be paid by the Company in cash or by delivery of shares of Common Stock, or a specified combination thereof and the percentage of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, that will be paid in shares of Common Stock (which indication shall be irrevocable, subject to the satisfaction (or waiver) of the conditions set forth in Section 3.3),
(iv) if the notice relates to the occurrence of a Fundamental Change, the events causing the Fundamental Change and the date of the Fundamental Change,
(v) that Securities with respect to which a Holder gives a Repurchase Notice or Fundamental Change Repurchase Notice may be converted only if the Holder withdraws the Repurchase Notice or Fundamental Change Repurchase Notice as to such Securities in accordance with the terms of this Indenture,
(vi4) a description of the procedure that which a Holder must follow to exercise a repurchase right, and the place or places where such Securities are to be surrendered for payment of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, and accrued but unpaid interest (and Liquidated Damages)interest, if any, to, but excluding, the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be,
(vii5) that on the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be, the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, and accrued but unpaid interest (and Liquidated Damages)interest, if any, to, but excluding, the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be, will become due and payable upon each such Security designated by the Holder to be repurchased, and that interest thereon shall cease to accrue on and after said date,
, 100 108 (viii6) the Conversion Price Rate then in effect,
(ix) the place or places that the Security certificate (including the Election of Holder to Require Repurchase attached thereto) and the Repurchase Notice (as defined below) shall be delivered, and, if the Security is a Restricted Security, the place or places that date on which the Transfer Certificate in the form set forth in Exhibit C, required by Section 2.12 shall be delivered,
(x) the name and address of the Paying Agent and Conversion Agent, and
(xi) if the notice relates to a Fundamental Change, the estimated amount of any Make-Whole Premium and the respective percentages of such Make-Whole Premium that will be paid (as contemplated by Section 6.1(b)) in shares of Common Stock and in cash (which indication shall be irrevocable), subject to the satisfaction (or waiver) of the conditions set forth in Section 6.1(c), in the event that a Holder should, in lieu of electing to have Securities repurchased on the Fundamental Change Repurchase Date, elect right to convert such Securities during the Fundamental Change Conversion Period, and
(xii) any other information to be included therein pursuant to Section 6.1. No failure of the Company to give the foregoing notices or defect therein shall limit any Holder's right to exercise a repurchase right or affect the validity of the proceedings for the repurchase of Securities. If any of the foregoing provisions or other provisions of this Article III are inconsistent with applicable law, such law shall govern.
(b) To exercise a repurchase right pursuant to Section 3.1 or Section 3.2, a Holder shall deliver to the Paying Agent (i) written notice (in the case of a repurchase pursuant to Section 3.1, a "Repurchase Notice" and, in the case of a repurchase pursuant to Section 3.2, a "Fundamental Change Repurchase Notice") of the Holder's exercise of such right, which notice shall set forth the name of the Holder, the principal amount of the Securities to be repurchased (and, if any Security is to repurchased in part, the portion of the principal amount thereof to be repurchased (which portion must be in principal amounts of $1,000 or a whole multiple of $1,000) will terminate and the name of the Person in which the portion thereof to remain outstanding after place or places where such repurchase is to Securities may be registered), if certificated, the certificate numbers of the Securities to be repurchased, and a statement that an election to exercise the repurchase right pursuant to the terms and conditions specified in the Securities and the Indenture is being made therebysurrendered for conversion, and, in the event that any portion of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, shall be paid in shares of Common Stock, the name or names (with addresses) in which the certificate or certificates for shares of Common Stock shall be issued, and (ii) the Securities to which the Repurchase Notice or Fundamental Change Repurchase Notice relates at any time after delivery of the Repurchase Notice or the Fundamental Change Repurchase Notice, as the case may be (together with all necessary endorsements), at the offices of the Paying Agent, such delivery being a condition to receipt by the Holder of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, thereof; provided, however, that such Repurchase Price or Fundamental Change Repurchase Price, as the case may be, shall be so paid pursuant to this Section 3.4(b) only if the Securities so delivered to the Paying Agent shall conform in all respects to the description thereof in the related Repurchase Notice or Fundamental Change Repurchase Notice. In the case of a repurchase right pursuant to Section 3.1 and Section 3.2, such delivery shall be at any time from the opening of business on the date that is 20 Business Days prior to the Repurchase Date until the close of business on the second Business Day prior to the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be, subject to extension to comply with applicable law. Owners of beneficial interests in Global Securities shall provide a Repurchase Notice or Fundamental Change Repurchase Notice in accordance with the Applicable Procedures of the Depositary.
Appears in 1 contract
Notices; Method of Exercising Repurchase Right, Etc. (a) Unless the Company shall have theretofore called for redemption all of the outstanding Outstanding Securities, prior to or on the 30th day after the occurrence of a Change in Control, the Company, or, at the written request and expense of the Company prior to or on the 30th day after such occurrence, the Trustee, shall give to the Trustee, the Paying Agent and all Holders of SecuritiesSecurities notice, in the manner provided in this Section 3.414.2 hereof, of the occurrence of the Change of Control and of the Repurchase Right set forth herein arising as a notice containing the information required pursuant to the following provisions of this Section 3.4(a) result thereof (the "Company Notice") (i) on or before the 20th Business Day prior to the Repurchase Date or, in the event of a Fundamental Change arising from a Change of Control, the anticipated Effective Date (but in no event earlier than 45 days prior to the Repurchase Date or anticipated Effective Date, as the case may be), and (ii) within 15 Business Days after the Company knows or reasonably should know of the occurrence of a Fundamental Change that arises as a result of any Termination of Trading. Prior to or concurrently with the delivery of any Company Notice, the Company will issue a press release or publish such information on the Company's then existing website including the information required to be included in such Company Notice hereunder. The Company shall also deliver a copy of any Company Notice such notice of a Repurchase Right to the Trustee. At the request and expense Each notice of the Company on or before the fifth Business Day prior to the date on which the Company Notice is to be mailed, the Trustee shall provide the Company Notice to the Holders in accordance with the provisions of this Indenture. Each Company Notice a Repurchase Right shall state:
(i1) the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be,;
(ii2) the date by which the repurchase right Repurchase Right must be exercised,;
(iii3) the Repurchase Price or the Fundamental Change Repurchase Priceand accrued and unpaid interest, as the case may beif any, and whether the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, shall be paid by the Company in cash or by delivery of shares of Common Stock, or a specified combination thereof and the percentage of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, that will be paid in shares of Common Stock (which indication shall be irrevocable, subject to the satisfaction (or waiver) of the conditions set forth in Section 3.3),;
(iv) if the notice relates to the occurrence of a Fundamental Change, the events causing the Fundamental Change and the date of the Fundamental Change,
(v) that Securities with respect to which a Holder gives a Repurchase Notice or Fundamental Change Repurchase Notice may be converted only if the Holder withdraws the Repurchase Notice or Fundamental Change Repurchase Notice as to such Securities in accordance with the terms of this Indenture,
(vi4) a description of the procedure that which a Holder must follow to exercise a repurchase rightRepurchase Right, and the place or places where such Securities Securities, are to be surrendered for payment of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, and accrued but and unpaid interest (and Liquidated Damages)interest, if any, to, but excluding, the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be,;
(vii5) that on the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be, the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, and accrued but and unpaid interest (and Liquidated Damages)interest, if any, to, but excluding, the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be, will become due and payable upon each such Security designated by the Holder to be repurchased, and that interest thereon shall cease to accrue on and after said date,;
(viii6) the Conversion Price Rate then in effect,, the date on which the right to convert the principal amount of the Securities to be repurchased will terminate and the place where such Securities may be surrendered for conversion, and
(ix7) the place or places that where such Securities, together with the Security Option to Elect Repayment Upon a Change of Control certificate (including the Election included in Exhibit A annexed hereto are to be delivered for payment of Holder to Require Repurchase attached thereto) and the Repurchase Notice (as defined below) shall be delivered, andPrice and accrued and unpaid interest, if the Security is a Restricted Security, the place or places that the Transfer Certificate in the form set forth in Exhibit C, required by Section 2.12 shall be delivered,
(x) the name and address of the Paying Agent and Conversion Agent, and
(xi) if the notice relates to a Fundamental Change, the estimated amount of any Make-Whole Premium and the respective percentages of such Make-Whole Premium that will be paid (as contemplated by Section 6.1(b)) in shares of Common Stock and in cash (which indication shall be irrevocable), subject to the satisfaction (or waiver) of the conditions set forth in Section 6.1(c), in the event that a Holder should, in lieu of electing to have Securities repurchased on the Fundamental Change Repurchase Date, elect to convert such Securities during the Fundamental Change Conversion Period, and
(xii) any other information to be included therein pursuant to Section 6.1any. No failure of the Company to give the foregoing notices or defect therein shall limit any Holder's right to exercise a repurchase right Repurchase Right or affect the validity of the proceedings for the repurchase of Securities. If any of the foregoing provisions or other provisions of this Article III 11 are inconsistent with applicable law, such law shall govern.
(b) To exercise a repurchase right pursuant to Section 3.1 or Section 3.2Repurchase Right, a Holder shall deliver to the Paying Agent Trustee prior to or on the 30th day after the date of the Company Notice:
(i1) written notice (in the case of a repurchase pursuant to Section 3.1, a "Repurchase Notice" and, in the case of a repurchase pursuant to Section 3.2, a "Fundamental Change Repurchase Notice") of the Holder's exercise of such right, which notice shall set forth the name of the Holder, the principal amount of the Securities to be repurchased (and, if any Security is to be repurchased in part, the serial number thereof, the portion of the principal amount thereof to be repurchased (which portion must be in principal amounts of $1,000 or a whole multiple of $1,000repurchased) and the name of the Person in which the portion thereof to remain outstanding after such repurchase is to be registered), if certificated, the certificate numbers of the Securities to be repurchased, and a statement that an election to exercise the repurchase right pursuant to the terms and conditions specified in the Securities and the Indenture Repurchase Right is being made thereby, and, in the event that any portion of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, shall be paid in shares of Common Stock, the name or names (with addresses) in which the certificate or certificates for shares of Common Stock shall be issued, and and
(ii2) the Securities with respect to which the Repurchase Notice or Fundamental Change Repurchase Notice relates at any time after delivery Right is being exercised. Such written notice shall be irrevocable, except that the right of the Repurchase Notice or Holder to convert the Fundamental Change Repurchase Notice, as the case may be (together Securities with all necessary endorsements), at the offices of the Paying Agent, such delivery being a condition respect to receipt by the Holder of which the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, thereof; provided, however, that such Repurchase Price or Fundamental Change Repurchase Price, as the case may be, Right is being exercised shall be so paid pursuant to this Section 3.4(b) only if the Securities so delivered to the Paying Agent shall conform in all respects to the description thereof in the related Repurchase Notice or Fundamental Change Repurchase Notice. In the case of a repurchase right pursuant to Section 3.1 and Section 3.2, such delivery shall be at any time from the opening of business on the date that is 20 Business Days prior to the Repurchase Date continue until the close of business on the second Business Day prior to immediately preceding the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be, subject to extension to comply with applicable law. Owners of beneficial interests in Global Securities shall provide a Repurchase Notice or Fundamental Change Repurchase Notice in accordance with the Applicable Procedures of the Depositary.
Appears in 1 contract
Notices; Method of Exercising Repurchase Right, Etc. (a1) Unless the Company shall have theretofore called for redemption all of the outstanding Outstanding Securities, on or before the 30th day after the occurrence of a Change in Control, the Company or, at the request and expense of the Company on or before the 15th day after such occurrence, the Trustee, shall give to the Trustee, the Paying Agent and all Holders of Securities, in the manner provided in this Section 3.41.6, a notice containing the information required pursuant to the following provisions of this Section 3.4(a) (the "Company Notice") (i) on or before the 20th Business Day prior to the Repurchase Date or, in the event of a Fundamental Change arising from a Change of Control, the anticipated Effective Date (but in no event earlier than 45 days prior to the Repurchase Date or anticipated Effective Date, as the case may be), and (ii) within 15 Business Days after the Company knows or reasonably should know of the occurrence of a Fundamental the Change that arises in Control and of the repurchase right set forth herein arising as a result of any Termination of Trading. Prior to or concurrently with the delivery of any Company Notice, thereof and the Company will shall issue a press release or publish such information on the Company's then existing website Press Release including the information required to be included in such Company Notice hereunder. The Company shall also deliver a copy of any such Company Notice to the Trustee. At the request and expense of the Company on or before the fifth Business Day prior to the date on which the Company Notice is to be mailed, the Trustee shall provide the Company Notice to the Holders in accordance with the provisions of this Indenture. Each Company Notice shall state:
(i) the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be,
(ii) the date by which the repurchase right must be exercised,
(iii) the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, and whether the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, shall be paid by the Company in cash or by delivery of shares of Common Stock, or a specified combination thereof and the percentage of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, that will be paid in shares of Common Stock (which indication shall be irrevocable, subject to the satisfaction (or waiver) of the conditions set forth in Section 3.3),
(iv) if the notice relates to the occurrence of a Fundamental Change, the events causing the Fundamental Change and the date of the Fundamental Change,
(v) that Securities with respect to which a Holder gives a Repurchase Notice or Fundamental Change Repurchase Notice may be converted only if the Holder withdraws the Repurchase Notice or Fundamental Change Repurchase Notice as to such Securities in accordance with the terms of this Indenture,
(vi) a description of the procedure that a Holder must follow to exercise a repurchase right, and the place or places where such Securities are to be surrendered for payment of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, and accrued but unpaid interest (and including Liquidated Damages, if any), if any, to, but excluding, any to the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be,
(viiv) that on the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be, the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, and accrued but unpaid interest (and including Liquidated Damages, if any), if any, to, but excluding, any to the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be, will become due and payable upon each such Security designated by the Holder to be repurchased, and that interest thereon shall cease to accrue on and after said date,
(viiivi) the Conversion Price Rate then in effect,, the date on which the right to convert the principal amount of the Securities to be repurchased will terminate and the place or places where such Securities may be surrendered for conversion, and
(ixvii) the place or places that the Security certificate (including with the Election of Holder to Require Repurchase attached thereto) and the Repurchase Notice (as defined below) specified in Section 2.2 shall be delivered, and, if the Security is a Restricted Security, the place or places that the Transfer Certificate in the form set forth in Exhibit C, required by Section 2.12 shall be delivered,
(x) the name and address of the Paying Agent and Conversion Agent, and
(xi) if the notice relates to a Fundamental Change, the estimated amount of any Make-Whole Premium and the respective percentages of such Make-Whole Premium that will be paid (as contemplated by Section 6.1(b)) in shares of Common Stock and in cash (which indication shall be irrevocable), subject to the satisfaction (or waiver) of the conditions set forth in Section 6.1(c), in the event that a Holder should, in lieu of electing to have Securities repurchased on the Fundamental Change Repurchase Date, elect to convert such Securities during the Fundamental Change Conversion Period, and
(xii) any other information to be included therein pursuant to Section 6.1. No failure of the Company to give the foregoing notices or defect therein shall limit any Holder's ' s right to exercise a repurchase right or affect the validity of the proceedings for the repurchase of Securities. If any of the foregoing provisions or other provisions of this Article III XIV are inconsistent with applicable law, such law shall govern.
(b2) To exercise a repurchase right pursuant to Section 3.1 or Section 3.2right, a Holder shall deliver to the Paying Agent Trustee on or before the close of business on the Business Day prior to the Repurchase Date (i) irrevocable written notice (in the case of a repurchase pursuant to Section 3.1, a "Repurchase Notice" and, in the case of a repurchase pursuant to Section 3.2, a "Fundamental Change Repurchase Notice") of the Holder's exercise of such right, which notice shall set forth the name of the Holder, the principal amount of the Securities to be repurchased (and, if any Security is to repurchased in part, the serial number thereof, the portion of the principal amount thereof to be repurchased (which portion must be in principal amounts of $1,000 or a whole multiple of $1,000) and the name of the Person in which the portion thereof to remain outstanding Outstanding after such repurchase is to be registered), if certificated, the certificate numbers of the Securities to be repurchased, ) and a statement that an election to exercise the repurchase right pursuant to the terms and conditions specified in the Securities and the Indenture is being made thereby, and, in the event that any portion of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, shall be paid in shares of Common Stock, the name or names (with addresses) in which the certificate or certificates for shares of Common Stock shall be issued, and (ii) the Securities with respect to which the Repurchase Notice or Fundamental Change Repurchase Notice relates at any time after delivery repurchase right is being exercised. Such written notice shall be irrevocable, except that the right of the Repurchase Notice or the Fundamental Change Repurchase Notice, as the case may be (together with all necessary endorsements), at the offices of the Paying Agent, such delivery being a condition Holder to receipt by the Holder of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, thereof; provided, however, that such Repurchase Price or Fundamental Change Repurchase Price, as the case may be, shall be so paid pursuant to this Section 3.4(b) only if convert the Securities so delivered with respect to which the Paying Agent shall conform in all respects to the description thereof in the related Repurchase Notice or Fundamental Change Repurchase Notice. In the case of a repurchase right pursuant to Section 3.1 and Section 3.2, such delivery is being exercised shall be at any time from the opening of business on the date that is 20 Business Days prior to the Repurchase Date continue until the close of business on the second Business Day immediately preceding the Repurchase Date.
(3) In the event a repurchase right shall be exercised in accordance with the terms hereof, the Company shall pay or cause to be paid to the Trustee the Repurchase Price in cash, as provided above, for payment to the Holder on the Repurchase Date, together with accrued and unpaid interest to the Repurchase Date payable with respect to the Securities as to which the repurchase right has been exercised; provided, however, that installments of interest that mature on or prior to the Repurchase Date shall be payable in cash to the Holders of such Securities, or one or more Predecessor Securities, registered as such at the Fundamental Change close of business on the relevant Regular Record Date.
(4) If any Security (or portion thereof) surrendered for repurchase shall not be so paid on the Repurchase Date, the principal amount of such Security (or portion thereof, as the case may be) shall, subject until paid, bear interest to extension the extent permitted by applicable law from the Repurchase Date at the rate of 4.5% per annum, and each Security shall remain convertible into Common Stock until the principal of such Security (or portion thereof, as the case may be) shall have been paid or duly provided for.
(5) Any Security that is to comply with applicable law. Owners be repurchased only in part shall be surrendered to the Trustee (with, if the Company or the Trustee so requires, due endorsement by, or a written instrument of beneficial interests transfer in Global Securities form satisfactory to the Company and the Trustee duly executed by, the Holder thereof or his attorney duly authorized in writing), and the Company shall provide execute, and the Trustee shall authenticate and make available for delivery to the Holder of such Security without service charge, a Repurchase Notice new Security or Fundamental Change Repurchase Notice Securities, containing identical terms and conditions, each in accordance with an authorized denomination in aggregate principal amount equal to and in exchange for the Applicable Procedures unrepurchased portion of the Depositaryprincipal of the Security so surrendered.
(6) All Securities delivered for repurchase shall be delivered to the Trustee to be canceled at the direction of the Trustee, which shall dispose of the same as provided in Section 3.9.
Appears in 1 contract
Samples: Indenture (Corixa Corp)
Notices; Method of Exercising Repurchase Right, Etc. (a) [intentionally omitted]
(b) Unless the Company shall have theretofore called for redemption all of the outstanding SecuritiesNotes, on or before the fifteenth (15th) calendar day after the occurrence of a Repurchase Event, the Company shall give to or, at the written request of the Company, the Trustee, shall mail to all holders of record of the Paying Agent and all Holders of Securities, in the manner provided in this Section 3.4, Notes a notice containing the information required pursuant to the following provisions of this Section 3.4(a) (the "Company Notice") (i) on or before the 20th Business Day prior to the Repurchase Date or, in the event of a Fundamental Change arising from a Change of Control, the anticipated Effective Date (but in no event earlier than 45 days prior to the Repurchase Date or anticipated Effective Date, form as the case may be), and (ii) within 15 Business Days after prepared by the Company knows or reasonably should know of the occurrence of a Fundamental Change that arises the Repurchase Event and of the repurchase right set forth herein arising as a result of any Termination of Trading. Prior to or concurrently with the delivery of any Company Notice, the Company will issue a press release or publish such information on the Company's then existing website including the information required to be included in such Company Notice hereunderthereof. The Company shall also deliver a copy of any such Company Notice to the Trustee. At the request Trustee and expense cause a copy of such Company Notice, or a summary of the Company on or before the fifth Business Day prior to the date on which the Company Notice is information contained therein, to be mailed, the Trustee shall provide the Company Notice to the Holders published once in accordance with the provisions a newspaper of this Indenturegeneral circulation in The City of New York. Each The Company Notice shall statecontain the following information:
(i1) the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be,repurchase date;
(ii2) the date by which the repurchase right must be exercised,;
(iii3) the last date by which the election to require repurchase, if submitted, must be revoked;
(4) the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, and whether the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, shall be paid by the Company payable in cash or by delivery of shares of Common Stock and, if payable in Common Stock, or a specified combination thereof and the percentage 76 82 method of calculating the amount of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, that will be paid in shares of Common Stock (which indication shall to be irrevocable, subject to delivered upon the satisfaction (or waiver) of the conditions set forth repurchase as provided in Section 3.316.3(a),;
(iv) if the notice relates to the occurrence of a Fundamental Change, the events causing the Fundamental Change and the date of the Fundamental Change,
(v) that Securities with respect to which a Holder gives a Repurchase Notice or Fundamental Change Repurchase Notice may be converted only if the Holder withdraws the Repurchase Notice or Fundamental Change Repurchase Notice as to such Securities in accordance with the terms of this Indenture,
(vi5) a description of the procedure that which a Holder holder must follow to exercise a repurchase right, and the place or places where such Securities are to be surrendered for payment of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, and accrued but unpaid interest (and Liquidated Damages), if any, to, but excluding, the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be,;
(vii) that on the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be, the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, and accrued but unpaid interest (and Liquidated Damages), if any, to, but excluding, the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be, will become due and payable upon each such Security designated by the Holder to be repurchased, and that interest thereon shall cease to accrue on and after said date,
(viii6) the Conversion Price then in effect,
(ix) , the date on which the right to convert the principal amount of the Notes to be repurchased will terminate and the place or places that the Security certificate (including the Election of Holder to Require Repurchase attached thereto) and the Repurchase Notice (as defined below) shall where Notes may be delivered, and, if the Security is a Restricted Security, the place or places that the Transfer Certificate in the form set forth in Exhibit C, required by Section 2.12 shall be delivered,
(x) the name and address of the Paying Agent and Conversion Agent, surrendered for conversion; and
(xi7) if the notice relates to a Fundamental Change, the estimated amount of any Make-Whole Premium and the respective percentages of such Make-Whole Premium that will be paid (as contemplated by Section 6.1(b)) in shares of Common Stock and in cash (which indication shall be irrevocable), subject to the satisfaction (or waiver) CUSIP numbers of the conditions set forth in Section 6.1(c), in the event that a Holder should, in lieu of electing to have Securities repurchased on the Fundamental Change Repurchase Date, elect to convert such Securities during the Fundamental Change Conversion Period, and
(xii) any other information to be included therein pursuant to Section 6.1Notes. No failure of the Company to give the foregoing notices or defect therein shall limit any Holderholder's right to exercise a repurchase right or affect the validity of the proceedings for the repurchase of SecuritiesNotes. If any of the foregoing provisions or other provisions of this Article III are inconsistent with applicable law, such law shall govern.
(bc) To exercise a repurchase right pursuant to Section 3.1 or Section 3.2right, a Holder holder shall deliver to the Paying Agent Trustee on or before the thirty-fifth (35th) day after the Company Notice was delivered (i) written notice to the Company (in or agent designated by the case of a repurchase pursuant to Section 3.1, a "Repurchase Notice" and, in the case of a repurchase pursuant to Section 3.2, a "Fundamental Change Repurchase Notice"Company for such purpose) of the Holderholder's exercise of such right, which notice shall set forth the name of the Holderholder, the principal amount of the Securities to be repurchased (and, if any Security is to repurchased in part, the portion of the principal amount thereof to be repurchased (which portion must be in principal amounts of $1,000 or a whole multiple of $1,000) and the name of the Person in which the portion thereof to remain outstanding after such repurchase is to be registered), if certificated, the certificate numbers of the Securities Notes to be repurchased, and a statement that an election to exercise the repurchase right pursuant to the terms and conditions specified in the Securities and the Indenture is being made thereby, and, in the event that any portion of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, shall be paid in shares of Common Stock, the name or names (with addresses) in which the certificate or certificates for shares of Common Stock shall be issued, and (ii) the Securities Notes with respect to which the Repurchase Notice or Fundamental Change Repurchase Notice relates repurchase right is being exercised, duly endorsed for transfer to the Company. Election of repurchase by a holder shall be revocable at any time after delivery of prior to, but excluding, the Repurchase Notice or the Fundamental Change Repurchase Noticerepurchase date, as the case may be (together with all necessary endorsements), at the offices of the Paying Agent, such delivery being a condition by delivering written notice to receipt by the Holder of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, thereof; provided, however, that such Repurchase Price or Fundamental Change Repurchase Price, as the case may be, shall be so paid pursuant to this Section 3.4(b) only if the Securities so delivered effect to the Paying Agent shall conform in all respects to the description thereof in the related Repurchase Notice or Fundamental Change Repurchase Notice. In the case of a repurchase right pursuant to Section 3.1 and Section 3.2, such delivery shall be at any time from the opening of business on the date that is 20 Business Days Trustee prior to the Repurchase Date until the close of business on the second Business Day prior to the Repurchase Date repurchase date.
(d) If the Company fails to repurchase on the repurchase date any Notes (or portions thereof) as to which the Fundamental Change Repurchase Daterepurchase right has been properly exercised, as then the case may beprincipal of such Notes shall, subject until paid, bear interest to extension to comply with the extent permitted by applicable law. Owners of beneficial interests in Global Securities law from the repurchase date at the rate borne by the Note and each such Note shall provide a Repurchase Notice or Fundamental Change Repurchase Notice be convertible into Common Stock in accordance with this Indenture (without giving effect to Section 16.2(b)) until the Applicable Procedures principal of the Depositarysuch Note shall have been paid or duly provided for.
Appears in 1 contract
Samples: Indenture (Alkermes Inc)
Notices; Method of Exercising Repurchase Right, Etc. (a1) Unless the Company shall have theretofore called for redemption all of the outstanding Outstanding Securities, on or before the 30th day after the occurrence of a Change in Control, the Company or, at the request and expense of the Company on or before the 15th day after such occurrence, the Trustee, shall give to the Trustee, the Paying Agent and all Holders of Securities, in the manner provided in this Section 3.41.6, a notice containing the information required pursuant to the following provisions of this Section 3.4(a) (the "Company Notice") (i) on or before the 20th Business Day prior to the Repurchase Date or, in the event of a Fundamental Change arising from a Change of Control, the anticipated Effective Date (but in no event earlier than 45 days prior to the Repurchase Date or anticipated Effective Date, as the case may be), and (ii) within 15 Business Days after the Company knows or reasonably should know of the occurrence of a Fundamental the Change that arises of Control and of the repurchase right set forth herein arising as a result of any Termination of Trading. Prior to or concurrently with the delivery of any Company Notice, thereof and the Company will shall issue a press release or publish such information on the Company's then existing website Press Release including the information required to be included in such Company Notice hereunder. The Company shall also deliver a copy of any such Company Notice to the Trustee. At the request and expense of the Company on or before the fifth Business Day prior to the date on which the Company Notice is to be mailed, the Trustee shall provide the Company Notice to the Holders in accordance with the provisions of this Indenture. Each Company Notice shall state:
(i) the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be,
(ii) the date by which the repurchase right must be exercised,
(iii) the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, and whether the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, shall be paid by the Company in cash or by delivery of shares of Common Stock, or a specified combination thereof and the percentage of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, that will be paid in shares of Common Stock (which indication shall be irrevocable, subject to the satisfaction (or waiver) of the conditions set forth in Section 3.3),
(iv) if the notice relates to the occurrence of a Fundamental Change, the events causing the Fundamental Change and the date of the Fundamental Change,
(v) that Securities with respect to which a Holder gives a Repurchase Notice or Fundamental Change Repurchase Notice may be converted only if the Holder withdraws the Repurchase Notice or Fundamental Change Repurchase Notice as to such Securities in accordance with the terms of this Indenture,
(vi) a description of the procedure that a Holder must follow to exercise a repurchase right, and the place or places where such Securities are to be surrendered for payment of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, and accrued but unpaid interest (and including Liquidated Damages, if any), if any, to, but excluding, any to the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be,
(viiv) that on the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be, the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, and accrued but unpaid interest (and Liquidated Damages), if any, to, but excluding, any to the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be, will become due and payable upon each such Security designated by the Holder to be repurchased, and that interest thereon shall cease to accrue on and after said date,
(viiivi) the Conversion Price Rate then in effect,, the date on which the right to convert the principal amount of the Securities to be repurchased will terminate and the place or places where such Securities may be surrendered for conversion, and
(ixvii) the place or places that the Security certificate (including with the Election of Holder to Require Repurchase attached thereto) and the Repurchase Notice (as defined below) specified in Section 2.2 shall be delivered, and, and if the Security is a Restricted Security, Securities Certificate the place or places that the Transfer Surrender Certificate in the form set forth in Exhibit C, required by Section 2.12 14.3(9) shall be delivered,
(x) the name and address of the Paying Agent and Conversion Agent, and
(xi) if the notice relates to a Fundamental Change, the estimated amount of any Make-Whole Premium and the respective percentages of such Make-Whole Premium that will be paid (as contemplated by Section 6.1(b)) in shares of Common Stock and in cash (which indication shall be irrevocable), subject to the satisfaction (or waiver) of the conditions set forth in Section 6.1(c), in the event that a Holder should, in lieu of electing to have Securities repurchased on the Fundamental Change Repurchase Date, elect to convert such Securities during the Fundamental Change Conversion Period, and
(xii) any other information to be included therein pursuant to Section 6.1. No failure of the Company to give the foregoing notices or defect therein shall limit any Holder's ' s right to exercise a repurchase right or affect the validity of the proceedings for the repurchase of Securities. If any of the foregoing provisions or other provisions of this Article III XIV are inconsistent with applicable law, such law shall govern.
(b2) To exercise a repurchase right pursuant to Section 3.1 or Section 3.2right, a Holder shall deliver to the Paying Agent Trustee on or before the 30th day after the date of the Company Notice (i) irrevocable written notice (in the case of a repurchase pursuant to Section 3.1, a "Repurchase Notice" and, in the case of a repurchase pursuant to Section 3.2, a "Fundamental Change Repurchase Notice") of the Holder's exercise of such right, which notice shall set forth the name of the Holder, the principal amount of the Securities to be repurchased (and, if any Security is to repurchased in part, the serial number thereof, the portion of the principal amount thereof to be repurchased (which portion must be in principal amounts of $1,000 or a whole multiple of $1,000) and the name of the Person in which the portion thereof to remain outstanding Outstanding after such repurchase is to be registered), if certificated, the certificate numbers of the Securities to be repurchased, ) and a statement that an election to exercise the repurchase right pursuant to the terms and conditions specified in the Securities and the Indenture is being made thereby, and, in the event that any portion of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, shall be paid in shares of Common Stock, the name or names (with addresses) in which the certificate or certificates for shares of Common Stock shall be issued, and (ii) the Securities with respect to which the Repurchase Notice or Fundamental Change Repurchase Notice relates at any time after delivery repurchase right is being exercised. Such written notice shall be irrevocable, except that the right of the Repurchase Notice or the Fundamental Change Repurchase Notice, as the case may be (together with all necessary endorsements), at the offices of the Paying Agent, such delivery being a condition Holder to receipt by the Holder of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, thereof; provided, however, that such Repurchase Price or Fundamental Change Repurchase Price, as the case may be, shall be so paid pursuant to this Section 3.4(b) only if convert the Securities so delivered with respect to which the Paying Agent shall conform in all respects to the description thereof in the related Repurchase Notice or Fundamental Change Repurchase Notice. In the case of a repurchase right pursuant to Section 3.1 and Section 3.2, such delivery is being exercised shall be at any time from the opening of business on the date that is 20 Business Days prior to the Repurchase Date continue until the close of business on the second Business Day immediately preceding the Repurchase Date.
(3) In the event a repurchase right shall be exercised in accordance with the terms hereof, the Company shall pay or cause to be paid to the Trustee the Repurchase Price in cash or shares of Common Stock, as provided above, for payment to the Holder on the Repurchase Date or, if shares of Common Stock are to be paid, as promptly after the Repurchase Date as practicable, together with accrued and unpaid interest to the Repurchase Date payable with respect to the Securities as to which the repurchase right has been exercised; provided, however, that installments of interest that mature on or prior to the Repurchase Date shall be payable in cash to the Holders of such Securities, or one or more Predecessor Securities, registered as such at the Fundamental Change close of business on the relevant Regular Record Date.
(4) If any Security (or portion thereof) surrendered for repurchase shall not be so paid on the Repurchase Date, the principal amount of such Security (or portion thereof, as the case may be) shall, subject until paid, bear interest to extension the extent permitted by applicable law from the Repurchase Date at the rate of [ ]% per annum, and each Security shall remain convertible into Common Stock until the principal of such Security (or portion thereof, as the case may be) shall have been paid or duly provided for.
(5) Any Security that is to comply with be repurchased only in part shall be surrendered to the Trustee (with, if the Company or the Trustee so requires, due endorsement by, or a written instrument of transfer in form satisfactory to the Company and the Trustee duly executed by, the Holder thereof or his attorney duly authorized in writing), and the Company shall execute, and the Trustee shall authenticate and make available for delivery to the Holder of such Security without service charge, a new Security or Securities, containing identical terms and conditions, each in an authorized denomination in aggregate principal amount equal to and in exchange for the unrepurchased portion of the principal of the Security so surrendered.
(6) Any issuance of shares of Common Stock in respect of the Repurchase Price shall be deemed to have been effected immediately prior to the close of business on the Repurchase Date and the Person or Persons in whose name or names any certificate or certificates for shares of Common Stock shall be issuable upon such repurchase shall be deemed to have become on the Repurchase Date the holder or holders of record of the shares represented thereby; provided, however, that any surrender for repurchase on a date when the stock transfer books of the Company shall be closed shall constitute the Person or Persons in whose name or names the certificate or certificates for such shares are to be issued as the record holder or holders thereof for all purposes at the opening of business on the next succeeding day on which such stock transfer books are open. No payment or adjustment shall be made for dividends or distributions on any Common Stock issued upon repurchase of any Security declared prior to the Repurchase Date.
(7) No fractions of shares shall be issued upon repurchase of Securities. If more than one Security shall be repurchased from the same Holder and the Repurchase Price shall be payable in shares of Common Stock, the number of full shares that shall be issuable upon such repurchase shall be computed on the basis of the aggregate principal amount of the Securities so repurchased. Instead of any fractional share of Common Stock that would otherwise be issuable on the repurchase of any Security or Securities, the Company will deliver to the applicable lawHolder its check for the current market value of such fractional share. Owners The current market value of beneficial interests in Global a fraction of a share is determined by multiplying the current market price of a full share by the fraction, and rounding the result to the nearest cent. For purposes of this Section, the current market price of a share of Common Stock is the Closing Price Per Share of the Common Stock on the Trading Day immediately preceding the Repurchase Date.
(8) Any issuance and delivery of certificates for shares of Common Stock on repurchase of Securities shall provide be made without charge to the Holder of Securities being repurchased for such certificates or for any tax or duty in respect of the issuance or delivery of such certificates or the securities represented thereby; provided, however, that the Company shall not be required to pay any tax or duty that may be payable in respect of (i) income of the Holder or (ii) any transfer involved in the issuance or delivery of certificates for shares of Common Stock in a Repurchase Notice name other than that of the Holder of the Securities being repurchased, and no such issuance or Fundamental Change Repurchase Notice delivery shall be made unless and until the Person requesting such issuance or delivery has paid to the Company the amount of any such tax or duty or has established, to the satisfaction of the Company, that such tax or duty has been paid.
(9) If shares of Common Stock to be delivered upon repurchase of a Security are to be registered in accordance a name other than that of the beneficial owner of such Security, then such Holder must deliver to the Trustee a Surrender Certificate, dated the date of surrender of such Restricted Security and signed by such beneficial owner, as to compliance with the Applicable Procedures restrictions on transfer applicable to such Restricted Security. Neither the Trustee nor any Registrar or Transfer Agent or other agents shall be required to register in a name other than that of the Depositarybeneficial owner shares of Common Stock issued upon repurchase of any such Restricted Security not so accompanied by a properly completed Surrender Certificate.
(10) All Securities delivered for repurchase shall be delivered to the Trustee to be canceled at the direction of the Trustee, which shall dispose of the same as provided in Section 3.9.
Appears in 1 contract
Samples: Indenture (Chiron Corp)
Notices; Method of Exercising Repurchase Right, Etc. (a) Unless the Company shall have theretofore called for redemption all of the outstanding Outstanding Securities, the Company shall give to the Trustee, the Paying Agent and all Holders of Securities, in the manner provided in this Section 3.4, a notice containing the information required pursuant to the following provisions of this Section 3.4(a) (the "Company Notice") (i) on or before the 20th Business Day prior to the Repurchase Date or, in the event of a Fundamental Change arising from a Change of Control, the anticipated Effective Date (but in no event earlier than 45 days prior to the Repurchase Date or anticipated Effective Date, as the case may be), and (ii) within 15 Business Days thirtieth day after the Company knows or reasonably should know of the occurrence of a Fundamental Change that arises as a result of any Termination of Trading. Prior to or concurrently with the delivery of any Company Noticein Control, the Company will issue a press release or publish such information on the Company's then existing website including the information required to be included in such Company Notice hereunder. The Company shall also deliver a copy of any Company Notice to the Trustee. At or, at the request and expense of the Company on or before the fifth Business Day prior thirtieth day after such occurrence, the Trustee, shall give to all Holders of Securities, in the manner provided in Section 1.6, notice (the "Company Notice") of the occurrence of the Change in Control and of the repurchase right set forth herein arising as a result thereof. The Company shall also deliver a copy of such notice of a repurchase right to the date on which the Company Notice is to be mailed, the Trustee shall provide the Company Notice to the Holders in accordance with the provisions of this IndentureTrustee. Each Company Notice notice of a repurchase right shall state:
(i1) the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be,
(ii2) the date by which the repurchase right must be exercised,
(iii3) the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, and whether the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, shall be paid by the Company in cash or by delivery of shares of Common Stock, or a specified combination thereof and the percentage of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, that will be paid in shares of Common Stock (which indication shall be irrevocable, subject to the satisfaction (or waiver) of the conditions set forth in Section 3.3),
(iv) if the notice relates to the occurrence of a Fundamental Change, the events causing the Fundamental Change and the date of the Fundamental Change,
(v) that Securities with respect to which a Holder gives a Repurchase Notice or Fundamental Change Repurchase Notice may be converted only if the Holder withdraws the Repurchase Notice or Fundamental Change Repurchase Notice as to such Securities in accordance with the terms of this Indenture,
(vi4) a description of the procedure that a Holder must follow to exercise a repurchase right, and the place or places where such Securities are to be surrendered for payment of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, and accrued but unpaid interest (and Liquidated Damages)interest, if any, to, but excluding, the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be,
(vii5) that on the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be, the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, and accrued but unpaid interest (and Liquidated Damages)interest, if any, to, but excluding, the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be, will become due and payable upon each such Security designated by the Holder to be repurchased, repurchased and that interest thereon shall cease to accrue on and after said date,
(viii6) the Conversion Price Rate then in effect, the date on which the right to convert the principal amount of the Securities to be repurchased will terminate and the place or places where such Securities may be surrendered for conversion,
(ix7) the place or places that the Security certificate (including the Notice of Election of Holder to Require Repurchase attached thereto) and the Repurchase Notice (hereto as defined below) Exhibit B, shall be delivered, and, if the Security is a Restricted Security, the place or places that the Transfer Certificate in and the form set forth in Exhibit C, required by Section 2.12 shall be delivered,
(x) the name and address of the Paying Agent and Conversion Agentsuch notice, and
(xi) if 8) the notice relates to a Fundamental Change, the estimated amount of any Make-Whole Premium and the respective percentages CUSIP number or numbers of such Make-Whole Premium that will be paid (as contemplated by Section 6.1(b)) in shares of Common Stock and in cash (which indication shall be irrevocable), subject to the satisfaction (or waiver) of the conditions set forth in Section 6.1(c), in the event that a Holder should, in lieu of electing to have Securities repurchased on the Fundamental Change Repurchase Date, elect to convert such Securities during the Fundamental Change Conversion Period, and
(xii) any other information to be included therein pursuant to Section 6.1Securities. No failure of the Company to give the foregoing notices or defect therein shall limit any Holder's right to exercise a repurchase right or affect the validity of the proceedings for the repurchase of Securities. If any of the foregoing provisions or other provisions of this Article III Twelve are inconsistent with applicable law, such law shall govern.
(b) To exercise a repurchase right pursuant to Section 3.1 or Section 3.2right, a Holder shall deliver to the Paying Agent Trustee on or before the thirtieth day (ior such greater period as may be required by applicable law) after the date of the Company Notice (1) written notice (in the case of a repurchase pursuant to Section 3.1, a "Repurchase Notice" and, in the case of a repurchase pursuant to Section 3.2, a "Fundamental Change Repurchase Notice") of the Holder's exercise of such right, which notice shall set forth the name of the Holder, the principal amount of the Securities to be repurchased (and, if any Security is to repurchased in part, the serial number thereof, the portion of the principal amount thereof to be repurchased (which portion must be in principal amounts of $1,000 or a whole multiple of $1,000) and the name of the Person in which the portion thereof to remain outstanding Outstanding after such repurchase is to be registered), if certificated, the certificate numbers of the Securities to be repurchased, ) and a statement that an election to exercise the repurchase right pursuant to the terms and conditions specified in the Securities and the Indenture is being made thereby, and, in the event that any portion of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, shall be paid in shares of Common Stock, the name or names (with addresses) in which the certificate or certificates for shares of Common Stock shall be issued, and (ii2) the Securities with respect to which the Repurchase Notice or Fundamental Change Repurchase Notice relates at any time after delivery repurchase right is being exercised. Such written notice shall be irrevocable, except that the right of the Repurchase Notice or the Fundamental Change Repurchase Notice, as the case may be (together with all necessary endorsements), at the offices of the Paying Agent, such delivery being a condition Holder to receipt by the Holder of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, thereof; provided, however, that such Repurchase Price or Fundamental Change Repurchase Price, as the case may be, shall be so paid pursuant to this Section 3.4(b) only if convert the Securities so delivered with respect to which the Paying Agent shall conform in all respects to the description thereof in the related Repurchase Notice or Fundamental Change Repurchase Notice. In the case of a repurchase right pursuant to Section 3.1 and Section 3.2, such delivery is being exercised shall be at any time from the opening of business on the date that is 20 Business Days prior to the Repurchase Date continue until the close of business on the second Business Day immediately preceding the Repurchase Date.
(c) In the event a repurchase right shall be exercised in accordance with the terms hereof, the Company shall pay or cause to be paid to the Trustee the Repurchase Price in cash or shares of Common Stock, as provided above, for payment to the Holder on the Repurchase Date or, if shares of Common Stock are to be paid, as promptly after the Repurchase Date as practicable, together with accrued and unpaid interest to the Repurchase Date payable with respect to the Securities as to which the purchase right has been exercised; provided, however, that installments of interest that mature on or prior to the Repurchase Date shall be payable in cash to the Holders of such Securities, or one or more Predecessor Securities, registered as such at the Fundamental Change close of business on the relevant Regular Record Date.
(d) If any Security (or portion thereof) surrendered for repurchase shall not be so paid on the Repurchase Date, the principal amount of such Security (or portion thereof, as the case may be) shall, subject until paid, bear interest to extension the extent permitted by applicable law from the Repurchase Date at the rate then in effect per annum, and each Security shall remain convertible into Common Stock until the principal of such Security (or portion thereof, as the case may be) shall have been paid or duly provided for.
(e) Any Security that is to comply with be repurchased only in part shall be surrendered to the Trustee (with, if the Company or the Trustee so requires, due endorsement by, or a written instrument of transfer in form satisfactory to the Company and the Trustee duly executed by, the Holder thereof or his attorney duly authorized in writing), and the Company shall execute, and the Trustee shall authenticate and make available for delivery to the Holder of such Security without service charge, a new Security or Securities, containing identical terms and conditions, each in an authorized denomination in aggregate principal amount equal to and in exchange for the unrepurchased portion of the principal of the Security so surrendered.
(f) Any issuance of shares of Common Stock in respect of the Repurchase Price shall be deemed to have been effected immediately prior to the close of business on the Repurchase Date and the Person or Persons in whose name or names any certificate or certificates for shares of Common Stock shall be issuable upon such repurchase shall be deemed to have become on the Repurchase Date the holder or holders of record of the shares represented thereby; provided, however, that any surrender for repurchase on a date when the stock transfer books of the Company shall be closed shall constitute the Person or Persons in whose name or names the certificate or certificates for such shares are to be issued as the record holder or holders thereof for all purposes at the opening of business on the next succeeding day on which such stock transfer books are open. No payment or adjustment shall be made for dividends or distributions on any Common Stock issued upon repurchase of any Security declared prior to the Repurchase Date.
(g) No fractions of shares shall be issued upon repurchase of Securities. If more than one Security shall be repurchased from the same Holder and the Repurchase Price shall be payable in shares of Common Stock, the number of full shares that shall be issuable upon such repurchase shall be computed on the basis of the aggregate principal amount of the Securities so repurchased. Instead of any fractional share of Common Stock that would otherwise be issuable on the repurchase of any Security or Securities, the Company will deliver to the applicable lawHolder its check for the current market value of such fractional share. Owners The current market value of beneficial interests in Global a fraction of a share is determined by multiplying the current market price of a full share by the fraction and rounding the result to the nearest cent. For purposes of this Section 12.3, the current market price of a share of Common Stock is the average of the high and low sales price per Share of the Common Stock on the Trading Day immediately preceding the Repurchase Date.
(h) Any issuance and delivery of certificates for shares of Common Stock on repurchase of Securities shall provide a Repurchase Notice be made without charge to the Holder of Securities being repurchased for such certificates or Fundamental Change Repurchase Notice for any tax or duty in accordance with the Applicable Procedures respect of the Depositaryissuance or delivery of such certificates or the securities represented thereby; provided, however, that the Company shall not be required to pay any tax or duty that may be payable in respect of (1) income of the Holder or (2) any transfer involved in the issuance or delivery of certificates for shares of Common Stock in a name other than that of the Holder of the Securities being repurchased, and no such issuance or delivery shall be made unless and until the Person requesting such issuance or delivery has paid to the Company the amount of any such tax or duty or has established, to the satisfaction of the Company, that such tax or duty has been paid.
(i) All Securities delivered for repurchase shall be delivered to the Trustee to be canceled at the direction of the Trustee, which shall dispose of the same as provided in Section 2.10.
Appears in 1 contract
Notices; Method of Exercising Repurchase Right, Etc. (a) Unless the Company shall have theretofore called for redemption all of the outstanding SecuritiesOutstanding Notes, on or before the 30th day after the occurrence of a Change in Control, the Company or, at the request and expense of the Company, the Trustee, shall give to the Trustee, the Paying Agent and all Holders of SecuritiesNotes, in the manner provided in this Section 3.41.6 of the Indenture, a notice containing the information required pursuant to the following provisions of this Section 3.4(a) (the "Company Notice") (i) on or before the 20th Business Day prior to the Repurchase Date or, in the event of a Fundamental Change arising from a Change of Control, the anticipated Effective Date (but in no event earlier than 45 days prior to the Repurchase Date or anticipated Effective Date, as the case may be), and (ii) within 15 Business Days after the Company knows or reasonably should know of the occurrence of a Fundamental the Change that arises in Control and of the repurchase right set forth herein arising as a result of any Termination of Trading. Prior to or concurrently with the delivery of any Company Notice, the Company will issue a press release or publish such information on the Company's then existing website including the information required to be included in such Company Notice hereunderthereof. The Company shall also deliver a copy of any Company Notice such notice of a repurchase right to the Trustee. At the request and expense of the Company on or before the fifth Business Day prior to the date on which the Company Notice is to be mailed, the Trustee shall provide the Company Notice to the Holders in accordance with the provisions of this Indenture. Each Company Notice shall describe such Change in Control, shall state that as a result of the occurrence of such Change in Control the Holder has the right to require the Company to repurchase the Holder's Notes in whole or in part and shall state:
(i) the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be,
(ii) the date by which the repurchase right must be exercisedexercised pursuant to Section 4.02(b),
(iii) the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, and whether the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, shall be paid by the Company in cash or by delivery of shares of Common Stock, or a specified combination thereof and the percentage of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, that will be paid in shares of Common Stock (which indication shall be irrevocable, subject to the satisfaction (or waiver) of the conditions set forth in Section 3.3),
(iv) if the notice relates to the occurrence of a Fundamental Change, the events causing the Fundamental Change and the date of the Fundamental Change,
(v) that Securities with respect to which a Holder gives a Repurchase Notice or Fundamental Change Repurchase Notice may be converted only if the Holder withdraws the Repurchase Notice or Fundamental Change Repurchase Notice as to such Securities in accordance with the terms of this Indenture,
(vi) a description of the procedure that which a Holder must follow to exercise a repurchase right, and the place or places where such Securities Notes are to be surrendered for payment of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, and accrued but and unpaid interest (and Liquidated Damages)interest, if any, to, but excluding, the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be,
(viiv) that on the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be, the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, and accrued but and unpaid interest (and Liquidated Damages)interest, if any, to, but excluding, the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be, will become due and payable upon each such Security Note designated by the Holder to be repurchasedrepurchased (unless such Holder exercises its right to convert such Note pursuant to Article V of this Supplemental Indenture), and that interest thereon shall cease to accrue on and after said datedate with respect to any Note designated by the Holder to be repurchased,
(viiivi) the Conversion Price then in effect,, the date on which the right to convert the principal amount of the Notes to be repurchased will terminate and the place or places where such Notes may be surrendered for conversion, and
(ixvii) the place or places that the Security certificate (including the Election of Holder to Require Repurchase attached thereto) and the Repurchase Notice (as defined belownotice described in Section 4.02(b) shall be delivered, and, if the Security is a Restricted Security, the place or places that the Transfer Certificate in and the form set forth in Exhibit C, required by Section 2.12 shall be delivered,
(x) the name and address of the Paying Agent and Conversion Agent, and
(xi) if the notice relates to a Fundamental Change, the estimated amount of any Make-Whole Premium and the respective percentages of such Make-Whole Premium that will be paid (as contemplated by Section 6.1(b)) in shares of Common Stock and in cash (which indication shall be irrevocable), subject to the satisfaction (or waiver) of the conditions set forth in Section 6.1(c), in the event that a Holder should, in lieu of electing to have Securities repurchased on the Fundamental Change Repurchase Date, elect to convert such Securities during the Fundamental Change Conversion Period, and
(xii) any other information to be included therein pursuant to Section 6.1notice. No failure of the Company to give the foregoing notices or defect therein shall limit any Holder's right to exercise a repurchase right or affect the validity of the proceedings for the repurchase of SecuritiesNotes. If any of the foregoing provisions or other provisions of this Article III are inconsistent with applicable law, such law shall govern.
(b) To exercise a repurchase right pursuant to Section 3.1 or Section 3.2right, a Holder shall deliver to the Trustee or any Paying Agent on or before the 30th day after the date of the Company Notice (i) written notice (in the case of a repurchase pursuant to Section 3.1, a "Repurchase Notice" and, in the case of a repurchase pursuant to Section 3.2, a "Fundamental Change Repurchase Notice") of the Holder's exercise of such right, which notice shall set forth the name of the Holder, the principal amount of the Securities Notes to be repurchased (and, if any Security Note is to repurchased in part, the serial number thereof, the portion of the principal amount thereof to be repurchased (which portion must be in principal amounts of $1,000 or a whole multiple of $1,000) and the name of the Person in which the portion thereof to remain outstanding Outstanding after such repurchase is to be registered), if certificated, the certificate numbers of the Securities to be repurchased, ) and a statement that an election to exercise the repurchase right pursuant to the terms and conditions specified in the Securities and the Indenture is being made thereby, and, in the event that any portion of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, shall be paid in shares of Common Stock, the name or names (with addresses) in which the certificate or certificates for shares of Common Stock shall be issued, and (ii) the Securities Notes with respect to which the Repurchase Notice or Fundamental Change Repurchase Notice relates at any time after delivery repurchase right is being exercised. Such written notice shall be irrevocable, except that the right of the Repurchase Notice or Holder to revoke such election by converting the Fundamental Change Repurchase Notice, as Notes with respect to which the case may be (together with all necessary endorsements), at the offices of the Paying Agent, such delivery being a condition to receipt by the Holder of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, thereof; provided, however, that such Repurchase Price or Fundamental Change Repurchase Price, as the case may be, shall be so paid pursuant to this Section 3.4(b) only if the Securities so delivered to the Paying Agent shall conform in all respects to the description thereof in the related Repurchase Notice or Fundamental Change Repurchase Notice. In the case of a repurchase right pursuant to Section 3.1 and Section 3.2, such delivery is being exercised shall be at any time from the opening of business on the date that is 20 Business Days prior to the Repurchase Date continue until the close of business on the second Business Day immediately preceding the Repurchase Date.
(c) If the Holder of a Note exercises a repurchase right in accordance with the terms hereof, the Company shall pay or cause to be paid to the Trustee or the Paying Agent the Repurchase Price in cash for payment to such Holder on the Repurchase Date together with accrued and unpaid interest, if any, to but excluding the Repurchase Date payable with respect to the Notes as to which such Holder has exercised the repurchase right; provided, however, that installments of interest that mature on or prior to the Repurchase Date shall be payable in cash to the Holders of such Notes, or one or more Predecessor Securities, registered as such at the Fundamental Change close of business on the relevant Regular Record Date, in each case according to the terms and provisions of Article Three of the Indenture.
(d) If any Note (or portion thereof) surrendered for repurchase shall not be so paid on the Repurchase Date, the principal amount of such Note (or portion thereof, as the case may be) shall, subject until paid, bear interest to extension the extent permitted by applicable law from the Repurchase Date at the rate of 4.50% per annum, and each Note shall remain convertible into Common Stock until the principal of such Note (or portion thereof, as the case may be) shall have been paid or duly provided for.
(e) Any Note which is to comply with applicable law. Owners be repurchased only in part shall be surrendered to the Trustee (with, if the Company or the Trustee so requires, due endorsement by, or a written instrument of beneficial interests transfer in Global Securities form satisfactory to the Company and the Trustee duly executed by, the Holder thereof or such Holder's attorney duly authorized in writing), and the Company shall provide execute, and the Trustee shall authenticate and make available for delivery to the Holder of such Note without service charge, a Repurchase Notice new Note or Fundamental Change Repurchase Notice Notes, containing identical terms and conditions, each in accordance with an authorized denomination in aggregate principal amount equal to and in exchange for the Applicable Procedures unrepurchased portion of the Depositaryprincipal of the Note so surrendered.
Appears in 1 contract
Samples: First Supplemental Indenture (Continental Airlines Inc /De/)
Notices; Method of Exercising Repurchase Right, Etc. (a1) Unless the Company shall have theretofore called for redemption all of the outstanding Outstanding Securities, on or before the 30th day after the occurrence of a Change in Control, the Company or, at the request and expense of the Company on or before the 15th day after such occurrence, the Trustee, shall give to the Trustee, the Paying Agent and all Holders of Securities, in the manner provided in this Section 3.41.6, a notice containing the information required pursuant to the following provisions of this Section 3.4(a) (the "Company Notice") (i) on or before the 20th Business Day prior to the Repurchase Date or, in the event of a Fundamental Change arising from a Change of Control, the anticipated Effective Date (but in no event earlier than 45 days prior to the Repurchase Date or anticipated Effective Date, as the case may be), and (ii) within 15 Business Days after the Company knows or reasonably should know of the occurrence of a Fundamental the Change that arises of Control and of the repurchase right set forth herein arising as a result of any Termination of Trading. Prior to or concurrently with the delivery of any Company Notice, thereof and the Company will shall issue a press release or publish such information on the Company's then existing website Press Release including the information required to be included in such Company Notice hereunder. The Company shall also deliver a copy of any such Company Notice to the Trustee. At the request and expense of the Company on or before the fifth Business Day prior to the date on which the Company Notice is to be mailed, the Trustee shall provide the Company Notice to the Holders in accordance with the provisions of this Indenture. Each Company Notice shall state:
(i) the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be,
(ii) the date by which the repurchase right must be exercised,
(iii) the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, and whether the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, shall be paid by the Company in cash or by delivery of shares of Common Stock, or a specified combination thereof and the percentage of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, that will be paid in shares of Common Stock (which indication shall be irrevocable, subject to the satisfaction (or waiver) of the conditions set forth in Section 3.3),
(iv) if the notice relates to the occurrence of a Fundamental Change, the events causing the Fundamental Change and the date of the Fundamental Change,
(v) that Securities with respect to which a Holder gives a Repurchase Notice or Fundamental Change Repurchase Notice may be converted only if the Holder withdraws the Repurchase Notice or Fundamental Change Repurchase Notice as to such Securities in accordance with the terms of this Indenture,
(vi) a description of the procedure that a Holder must follow to exercise a repurchase right, and the place or places where such Securities are to be surrendered for payment of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, and accrued but unpaid interest (and including Liquidated Damages, if any), if any, to, but excluding, any to the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be,
(viiv) that on the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be, the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, and accrued but unpaid interest (and including Liquidated Damages, if any), if any, to, but excluding, any to the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be, will become due and payable upon each such Security designated by the Holder to be repurchased, and that interest thereon shall cease to accrue on and after said date,
(viiivi) the Conversion Price Rate then in effect,, the date on which the right to convert the principal amount of the Securities to be repurchased will terminate and the place or places where such Securities may be surrendered for conversion, and
(ixvii) the place or places that the Security certificate (including with the Election of Holder to Require Repurchase attached thereto) and the Repurchase Notice (as defined below) specified in Section 2.2 shall be delivered, and, and if the Security is a Restricted Security, Securities Certificate the place or places that the Transfer Surrender Certificate in the form set forth in Exhibit C, required by Section 2.12 13.3(9) shall be delivered,
(x) the name and address of the Paying Agent and Conversion Agent, and
(xi) if the notice relates to a Fundamental Change, the estimated amount of any Make-Whole Premium and the respective percentages of such Make-Whole Premium that will be paid (as contemplated by Section 6.1(b)) in shares of Common Stock and in cash (which indication shall be irrevocable), subject to the satisfaction (or waiver) of the conditions set forth in Section 6.1(c), in the event that a Holder should, in lieu of electing to have Securities repurchased on the Fundamental Change Repurchase Date, elect to convert such Securities during the Fundamental Change Conversion Period, and
(xii) any other information to be included therein pursuant to Section 6.1. No failure of the Company to give the foregoing notices or defect therein shall limit any Holder's ' s right to exercise a repurchase right or affect the validity of the proceedings for the repurchase of Securities. If any of the foregoing provisions or other provisions of this Article III XIV are inconsistent with applicable law, such law shall govern.
(b2) To exercise a repurchase right pursuant to Section 3.1 or Section 3.2right, a Holder shall deliver to the Paying Agent Trustee on or before the 30th day after the date of the Company Notice (i) irrevocable written notice (in the case of a repurchase pursuant to Section 3.1, a "Repurchase Notice" and, in the case of a repurchase pursuant to Section 3.2, a "Fundamental Change Repurchase Notice") of the Holder's exercise of such right, which notice shall set forth the name of the Holder, the principal amount of the Securities to be repurchased (and, if any Security is to repurchased in part, the serial number thereof, the portion of the principal amount thereof to be repurchased (which portion must be in principal amounts of $1,000 or a whole multiple of $1,000) and the name of the Person in which the portion thereof to remain outstanding Outstanding after such repurchase is to be registered), if certificated, the certificate numbers of the Securities to be repurchased, ) and a statement that an election to exercise the repurchase right pursuant to the terms and conditions specified in the Securities and the Indenture is being made thereby, and, in the event that any portion of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, shall be paid in shares of Common Stock, the name or names (with addresses) in which the certificate or certificates for shares of Common Stock shall be issued, and (ii) the Securities with respect to which the Repurchase Notice or Fundamental Change Repurchase Notice relates at any time after delivery repurchase right is being exercised. Such written notice shall be irrevocable, except that the right of the Repurchase Notice or the Fundamental Change Repurchase Notice, as the case may be (together with all necessary endorsements), at the offices of the Paying Agent, such delivery being a condition Holder to receipt by the Holder of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, thereof; provided, however, that such Repurchase Price or Fundamental Change Repurchase Price, as the case may be, shall be so paid pursuant to this Section 3.4(b) only if convert the Securities so delivered with respect to which the Paying Agent shall conform in all respects to the description thereof in the related Repurchase Notice or Fundamental Change Repurchase Notice. In the case of a repurchase right pursuant to Section 3.1 and Section 3.2, such delivery is being exercised shall be at any time from the opening of business on the date that is 20 Business Days prior to the Repurchase Date continue until the close of business on the second Business Day immediately preceding the Repurchase Date.
(3) In the event a repurchase right shall be exercised in accordance with the terms hereof, the Company shall pay or cause to be paid to the Trustee the Repurchase Price in cash or shares of Common Stock, as provided above, for payment to the Holder on the Repurchase Date on the date that is 45 days after the date of the Company's notice, together with accrued and unpaid interest to the Repurchase Date payable with respect to the Securities as to which the repurchase right has been exercised; provided, however, that installments of interest that mature on or prior to the Repurchase Date shall be payable in cash to the Holders of such Securities, or one or more Predecessor Securities, registered as such at the Fundamental Change close of business on the relevant Regular Record Date.
(4) If any Security (or portion thereof) surrendered for repurchase shall not be so paid on the Repurchase Date, the principal amount of such Security (or portion thereof, as the case may be) shall, subject until paid, bear interest to extension the extent permitted by applicable law from the Repurchase Date at the rate of 3.75% per annum, and each Security shall remain convertible into Common Stock until the principal of such Security (or portion thereof, as the case may be) shall have been paid or duly provided for.
(5) Any Security that is to comply with be repurchased only in part shall be surrendered to the Trustee (with, if the Company or the Trustee so requires, due endorsement by, or a written instrument of transfer in form satisfactory to the Company and the Trustee duly executed by, the Holder thereof or his attorney duly authorized in writing), and the Company shall execute, and the Trustee shall authenticate and make available for delivery to the Holder of such Security without service charge, a new Security or Securities, containing identical terms and conditions, each in an authorized denomination in aggregate principal amount equal to and in exchange for the unrepurchased portion of the principal of the Security so surrendered.
(6) Any issuance of shares of Common Stock in respect of the Repurchase Price shall be deemed to have been effected immediately prior to the close of business on the Repurchase Date and the Person or Persons in whose name or names any certificate or certificates for shares of Common Stock shall be issuable upon such repurchase shall be deemed to have become on the Repurchase Date the holder or holders of record of the shares represented thereby; provided, however, that any surrender for repurchase on a date when the stock transfer books of the Company shall be closed shall constitute the Person or Persons in whose name or names the certificate or certificates for such shares are to be issued as the record holder or holders thereof for all purposes at the opening of business on the next succeeding day on which such stock transfer books are open. No payment or adjustment shall be made for dividends or distributions on any Common Stock issued upon repurchase of any Security declared prior to the Repurchase Date.
(7) No fractions of shares shall be issued upon repurchase of Securities. If more than one Security shall be repurchased from the same Holder and the Repurchase Price shall be payable in shares of Common Stock, the number of full shares that shall be issuable upon such repurchase shall be computed on the basis of the aggregate principal amount of the Securities so repurchased. Instead of any fractional share of Common Stock that would otherwise be issuable on the repurchase of any Security or Securities, the Company will deliver to the applicable lawHolder its check for the current market value of such fractional share. Owners The current market value of beneficial interests in Global a fraction of a share is determined by multiplying the current market price of a full share by the fraction, and rounding the result to the nearest cent. For purposes of this Section, the current market price of a share of Common Stock is the Closing Price Per Share of the Common Stock on the Trading Day immediately preceding the Repurchase Date.
(8) Any issuance and delivery of certificates for shares of Common Stock on repurchase of Securities shall provide be made without charge to the Holder of Securities being repurchased for such certificates or for any tax or duty in respect of the issuance or delivery of such certificates or the securities represented thereby; provided, however, that the Company shall not be required to pay any tax or duty that may be payable in respect of (i) income of the Holder or (ii) any transfer involved in the issuance or delivery of certificates for shares of Common Stock in a Repurchase Notice name other than that of the Holder of the Securities being repurchased, and no such issuance or Fundamental Change Repurchase Notice delivery shall be made unless and until the Person requesting such issuance or delivery has paid to the Company the amount of any such tax or duty or has established, to the satisfaction of the Company, that such tax or duty has been paid.
(9) If shares of Common Stock to be delivered upon repurchase of a Security are to be registered in accordance a name other than that of the beneficial owner of such Security, then such Holder must deliver to the Trustee a Surrender Certificate, dated the date of surrender of such Restricted Security and signed by such beneficial owner, as to compliance with the Applicable Procedures restrictions on transfer applicable to such Restricted Security. Neither the Trustee nor any Registrar or Transfer Agent or other agents shall be required to register in a name other than that of the Depositarybeneficial owner shares of Common Stock issued upon repurchase of any such Restricted Security not so accompanied by a properly completed Surrender Certificate.
(10) All Securities delivered for repurchase shall be delivered to the Trustee to be canceled at the direction of the Trustee, which shall dispose of the same as provided in Section 3.9.
Appears in 1 contract
Samples: Indenture (Teradyne Inc)
Notices; Method of Exercising Repurchase Right, Etc. (a) Unless the Company shall have theretofore called for redemption all of the outstanding Outstanding Securities, prior to or on the 30th day after the occurrence of a Change in Control, the Company, or, at the written request and expense of the Company prior to or on the 30th day after such occurrence, the Trustee, shall give to the Trustee, the Paying Agent and all Holders of SecuritiesSecurities notice, in the manner provided in this Section 3.415.2, of the occurrence of the Change of Control and of the Repurchase Right set forth herein arising as a notice containing the information required pursuant to the following provisions of this Section 3.4(a) result thereof (the "Company Notice") (i) on or before the 20th Business Day prior to the Repurchase Date or, in the event of a Fundamental Change arising from a Change of Control, the anticipated Effective Date (but in no event earlier than 45 days prior to the Repurchase Date or anticipated Effective Date, as the case may be), and (ii) within 15 Business Days after the Company knows or reasonably should know of the occurrence of a Fundamental Change that arises as a result of any Termination of Trading. Prior to or concurrently with the delivery of any Company Notice, the Company will issue a press release or publish such information on the Company's then existing website including the information required to be included in such Company Notice hereunder. The Company shall also deliver a copy of any such Company Notice of the Repurchase Right to the Trustee. At the request and expense of the Company on or before the fifth Business Day prior to the date on which the Company Notice is to be mailed, the Trustee shall provide the Company Notice to the Holders in accordance with the provisions of this Indenture. Each Company Notice of a Repurchase Right shall state:
(i1) the Repurchase Date or the Fundamental Change applicable Repurchase Date, as the case may be,;
(ii2) the date by which the repurchase right Repurchase Right must be exercised,;
(iii3) the Repurchase Price or the Fundamental Change Repurchase Priceand accrued and unpaid interest (including Additional Amounts, as the case may be, and whether the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, shall be paid by the Company in cash or by delivery of shares of Common Stock, or a specified combination thereof and the percentage of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, that will be paid in shares of Common Stock (which indication shall be irrevocable, subject to the satisfaction (or waiver) of the conditions set forth in Section 3.3if any),;
(iv) if the notice relates to the occurrence of a Fundamental Change, the events causing the Fundamental Change and the date of the Fundamental Change,
(v) that Securities with respect to which a Holder gives a Repurchase Notice or Fundamental Change Repurchase Notice may be converted only if the Holder withdraws the Repurchase Notice or Fundamental Change Repurchase Notice as to such Securities in accordance with the terms of this Indenture,
(vi4) a description of the procedure that which a Holder must follow to exercise a repurchase rightits Repurchase Right, and the place or places where such Securities are to be surrendered for payment of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, and accrued but and unpaid interest (and Liquidated Damages), if any, to, but excluding, the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be,interest;
(vii5) that on the applicable Repurchase Date or the Fundamental Change Repurchase Date, as the case may be, the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, and accrued but and unpaid interest (and Liquidated Damages), if any, to, but excluding, the Repurchase Date or the Fundamental Change Repurchase Date, as the case may beinterest, will become due and payable in cash upon each such Security designated by the Holder to be repurchased, and that interest thereon shall cease to accrue on and after said date,;
(viii6) the Conversion Price Rate then in effect,, the date on which the right to convert the principal amount of the Securities to be repurchased will terminate and the place where such Securities may be surrendered for conversion, and
(ix7) the place or places that where such Securities, together with the Security Option to Elect Repayment certificate (including the Election included in Exhibit A annexed hereto are to be delivered for payment of Holder to Require Repurchase attached thereto) and the Repurchase Notice (as defined below) shall be delivered, and, if the Security is a Restricted Security, the place or places that the Transfer Certificate in the form set forth in Exhibit C, required by Section 2.12 shall be delivered,
(x) the name Price and address of the Paying Agent accrued and Conversion Agent, and
(xi) if the notice relates to a Fundamental Change, the estimated amount of any Make-Whole Premium and the respective percentages of such Make-Whole Premium that will be paid (as contemplated by Section 6.1(b)) in shares of Common Stock and in cash (which indication shall be irrevocable), subject to the satisfaction (or waiver) of the conditions set forth in Section 6.1(c), in the event that a Holder should, in lieu of electing to have Securities repurchased on the Fundamental Change Repurchase Date, elect to convert such Securities during the Fundamental Change Conversion Period, and
(xii) any other information to be included therein pursuant to Section 6.1unpaid interest. No failure of the Company to give the foregoing notices or defect therein shall limit any Holder's right to exercise a repurchase right Repurchase Right or affect the validity of the proceedings for the repurchase of Securities. If any of the foregoing provisions or other provisions of this Article III 11 are inconsistent with applicable law, such law shall govern.
(b) To exercise a repurchase right pursuant to Section 3.1 or Section 3.2its Repurchase Right, a Holder shall deliver to the Paying Agent Trustee on or prior to the close of business on the Business Day immediately preceding the Repurchase Date:
(i1) written notice (in the case of a repurchase pursuant to Section 3.1, a "Repurchase Notice" and, in the case of a repurchase pursuant to Section 3.2, a "Fundamental Change Repurchase Notice") of the Holder's exercise of such right, which notice shall set forth the name of the Holder, ; the certificate numbers of the Securities to be delivered for repurchase; the portion of the principal amount of the Securities to be repurchased, which portion must be $1,000 or an integral multiple of $1,000; that such Securities are to be repurchased by the Company pursuant to the applicable provisions of the Securities; and a statement that an election to exercise the applicable Repurchase Right is being made thereby; and
(2) the Securities with respect to which the Repurchase Right is being exercised (and, if any Security is to be repurchased in part, the serial number thereof, and the portion of the principal amount thereof to be repurchased (which portion must be in principal amounts of $1,000 or a whole multiple of $1,000) and the name repurchased). The right of the Person in which the portion thereof Holder to remain outstanding after such repurchase is to be registered), if certificated, the certificate numbers of convert the Securities to be repurchased, and a statement that an election to exercise the repurchase right pursuant to the terms and conditions specified in the Securities and the Indenture is being made thereby, and, in the event that any portion of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, shall be paid in shares of Common Stock, the name or names (with addresses) in which the certificate or certificates for shares of Common Stock shall be issued, and (ii) the Securities respect to which the Repurchase Notice or Fundamental Change Repurchase Notice relates at any time after delivery of the Repurchase Notice or the Fundamental Change Repurchase Notice, as the case may be (together with all necessary endorsements), at the offices of the Paying Agent, such delivery Right is being a condition to receipt by the Holder of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, thereof; provided, however, that such Repurchase Price or Fundamental Change Repurchase Price, as the case may be, exercised shall be so paid pursuant to this Section 3.4(b) only if the Securities so delivered to the Paying Agent shall conform in all respects to the description thereof in the related Repurchase Notice or Fundamental Change Repurchase Notice. In the case of a repurchase right pursuant to Section 3.1 and Section 3.2, such delivery shall be at any time from the opening of business on the date that is 20 Business Days prior to the Repurchase Date continue until the close of business on the second Business Day immediately preceding the Repurchase Date.
(c) Each Holder may withdraw a repurchase notice by delivering to the Paying Agent a notice (the "Notice of Withdrawal") prior to the close of business on the Business Day immediately preceding the Repurchase Date. The notice of withdrawal must state:
(1) the portion of the principal amount of Securities being withdrawn;
(2) the certificate numbers of the Securities being withdrawn; and
(3) the portion of the principal amount, if any, of the Securities that remains subject to the Repurchase Right.
(d) In the event the Repurchase Right shall be exercised in accordance with the terms hereof, the Company shall pay or cause to be paid to the Trustee the Repurchase Price in cash, as provided above, for payment to the Holder on the Repurchase Date, together with accrued and unpaid interest to, but excluding, the Repurchase Date payable in cash with respect to the Securities as to which the Repurchase Right has been exercised; provided, however, that installments of interest that mature prior to or on the Fundamental Change Repurchase Date shall be payable in cash to the Holders of such Securities, or one or more Predecessor Securities, registered as such at the close of business on the relevant Regular Record Date.
(e) If any Security (or portion thereof) surrendered for repurchase shall not be so paid on the Repurchase Date, the principal amount of such Security (or portion thereof, as the case may be) shall, subject until paid, bear interest to extension the extent permitted by applicable law from the Repurchase Date at the Interest Rate, and each Security shall remain convertible into Common Shares until the principal of such Security (or portion thereof, as the case may be) shall have been paid or duly provided for.
(f) Any Security which is to comply with applicable law. Owners be repurchased only in part shall be surrendered to the Trustee (with, if the Company or the Trustee so requires, due endorsement by, or a written instrument of beneficial interests transfer in Global Securities form satisfactory to the Company and the Trustee duly executed by the Holder thereof or his attorney duly authorized in writing), and the Company shall provide execute, and the Trustee shall authenticate and make available for delivery to the Holder of such Security without service charge, a Repurchase Notice new Security or Fundamental Change Repurchase Notice Securities, containing identical terms and conditions, each in accordance with an authorized denomination in aggregate principal amount equal to and in exchange for the Applicable Procedures unrepurchased portion of the Depositaryprincipal of the Security so surrendered.
(g) All Securities delivered for repurchase shall be delivered to the Trustee to be canceled at the direction of the Trustee, which shall dispose of the same as provided in Section 2.15.
Appears in 1 contract
Samples: Indenture (Foster Wheeler LTD)
Notices; Method of Exercising Repurchase Right, Etc. (a) Unless the Company shall have theretofore called for redemption all of the outstanding Outstanding Securities, on or before the 30th day after the occurrence of a Fundamental Change, the Company or, at the request and expense of the Company, the Trustee, shall give to the Trustee, the Paying Agent and all Holders of Securities, in the manner provided in this Section 3.41.06, a notice containing the information required pursuant to the following provisions of this Section 3.4(a) (the "Company Notice") (i) on or before the 20th Business Day prior to the Repurchase Date or, in the event of a Fundamental Change arising from a Change of Control, the anticipated Effective Date (but in no event earlier than 45 days prior to the Repurchase Date or anticipated Effective Date, as the case may be), and (ii) within 15 Business Days after the Company knows or reasonably should know of the occurrence of a the Fundamental Change that arises and of the repurchase right set forth herein arising as a result of any Termination of Trading. Prior to or concurrently with the delivery of any Company Notice, the Company will issue a press release or publish such information on the Company's then existing website including the information required to be included in such Company Notice hereunderthereof. The Company shall also deliver a copy of any Company Notice such notice of a repurchase right to the Trustee. At the request and expense Each notice of the Company on or before the fifth Business Day prior to the date on which the Company Notice is to be mailed, the Trustee shall provide the Company Notice to the Holders in accordance with the provisions of this Indenture. Each Company Notice a repurchase right shall state:
(i) the Repurchase Date or the Fundamental Change Repurchase Redemption Date, as the case may be,
(ii) the date by which the repurchase right must be exercised,
(iii) the Repurchase Price or the Fundamental Change Repurchase Redemption Price, as the case may be, and whether the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, shall be paid by the Company in cash or by delivery of shares of Common Stock, or a specified combination thereof and the percentage of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, that will be paid in shares of Common Stock (which indication shall be irrevocable, subject to the satisfaction (or waiver) of the conditions set forth in Section 3.3),
(iv) if the notice relates to the occurrence of a Fundamental Change, the events causing the Fundamental Change and the date of the Fundamental Change,
(v) that Securities with respect to which a Holder gives a Repurchase Notice or Fundamental Change Repurchase Notice may be converted only if the Holder withdraws the Repurchase Notice or Fundamental Change Repurchase Notice as to such Securities in accordance with the terms of this Indenture,
(vi) a description of the procedure that which a Holder must follow to exercise a repurchase right, and the place or places where such Securities maturing after the Fundamental Change Redemption Date, are to be surrendered for payment of the Repurchase Fundamental Change Redemption Price or and accrued interest, if any,
(v) that on the Fundamental Change Repurchase PriceRedemption Date, as the case may be, Fundamental Change Redemption Price and accrued but unpaid interest (and Liquidated Damages)interest, if any, will become due and payable to, but excluding, the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be,
(vii) that on the Repurchase Redemption Date or the Fundamental Change Repurchase Date, as the case may be, the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, and accrued but unpaid interest (and Liquidated Damages), if any, to, but excluding, the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be, will become due and payable upon each such Security designated by the Holder to be repurchased, and that interest thereon shall cease to accrue on and after said date,, and
(viiivi) the Conversion Price then in effect,
(ix) , the date on which the right to convert the principal amount of the Securities to be repurchased will terminate and the place or places that the Security certificate (including the Election of Holder to Require Repurchase attached thereto) and the Repurchase Notice (as defined below) shall be delivered, and, if the Security is a Restricted Security, the place or places that the Transfer Certificate in the form set forth in Exhibit C, required by Section 2.12 shall be delivered,
(x) the name and address of the Paying Agent and Conversion Agent, and
(xi) if the notice relates to a Fundamental Change, the estimated amount of any Make-Whole Premium and the respective percentages of such Make-Whole Premium that will be paid (as contemplated by Section 6.1(b)) in shares of Common Stock and in cash (which indication shall be irrevocable), subject to the satisfaction (or waiver) of the conditions set forth in Section 6.1(c), in the event that a Holder should, in lieu of electing to have Securities repurchased on the Fundamental Change Repurchase Date, elect to convert where such Securities during the Fundamental Change Conversion Period, and
(xii) any other information to may be included therein pursuant to Section 6.1surrendered for conversion. No failure of the Company to give the foregoing notices or defect therein shall limit any Holder's right to exercise a repurchase right or affect the validity of the proceedings for the repurchase of Securities. If any of the foregoing provisions or other provisions of this Article III are inconsistent with applicable law, such law shall govern.
(b) To exercise a repurchase right pursuant to Section 3.1 or Section 3.2right, a Holder shall deliver to the Trustee or any Paying Agent (i) written notice (in on or before the case of a repurchase pursuant to Section 3.1, a "Repurchase Notice" and, in 30th day after the case of a repurchase pursuant to Section 3.2, a "Fundamental Change Repurchase Notice") date of the Holder's exercise of Company Notice (or if such right, which notice shall set forth the name of the Holder30th day is not a Business Day, the principal amount of immediately preceding Business Day) the Securities Security to be repurchased (andwith the form entitled "Option to Elect Redemption Upon a Fundamental Change" on the reverse thereof duly completed, if any together with such Security is to repurchased in partduly endorsed for transfer. Such written notice shall be irrevocable, except that the portion right of the principal amount thereof Holder to be repurchased (which portion must be in principal amounts of $1,000 or a whole multiple of $1,000) and the name of the Person in which the portion thereof to remain outstanding after such repurchase is to be registered), if certificated, the certificate numbers of convert the Securities with respect to be repurchased, and a statement that an election to exercise which the repurchase right pursuant to the terms and conditions specified in the Securities and the Indenture is being made thereby, and, in the event that any portion of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, exercised shall be paid in shares of Common Stock, the name or names (with addresses) in which the certificate or certificates for shares of Common Stock shall be issued, and (ii) the Securities to which the Repurchase Notice or Fundamental Change Repurchase Notice relates at any time after delivery of the Repurchase Notice or the Fundamental Change Repurchase Notice, as the case may be (together with all necessary endorsements), at the offices of the Paying Agent, such delivery being a condition to receipt by the Holder of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, thereof; provided, however, that such Repurchase Price or Fundamental Change Repurchase Price, as the case may be, shall be so paid pursuant to this Section 3.4(b) only if the Securities so delivered to the Paying Agent shall conform in all respects to the description thereof in the related Repurchase Notice or Fundamental Change Repurchase Notice. In the case of a repurchase right pursuant to Section 3.1 and Section 3.2, such delivery shall be at any time from the opening of business on the date that is 20 Business Days prior to the Repurchase Date continue until the close of business on the second Business Day prior to the Repurchase Date Fundamental Change Redemption Date.
(c) In the event a repurchase right shall be exercised in accordance with the terms hereof, the Company shall pay or cause to be paid to the Trustee or the Paying Agent the Fundamental Change Repurchase Redemption Price in cash, as provided above, for payment to the Holder on the Fundamental Change Redemption Date together with accrued and unpaid interest to the Fundamental Change Redemption Date payable with respect to the Securities as to which their purchase right has been exercised; provided, however, that installments of interest that mature on or prior to the Fundamental Change Redemption Date shall be payable in cash, in the case of Securities, to the Holders of such Securities, or one or more Predecessor Securities, registered as such at the close of business on the relevant Regular Record Date.
(d) If any Security (or portion thereof) surrendered for repurchase shall not be so paid on the Fundamental Change Redemption Date, the principal amount of such Security (or portion thereof, as the case may be) shall, subject until paid, bear interest to extension the extent permitted by applicable law from the Fundamental Change Redemption Date at the rate of ____% per annum, and each Security shall remain convertible into Common Stock until the principal of such Security (or portion thereof, as the case may be) shall have been paid or duly provided for.
(e) Any Security which is to be repurchased only in part shall be surrendered to the Trustee (with, if the Company or the Trustee so requires, due endorsement by, or a written instrument of transfer in form satisfactory to the Company and the Trustee duly executed by, the Holder thereof or his attorney duly authorized in writing), and the Company shall execute, and the Trustee shall authenticate and make available for delivery to the Holder of such Security without service charge, a new Security or Securities, containing identical terms and conditions, each in an authorized denomination in aggregate principal amount equal to and in exchange for the unrepurchased portion of the principal of the Security so surrendered.
(f) All securities delivered for repurchase shall be delivered to the Trustee, the Paying Agent or any other agents (as shall be set forth in the Company Notice) to be canceled by or at the direction of the Trustee, which shall dispose of the same as provided in Section 3.09.
(g) The Company will comply with the provisions of Rule 13e-4 and any other tender offer rules under the Exchange Act to the extent then applicable law. Owners of beneficial interests in Global Securities shall provide a Repurchase Notice or Fundamental Change Repurchase Notice in accordance connection with the Applicable Procedures redemption rights of Holders in the Depositaryevent of a Fundamental Change.
Appears in 1 contract
Samples: Indenture (Ventro Corp)
Notices; Method of Exercising Repurchase Right, Etc. (a) Unless the Company shall have theretofore called for redemption all of the outstanding SecuritiesOutstanding Securities or unless all of the Outstanding Securities shall have theretofore been converted in accordance with Article Thirteen, the Company shall give to the Trustee, the Paying Agent and all Holders of Securities, in the manner provided in this Section 3.4, a notice containing the information required pursuant to the following provisions of this Section 3.4(a) (the "Company Notice") (i) on or before the 20th Business Day prior to 30th day after the Repurchase Date or, in the event occurrence of a Fundamental Change arising from a Change of Control, the anticipated Effective Date (but in no event earlier than 45 days prior to the Repurchase Date or anticipated Effective DateCompany or, as the case may be), and (ii) within 15 Business Days after the Company knows or reasonably should know of the occurrence of a Fundamental Change that arises as a result of any Termination of Trading. Prior to or concurrently with the delivery of any Company Notice, the Company will issue a press release or publish such information on the Company's then existing website including the information required to be included in such Company Notice hereunder. The Company shall also deliver a copy of any Company Notice to the Trustee. At at the request and expense of the Company on or before the fifth Business Day prior 15th day after such occurrence, the Trustee, shall give to all Holders, in the manner provided in Section 106, notice (the "Company Notice") of the occurrence of the Change of Control and of the repurchase right set forth herein arising as a result thereof. The Company shall also deliver a copy of such notice of a repurchase right to the date on which the Company Notice is to be mailed, the Trustee shall provide the Company Notice to the Holders in accordance with the provisions of this IndentureTrustee. Each Company Notice notice of a repurchase right shall state:
: (i1) the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be,
(ii2) the date by which the repurchase right must be exercised,
, (iii3) the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, and whether the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, shall be paid by the Company in cash or by delivery of shares of Common Stock, or a specified combination thereof and the percentage of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, that will be paid in shares of Common Stock (which indication shall be irrevocable, subject to the satisfaction (or waiver) of the conditions set forth in Section 3.3),
(iv) if the notice relates to the occurrence of a Fundamental Change, the events causing the Fundamental Change and the date of the Fundamental Change,
(v) that Securities with respect to which a Holder gives a Repurchase Notice or Fundamental Change Repurchase Notice may be converted only if the Holder withdraws the Repurchase Notice or Fundamental Change Repurchase Notice as to such Securities in accordance with the terms of this Indenture,
(vi4) a description of the procedure that which a Holder must follow to exercise a repurchase right, and the place or places where such Securities are to be surrendered for payment of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, and accrued but unpaid interest (and Liquidated Damages)interest, if any, to, but excluding, the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be,
(vii5) that on the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be, the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, and including accrued but unpaid interest (and Liquidated Damages)interest, if any, to, but excluding, the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be, will become due and payable upon each such Security designated by the Holder to be repurchased, and that interest thereon shall cease to accrue on and after said date,
, (viii6) the Conversion Price Rate then in effect,
, the date on which the right to convert the principal amount of the Securities to be repurchased will terminate and the place or places where such Securities may be surrendered for conversion, and (ix7) the place or places that the Security form of certificate (including the Election of Holder to Require Repurchase attached thereto) and the Repurchase Notice (as defined below) required by Section 203 shall be delivered, and, if the Security is a Restricted Security, the place or places that the Transfer Certificate in and the form set forth in Exhibit C, required by Section 2.12 shall be delivered,
(x) the name and address of the Paying Agent and Conversion Agent, and
(xi) if the notice relates to a Fundamental Change, the estimated amount of any Make-Whole Premium and the respective percentages of such Make-Whole Premium that will be paid (as contemplated by Section 6.1(b)) in shares of Common Stock and in cash (which indication shall be irrevocable), subject to the satisfaction (or waiver) of the conditions set forth in Section 6.1(c), in the event that a Holder should, in lieu of electing to have Securities repurchased on the Fundamental Change Repurchase Date, elect to convert such Securities during the Fundamental Change Conversion Period, and
(xii) any other information to be included therein pursuant to Section 6.1certificate. No failure of the Company to give the foregoing notices or defect therein shall limit any Holder's right to exercise a repurchase right or affect the validity of the proceedings for the repurchase of Securities. If any of the foregoing provisions or other provisions of this Article III Fourteen are inconsistent with applicable law, such law shall govern.
(b) To exercise a repurchase right pursuant to Section 3.1 or Section 3.2, a Holder shall deliver to the Paying Agent (i) written notice (in the case of a repurchase pursuant to Section 3.1, a "Repurchase Notice" and, in the case of a repurchase pursuant to Section 3.2, a "Fundamental Change Repurchase Notice") of the Holder's exercise of such right, which notice shall set forth the name of the Holder, the principal amount of the Securities to be repurchased (and, if any Security is to repurchased in part, the portion of the principal amount thereof to be repurchased (which portion must be in principal amounts of $1,000 or a whole multiple of $1,000) and the name of the Person in which the portion thereof to remain outstanding after such repurchase is to be registered), if certificated, the certificate numbers of the Securities to be repurchased, and a statement that an election to exercise the repurchase right pursuant to the terms and conditions specified in the Securities and the Indenture is being made thereby, and, in the event that any portion of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, shall be paid in shares of Common Stock, the name or names (with addresses) in which the certificate or certificates for shares of Common Stock shall be issued, and (ii) the Securities to which the Repurchase Notice or Fundamental Change Repurchase Notice relates at any time after delivery of the Repurchase Notice or the Fundamental Change Repurchase Notice, as the case may be (together with all necessary endorsements), at the offices of the Paying Agent, such delivery being a condition to receipt by the Holder of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, thereof; provided, however, that such Repurchase Price or Fundamental Change Repurchase Price, as the case may be, shall be so paid pursuant to this Section 3.4(b) only if the Securities so delivered to the Paying Agent shall conform in all respects to the description thereof in the related Repurchase Notice or Fundamental Change Repurchase Notice. In the case of a repurchase right pursuant to Section 3.1 and Section 3.2, such delivery shall be at any time from the opening of business on the date that is 20 Business Days prior to the Repurchase Date until the close of business on the second Business Day prior to the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be, subject to extension to comply with applicable law. Owners of beneficial interests in Global Securities shall provide a Repurchase Notice or Fundamental Change Repurchase Notice in accordance with the Applicable Procedures of the Depositary.
Appears in 1 contract
Notices; Method of Exercising Repurchase Right, Etc. (a) Unless the Company shall have theretofore called for redemption all of the outstanding Securities, the Company shall give to the Trustee, the Paying Agent and all Holders of Securities, in the manner provided in this Section 3.4, a notice containing the information required pursuant to the following provisions of this Section 3.4(a) (the "Company Notice") (i) on or before the 20th Business Day prior to the Repurchase Date or, in the event of a Fundamental Change arising from a Change of Control, the anticipated Effective Date (but in no event earlier than 45 days prior to the Repurchase Date or anticipated Effective Date, as the case may be), and (ii) within 15 Business Days after the Company knows or reasonably should know of the occurrence of a Fundamental Change that arises as a result of any Termination of Trading. Prior to or concurrently with the delivery of any Company Notice, the Company will issue a press release or publish such information on the Company's then existing website including the information required to be included in such Company Notice hereunder. The Company shall also deliver a copy of any Company Notice to the Trustee. At the request and expense of the Company on or before the fifth Business Day prior to the date on which the Company Notice is to be mailed, the Trustee shall provide give the Company Notice to the Holders in accordance with the provisions of this IndentureHolders. Each Company Notice shall state:
(i) the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be,
(ii) the date by which the repurchase right must be exercised,
(iii) the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, and whether the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, shall be paid by the Company in cash or by delivery of shares of Common Stock, or a specified combination thereof and the percentage of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, stated in a total principal amount as if all of the Securities then outstanding shall be redeemed on the applicable Repurchase Date or the applicable Fundamental Change Repurchase Date, as the case may be, that will be paid in shares of Common Stock (which indication shall be irrevocable, subject to the satisfaction (or waiver) of the conditions set forth in Section 3.3),
(iv) if the notice relates to the occurrence of a Fundamental Change, the events causing the Fundamental Change and Change, the date of the Fundamental Change,
(v) Change and that the Securities with respect to which a Holder gives a Repurchase Notice or with respect to a Fundamental Change (a "Fundamental Change Repurchase Notice Notice") may be converted only if the Holder withdraws the Repurchase Notice or Fundamental Change Repurchase Notice as to such converted Securities in accordance with the terms of this Indenture,
(viv) a description of the procedure that a Holder must follow to exercise a repurchase right, and the place or places where such Securities are to be surrendered for payment of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, and accrued but unpaid interest (and Liquidated Damages), if any, to, but excluding, the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be,
(viivi) that on the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be, the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, and accrued but unpaid interest (and Liquidated Damages), if any, to, but excluding, the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be, will become due and payable upon each such Security designated by the Holder to be repurchased, and that interest thereon shall cease to accrue on and after said date,
(viiivii) the Conversion Price then in effect,
(ixviii) the place or places that the Security certificate (including the Election of Holder to Require Repurchase attached thereto) and the Repurchase Notice (as defined below) shall be delivered, and, if the Security is a Restricted Security, the place or places that the Transfer Certificate in the form set forth in Exhibit C, required by Section 2.12 shall be delivered,
(xix) the name and address of the Paying Agent and Conversion Agent, and
(xix) if the notice relates to a Fundamental Change, the estimated amount of any Make-Whole Premium and the respective percentages of such any Make-Whole Premium that will be paid (as contemplated by Section 6.1(b)) in shares of Common Stock and in cash (which indication shall be irrevocable), subject to the satisfaction (or waiver) of the conditions set forth in Section 6.1(c)), in the event that a Holder should, in lieu of electing to have Securities repurchased on the Fundamental Change Repurchase Date, elect to convert such Securities during the Fundamental Change Conversion Period, and
(xiixi) any other information to be included therein pursuant to Section 6.1. No failure of the Company to give the foregoing notices or defect therein shall limit any Holder's right to exercise a repurchase right or affect the validity of the proceedings for the repurchase of Securities. If any of the foregoing provisions or other provisions of this Article III are inconsistent with applicable law, such law shall govern.
(b) To exercise a repurchase right pursuant to Section 3.1 or Section 3.2, a Holder shall deliver to the Paying Agent (i) written notice (in the case of a repurchase pursuant to Section 3.1, a "Repurchase Notice" and, in the case of a repurchase pursuant to Section 3.2, a "Fundamental Change Repurchase Notice") of the Holder's exercise of such right, which notice shall set forth the name of the Holder, the principal amount of the Securities to be repurchased (and, if any Security is to repurchased in part, the serial number thereof, the portion of the principal amount thereof to be repurchased (which portion must be in principal amounts of $1,000 or a whole multiple of $1,000) and the name of the Person in which the portion thereof to remain outstanding after such repurchase is to be registered), if certificatedcertified, the certificate numbers of the Securities to be repurchased, and a statement that an election to exercise the repurchase right pursuant to the terms and conditions specified in the Securities and the Indenture is being made thereby, and, in the event that any portion of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, shall be paid in shares of Common Stock, the name or names (with addresses) in which the certificate or certificates for shares of Common Stock shall be issued, and (ii) book-entry transfer or delivery of such Security to the Securities to which the Repurchase Notice or Fundamental Change Repurchase Notice relates Paying Agent at any time after delivery of the Repurchase Notice or the Fundamental Change Repurchase Notice, as the case may be (together with all necessary endorsements), ) at the offices of the Paying Agent, such delivery being a condition to receipt by the Holder of the Repurchase Price therefor or the Fundamental Change Repurchase PricePrice therefor, as the case may be, thereof; provided, however, that such Repurchase Price or Fundamental Change Repurchase Price, as the case may be, shall be so paid pursuant to this Section 3.4(b) only if the Securities Security so delivered to the Paying Agent shall conform in all respects to the description thereof in the related Repurchase Notice or Fundamental Change Repurchase Notice. In the case of a repurchase right pursuant to Section 3.1 and Section 3.2, such delivery shall be at any time from the opening of business on the date that is 20 Business Days prior to the Repurchase Date until the close of business on the second Business Day prior to the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be, subject to extension to comply with applicable law. Owners A repurchase notice given by a Holder in accordance with this Section 3.4(b) may be withdrawn, in whole or in part, by means of beneficial interests a written notice of withdrawal delivered to the office of the Paying Agent at any time prior to the close of business on the day that is one Business Day before the Repurchase Date or Fundamental Change Repurchase Date, as the case may be, specifying:
(i) the certificate number, if any, of the Security in Global respect of which such notice of withdrawal is being submitted, or the appropriate Depositary procedures if Certificated Securities have not been issued,
(ii) the principal amount of the Security with respect to which such notice of withdrawal is being submitted, and
(iii) the principal amount, if any, of such Security which remains subject to the original Repurchase Notice and which has been or will be delivered for purchase by the Company. The Company may, in its sole and complete discretion, accept a written notice of withdrawal on or after the close of business on the day that is one Business Day prior to the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be. The decision of the Company to accept or reject such a withdrawal notice shall provide be conclusive and binding on the Holder proposing to make the withdrawal.
(c) There shall be no purchase of any Securities pursuant to this Article III if an Event of Default has occurred and is continuing (other than a default that is cured by the payment of the Repurchase Price or Fundamental Change Repurchase Price, as the case may be). The Paying Agent shall promptly return to the respective Holders thereof any Securities (i) with respect to which a Repurchase Notice or Fundamental Change Repurchase Notice, as the case may be, has been withdrawn in compliance with this Indenture or (ii) held by it during the continuance of an Event of Default (other than a default that is cured by the payment of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be) in which case, upon such return, the Repurchase Notice or the Fundamental Change Repurchase Notice with respect thereto shall be deemed to have been withdrawn.
(d) In the event a repurchase right shall be exercised in accordance with the Applicable Procedures terms hereof, the Company shall pay or cause to be paid to the Trustee the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, in cash and/or shares of Common Stock, subject to and as provided in Section 3.3 and subject to the Share Limitation, for payment to the Holder on the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be, together with accrued and unpaid interest to, but excluding, the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be, payable with respect to the Securities as to which the repurchase right has been exercised.
(e) If any Security (or portion thereof) surrendered for repurchase shall not be so paid on the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be, the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be with respect to such Security shall, until so repurchased, bear interest to the extent permitted by applicable law from the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be, at a rate equal to the Interest Rate on the Security plus 1% per annum, and such Security shall remain convertible into Common Stock until the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, plus any default interest accrued under this Section 3.4(e), shall have been paid or duly provided for.
(f) Any Security that is to be repurchased only in part shall be surrendered to the Trustee (with, if the Company or the Trustee so requires, due endorsement by, or a written instrument of transfer in form satisfactory to the Company and the Trustee duly executed by, the Holder thereof or his attorney duly authorized in writing), and the Company shall execute, and the Trustee shall authenticate and make available for delivery to the Holder of such Security without service charge, a new Security or Securities, containing identical terms and conditions, each in an authorized denomination in aggregate principal amount equal to and in exchange for the unrepurchased portion of the Depositaryprincipal of the Security so surrendered.
(g) Any issuance of shares of Common Stock in respect of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, shall be deemed to have been effected immediately prior to the close of business on the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be, and the Person or Persons in whose name or names any certificate or certificates for shares of Common Stock shall be issuable upon such repurchase shall be deemed to have become on the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be, the holder or holders of record of the shares represented thereby; provided, however, that any surrender for repurchase on a date when the stock transfer books of the Company shall be closed shall constitute the Person or Persons in whose name or names the certificate or certificates for such shares are to be issued as the record holder or holders thereof for all purposes at the opening of business on the next succeeding day on which such stock transfer books are open. No payment or adjustment shall be made for dividends or distributions on any Common Stock issued upon repurchase of any Security declared prior to the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be.
(h) No fractional shares shall be issued upon repurchase of Securities. If more than one Security shall be repurchased from the same Holder and the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, shall be payable in shares of Common Stock, then the number of full shares that shall be issuable upon such repurchase shall be computed on the basis of the aggregate principal amount of the Securities so repurchased. Instead of any fractional share of Common Stock that would otherwise be issuable on the repurchase of any Security or Securities, the Company will deliver to the applicable Holder its check for the current market value of such fractional share. The current market value of a fraction of a share is determined by multiplying the current market price of a full share by the fraction, and rounding the result to the nearest cent. For purposes of this Section 3.4(h), the current market price of a share of Common Stock is the Closing Price Per Share on the most recent Trading Day immediately preceding the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be.
(i) Any issuance and delivery of certificates for shares of Common Stock on repurchase of Securities shall be made without charge to the Holder of Securities being repurchased for such certificates or for any tax or duty in respect of the issuance or delivery of such certificates or the securities represented thereby; provided, however, that the Company shall not be required to pay any tax or duty that may be payable in respect of (1) income of the Holder or (2) any transfer involved in the issuance or delivery of certificates for shares of Common Stock in a name other than that of the Holder of the Securities being repurchased, and no such issuance or delivery shall be made unless and until the Person requesting such issuance or delivery has paid to the Company the amount of any such tax or duty or has established, to the satisfaction of the Company, that such tax or duty has been paid.
(j) If shares of Common Stock to be delivered upon repurchase of a Restricted Security are to be registered in a name other than that of the "beneficial owner" of such Security (determined in accordance with Rule 13d-3, as in effect on the date of the original execution of this Indenture, promulgated by the SEC pursuant to the Exchange Act), then such Holder must deliver to the Trustee a Transfer Certificate in the form set forth in Exhibit C, dated the date of surrender of such Restricted Security and signed by such beneficial owner, as to compliance with the restrictions on transfer applicable to such Restricted Security. Neither the Trustee nor any Registrar or Transfer Agent or other agents shall be required to register in a name other than that of the beneficial owner shares of Common Stock issued upon repurchase of any such Restricted Security not so accompanied by a properly completed Transfer Certificate.
(k) All Securities delivered for repurchase shall be delivered to the Trustee to be canceled at the direction of the Trustee.
Appears in 1 contract
Samples: Purchase Agreement (Integrated Electrical Services Inc)
Notices; Method of Exercising Repurchase Right, Etc. (a) Unless the Company shall have theretofore called for redemption all of the outstanding Outstanding Securities, the Company shall give to the Trustee, the Paying Agent and all Holders of Securities, in the manner provided in this Section 3.4, a notice containing the information required pursuant to the following provisions of this Section 3.4(a) (the "Company Notice") (i) on or before the 20th Business Day prior to the Repurchase Date or, in the event of a Fundamental Change arising from a Change of Control, the anticipated Effective Date (but in no event earlier than 45 days prior to the Repurchase Date or anticipated Effective Date, as the case may be), and (ii) within 15 Business Days 30th day after the Company knows or reasonably should know of the occurrence of a Fundamental Change that arises as a result of any Termination of Trading. Prior to or concurrently with the delivery of any Company Noticein Control, the Company will issue a press release or publish such information on the Company's then existing website including the information required to be included in such Company Notice hereunder. The Company shall also deliver a copy of any Company Notice to the Trustee. At or, at the request and expense of the Company on or before the fifth Business Day prior 30th day after such occurrence, the Trustee, shall give to all Holders of Securities, in the manner provided in Section 1.6, notice ----------- (the "Company Notice") of the occurrence of the Change of Control and of the repurchase right set forth herein arising as a result thereof. The Company shall also deliver a copy of such notice of a repurchase right to the date on which the Company Notice is to be mailed, the Trustee shall provide the Company Notice to the Holders in accordance with the provisions of this IndentureTrustee. Each Company Notice notice of a repurchase right shall state:
(i1) the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be,
(ii2) the date by which the repurchase right must be exercised,
(iii3) the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, and whether the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, shall be paid by the Company in cash or by delivery of shares of Common Stock, or a specified combination thereof and the percentage of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, that will be paid in shares of Common Stock (which indication shall be irrevocable, subject to the satisfaction (or waiver) of the conditions set forth in Section 3.3),
(iv) if the notice relates to the occurrence of a Fundamental Change, the events causing the Fundamental Change and the date of the Fundamental Change,
(v) that Securities with respect to which a Holder gives a Repurchase Notice or Fundamental Change Repurchase Notice may be converted only if the Holder withdraws the Repurchase Notice or Fundamental Change Repurchase Notice as to such Securities in accordance with the terms of this Indenture,
(vi4) a description of the procedure that which a Holder must follow to exercise a repurchase right, and the place or places where such Securities Securities, are to be surrendered for payment of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, and accrued but unpaid interest (and Liquidated Damages)interest, if any, to, but excluding, the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be,
(vii5) that on the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be, the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, and accrued but unpaid interest (and Liquidated Damages)interest, if any, to, but excluding, the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be, will become due and payable upon each such Security designated by the Holder to be repurchased, and that interest thereon shall cease to accrue on and after said date,
(viii6) the Conversion Price Rate then in effect, the date on which the right to convert the principal amount of the Securities to be repurchased will terminate and the place or places where such Securities may be surrendered for conversion,
(ix7) the place or places that the Security certificate (including the Notice of Election of Holder to Require Repurchase attached thereto) and the Repurchase Notice (as defined below) provided in Section 2.2, shall be delivered, and, if and the Security is a Restricted Security, the place or places that the Transfer Certificate in the ----------- form set forth in Exhibit C, required by Section 2.12 shall be delivered,
(x) the name and address of the Paying Agent and Conversion Agentsuch notice, and
(xi) if 8) the notice relates to a Fundamental Change, the estimated amount of any Make-Whole Premium and the respective percentages Cusip number or numbers of such Make-Whole Premium that will be paid (as contemplated by Section 6.1(b)) in shares of Common Stock and in cash (which indication shall be irrevocable), subject to the satisfaction (or waiver) of the conditions set forth in Section 6.1(c), in the event that a Holder should, in lieu of electing to have Securities repurchased on the Fundamental Change Repurchase Date, elect to convert such Securities during the Fundamental Change Conversion Period, and
(xii) any other information to be included therein pursuant to Section 6.1Securities. No failure of the Company to give the foregoing notices or defect therein shall limit any Holder's right to exercise a repurchase right or affect the validity of the proceedings for the repurchase of Securities. If any of the foregoing provisions or other provisions of this Article III are inconsistent with applicable law, such law shall govern.
(b) To exercise a repurchase right pursuant to Section 3.1 or Section 3.2right, a Holder shall deliver to the Paying Agent Trustee on or before the 30th day after the date of the Company Notice (i) written notice (in the case of a repurchase pursuant to Section 3.1, a "Repurchase Notice" and, in the case of a repurchase pursuant to Section 3.2, a "Fundamental Change Repurchase Notice") of the Holder's exercise of such right, which notice shall set forth the name of the Holder, the principal amount of the Securities to be repurchased (and, if any Security is to repurchased in part, the serial number thereof, the portion of the principal amount thereof to be repurchased (which portion must be in principal amounts of $1,000 or a whole multiple of $1,000) and the name of the Person in which the portion thereof to remain outstanding Outstanding after such repurchase is to be registered), if certificated, the certificate numbers of the Securities to be repurchased, ) and a statement that an election to exercise the repurchase right pursuant to the terms and conditions specified in the Securities and the Indenture is being made thereby, and, in the event that any portion of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, shall be paid in shares of Common Stock, the name or names (with addresses) in which the certificate or certificates for shares of Common Stock shall be issued, and (ii) the Securities with respect to which the Repurchase Notice or Fundamental Change Repurchase Notice relates at any time after delivery repurchase right is being exercised. Such written notice shall be irrevocable, except that the right of the Repurchase Notice or the Fundamental Change Repurchase Notice, as the case may be (together with all necessary endorsements), at the offices of the Paying Agent, such delivery being a condition Holder to receipt by the Holder of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, thereof; provided, however, that such Repurchase Price or Fundamental Change Repurchase Price, as the case may be, shall be so paid pursuant to this Section 3.4(b) only if convert the Securities so delivered with respect to which the Paying Agent shall conform in all respects to the description thereof in the related Repurchase Notice or Fundamental Change Repurchase Notice. In the case of a repurchase right pursuant to Section 3.1 and Section 3.2, such delivery is being exercised shall be at any time from the opening of business on the date that is 20 Business Days prior to the Repurchase Date continue until the close of business on the second Business Day Repurchase Date.
(c) In the event a repurchase right shall be exercised in accordance with the terms hereof, the Company shall pay or cause to be paid to the Trustee the Repurchase Price in cash or shares of Common Stock, as provided above, for payment to the Holder on the Repurchase Date or, if shares of Common Stock are to be paid, as promptly after the Repurchase Date as practicable, together with accrued and unpaid interest to the Repurchase Date payable with respect to the Securities as to which the purchase right has been exercised; provided, however, -------- ------- that installments of interest that mature on or prior to the Repurchase Date shall be payable in cash to the Holders of such Securities, or one or more Predecessor Securities, registered as such at the Fundamental Change close of business on the relevant Regular Record Date.
(d) If any Security (or portion thereof) surrendered for repurchase shall not be so paid on the Repurchase Date, the principal amount of such Security (or portion thereof, as the case may be) shall, subject until paid, bear interest to extension the extent permitted by applicable law from the Repurchase Date at the rate of 5 1/2% per annum, and each Security shall remain convertible into Common Stock until the principal of such Security (or portion thereof, as the case may be) shall have been paid or duly provided for.
(e) Any Security which is to comply with be repurchased only in part shall be surrendered to the Trustee (with, if the Company or the Trustee so requires, due endorsement by, or a written instrument of transfer in form satisfactory to the Company and the Trustee duly executed by, the Holder thereof or his attorney duly authorized in writing), and the Company shall execute, and the Trustee shall authenticate and make available for delivery to the Holder of such Security without service charge, a new Security or Securities, containing identical terms and conditions, each in an authorized denomination in aggregate principal amount equal to and in exchange for the unrepurchased portion of the principal of the Security so surrendered.
(f) Any issuance of shares of Common Stock in respect of the Repurchase Price shall be deemed to have been effected immediately prior to the close of business on the Repurchase Date and the Person or Persons in whose name or names any certificate or certificates for shares of Common Stock shall be issuable upon such repurchase shall be deemed to have become on the Repurchase Date the holder or holders of record of the shares represented thereby; provided, however, that any surrender for repurchase on a date when the stock -------- ------- transfer books of the Company shall be closed shall constitute the Person or Persons in whose name or names the certificate or certificates for such shares are to be issued as the record holder or holders thereof for all purposes at the opening of business on the next succeeding day on which such stock transfer books are open. No payment or adjustment shall be made for dividends or distributions on any Common Stock issued upon repurchase of any Security declared prior to the Repurchase Date.
(g) No fractions of shares shall be issued upon repurchase of Securities. If more than one Security shall be repurchased from the same Holder and the Repurchase Price shall be payable in shares of Common Stock, the number of full shares which shall be issuable upon such repurchase shall be computed on the basis of the aggregate principal amount of the Securities so repurchased. Instead of any fractional share of Common Stock which would otherwise be issuable on the repurchase of any Security or Securities, the Company will deliver to the applicable lawHolder its check for the current market value of such fractional share. Owners The current market value of beneficial interests in Global a fraction of a share is determined by multiplying the current market price of a full share by the fraction, and rounding the result to the nearest cent. For purposes of this Section, the current market price of a share of Common Stock is the Closing Price Per Share of the Common Stock on the Trading Day immediately preceding the Repurchase Date.
(h) Any issuance and delivery of certificates for shares of Common Stock on repurchase of Securities shall provide a Repurchase Notice be made without charge to the Holder of Securities being repurchased for such certificates or Fundamental Change Repurchase Notice for any tax or duty in accordance with the Applicable Procedures respect of the Depositaryissuance or delivery of such certificates or the securities represented thereby; provided, however, that the Company shall not be required -------- ------- to pay any tax or duty which may be payable in respect of (i) income of the Holder or (ii) any transfer involved in the issuance or delivery of certificates for shares of Common Stock in a name other than that of the Holder of the Securities being repurchased, and no such issuance or delivery shall be made unless and until the Person requesting such issuance or delivery has paid to the Company the amount of any such tax or duty or has established, to the satisfaction of the Company, that such tax or duty has been paid.
(i) All Securities delivered for repurchase shall be delivered to the Trustee to be canceled at the direction of the Trustee, which shall dispose of the same as provided in Section 3.9. -----------
Appears in 1 contract
Samples: Indenture (Siebel Systems Inc)
Notices; Method of Exercising Repurchase Right, Etc. (a1) Unless the Company shall have theretofore called for redemption all of the outstanding Outstanding Securities, on or before the 30th day after the occurrence of a Fundamental Change, the Company or, at the request in a Company Order and expense of the Company on or before the 15th day after such occurrence, the Trustee, shall give to the Trustee, the Paying Agent and all Holders of Securities, in the manner provided in this Section 3.41.6, a notice containing the information required pursuant to the following provisions of this Section 3.4(a) (the "Company Notice") (i) on or before the 20th Business Day prior to the Repurchase Date or, in the event of a Fundamental Change arising from a Change of Control, the anticipated Effective Date (but in no event earlier than 45 days prior to the Repurchase Date or anticipated Effective Date, as the case may be), and (ii) within 15 Business Days after the Company knows or reasonably should know of the occurrence of a the Fundamental Change that arises and of the repurchase right set forth herein arising as a result of any Termination of Trading. Prior to or concurrently with the delivery of any Company Notice, the Company will issue a press release or publish such information on the Company's then existing website including the information required to be included in such Company Notice hereunderthereof. The Company shall also deliver a copy of any such Company Notice to the Trustee. At If such notice is to be given by the request and expense of Trustee, the Company shall deliver, on or before the fifth Business Day prior day after such occurrence, a Company Order requesting the Trustee to give such notice and setting forth all the date on which the Company Notice is information to be mailed, included in such notice including the Trustee shall provide the Company Notice to the Holders in accordance with the provisions of this Indentureinformation set forth below. Each Company Notice shall state:
(i) the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be,
(ii) the date by which the repurchase right must be exercised,
(iii) the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, and whether the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, shall be paid by the Company in cash or by delivery of shares of Common Stock, or a specified combination thereof and the percentage of the Repurchase Price or the Fundamental Change Repurchase PriceMake Whole Premium, as the case may be, that will be paid in shares of Common Stock (which indication shall be irrevocable, subject to the satisfaction (or waiver) of the conditions set forth in Section 3.3)if applicable,
(iv) if the notice relates to the occurrence of a Fundamental Change, the events causing the Fundamental Change and the date of the Fundamental Change,
(v) that Securities with respect to which a Holder gives a Repurchase Notice or Fundamental Change Repurchase Notice may be converted only if the Holder withdraws the Repurchase Notice or Fundamental Change Repurchase Notice as to such Securities in accordance with the terms of this Indenture,
(vi) a description of the procedure that a Holder must follow to exercise a repurchase right, and the place or places where such Securities are to be surrendered for payment of the Repurchase Price or and accrued interest (including Additional Interest, if any), if any to the Fundamental Change Repurchase Date and the Make Whole Premium, if applicable,
(v) that on the Repurchase Date the Repurchase Price, as the case may be, and accrued but unpaid interest interest, if any (and Liquidated Damages)including Additional Interest, if any), to, but excluding, the Repurchase Date or and the Fundamental Change Repurchase Date, as the case may be,
(vii) that on the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be, the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, and accrued but unpaid interest (and Liquidated Damages)Make Whole Premium, if any, to, but excluding, the Repurchase Date or the Fundamental Change Repurchase Date, as the case may beapplicable, will become due and payable upon each such Security designated by the Holder to be repurchased, and that interest thereon shall cease to accrue on and after said date,
(viiivi) the Conversion Price Rate then in effect,, the date on which the right to convert the aggregate principal amount of the Securities to be repurchased will terminate and the place or places where such Securities may be surrendered for conversion, and if the Make Whole Premium is applicable, that the Make Whole Premium is payable upon conversion of each Security that the Holder elects to convert after receipt of a Company Notice relating to a Fundamental Change which constitutes a Cash Buy-Out and prior to the Repurchase Date, and
(ixvii) the place or places that the Security certificate (including with the Election of Holder to Require Repurchase attached thereto) and the Repurchase Notice (as defined below) specified in Section 2.2 shall be delivered, and, if the Security is a Restricted Security, the place or places that the Transfer Certificate in the form set forth in Exhibit C, required by Section 2.12 shall be delivered,
(x) the name and address of the Paying Agent and Conversion Agent, and
(xi) if the notice relates to a Fundamental Change, the estimated amount of any Make-Whole Premium and the respective percentages of such Make-Whole Premium that will be paid (as contemplated by Section 6.1(b)) in shares of Common Stock and in cash (which indication shall be irrevocable), subject to the satisfaction (or waiver) of the conditions set forth in Section 6.1(c), in the event that a Holder should, in lieu of electing to have Securities repurchased on the Fundamental Change Repurchase Date, elect to convert such Securities during the Fundamental Change Conversion Period, and
(xii) any other information to be included therein pursuant to Section 6.1. No failure of the Company to give the foregoing notices or defect therein shall limit any Holder's ' s right to exercise a repurchase right or affect the validity of the proceedings for the repurchase of Securities. If any of the foregoing provisions or other provisions of this Article III XIV are inconsistent with applicable law, such law shall govern.
(b2) To exercise a repurchase right pursuant to Section 3.1 or Section 3.2right, a Holder shall deliver to the Paying Agent Trustee on or before the close of business on the Business Day prior to the Repurchase Date (i) written notice (in the case of a repurchase pursuant to Section 3.1, a "Repurchase Notice" and, in the case of a repurchase pursuant to Section 3.2, a "Fundamental Change Repurchase Notice") of the Holder's exercise of such right, which notice shall set forth the name of the Holder, the aggregate principal amount of the Securities to be repurchased (and, if any Security is to repurchased in part, the serial number thereof, the portion of the aggregate principal amount thereof to be repurchased (which portion must be in principal amounts of $1,000 or a whole multiple of $1,000) and the name of the Person in which the portion thereof to remain outstanding Outstanding after such repurchase is to be registered), if certificated, the certificate numbers of the Securities to be repurchased, ) and a statement that an election to exercise the repurchase right pursuant to the terms and conditions specified in the Securities and the Indenture is being made thereby, and, in the event that any portion of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, shall be paid in shares of Common Stock, the name or names (with addresses) in which the certificate or certificates for shares of Common Stock shall be issued, and (ii) the Securities with respect to which the Repurchase Notice or Fundamental Change Repurchase Notice relates at any time after delivery repurchase right is being exercised. Such written notice shall be irrevocable, except that the right of the Repurchase Notice or the Fundamental Change Repurchase Notice, as the case may be (together with all necessary endorsements), at the offices of the Paying Agent, such delivery being a condition Holder to receipt by the Holder of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, thereof; provided, however, that such Repurchase Price or Fundamental Change Repurchase Price, as the case may be, shall be so paid pursuant to this Section 3.4(b) only if convert the Securities so delivered with respect to which the Paying Agent shall conform in all respects to the description thereof in the related Repurchase Notice or Fundamental Change Repurchase Notice. In the case of a repurchase right pursuant to Section 3.1 and Section 3.2, such delivery is being exercised shall be at any time from the opening of business on the date that is 20 Business Days prior to the Repurchase Date continue until the close of business on the second Business Day immediately preceding the Repurchase Date.
(3) In the event a repurchase right shall be exercised in accordance with the terms hereof, the Company shall pay or cause to be paid to the Trustee before 10:00 a.m. (Eastern time) on the Repurchase Date the Repurchase Price in cash, and the Make Whole Premium, if applicable, as provided above, for payment to the Holder on the Repurchase Date, together with accrued and unpaid interest to, but excluding, the Repurchase Date, and the Make Whole Premium, if applicable, payable with respect to the Securities as to which the repurchase right has been exercised; provided, however, that installments of interest that mature on or prior to the Repurchase Date shall be payable in cash to the Holders of such Securities, or one or more Predecessor Securities, registered as such at the Fundamental Change close of business on the relevant Regular Record Date.
(4) If any Security (or portion thereof) surrendered for repurchase shall not be so paid on the Repurchase Date, the aggregate principal amount of such Security (or portion thereof, as the case may be), subject including the Make Whole Premium, if applicable, shall, until paid, bear interest to extension the extent permitted by applicable law from the Repurchase Date at the rate of 5.75% per annum, and each Security shall remain convertible into Common Stock until the principal of such Security (or portion thereof, as the case may be) shall have been paid or duly provided for.
(5) Any Security that is to comply with applicable law. Owners be repurchased only in part shall be surrendered to the Trustee (with, if the Company or the Trustee so requires, due endorsement by, or a written instrument of beneficial interests transfer in Global Securities form satisfactory to the Company and the Trustee duly executed by, the Holder thereof or his attorney duly authorized in writing), and the Company shall provide execute, and upon its actual receipt by a Repurchase Notice Responsible Officer of a Company Order to such effect, the Trustee shall authenticate and make available for delivery to the Holder of such Security pursuant to such Order without service charge, a new Security or Fundamental Change Repurchase Notice Securities, containing identical terms and conditions, each in accordance with an authorized denomination in aggregate principal amount equal to and in exchange for the Applicable Procedures unrepurchased portion of the Depositaryprincipal of the Security so surrendered.
(6) All Securities delivered for repurchase shall be delivered to the Trustee to be canceled at the direction of the Trustee, which shall dispose of the same as provided in Section 3.9.
Appears in 1 contract
Samples: Indenture (Collegiate Pacific Inc)
Notices; Method of Exercising Repurchase Right, Etc. (a) 1. Unless the Company shall have theretofore called for redemption all of the outstanding SecuritiesNotes, the Company shall give to the Trustee, the Paying Agent and all Holders of Securities, in the manner provided in this Section 3.4, a notice containing the information required pursuant to the following provisions of this Section 3.4(a) (the "Company Notice") (i) on or before the 20th Business Day prior to the Repurchase Date or, in the event of a Fundamental Change arising from a Change of Control, the anticipated Effective Date (but in no event earlier than 45 days prior to the Repurchase Date or anticipated Effective Date, as the case may be), and (ii) within 15 Business Days 30th day after the Company knows or reasonably should know of the occurrence of a Fundamental Change that arises as a result of any Termination of Trading. Prior to or concurrently with the delivery of any Company NoticeDesignated Event, the Company will issue a press release or publish such information on the Company's then existing website including the information required to be included in such Company Notice hereunder. The Company shall also deliver a copy of any Company Notice to the Trustee. At or, at the request and expense of the Company on or before Company, the fifth Business Day prior Trustee, shall give to all Holders of Notes, notice (the date on which “Designated Event Notice”) of the occurrence of the Designated Event and of the repurchase right set forth herein arising as a result thereof. If the Company gives such Designated Event Notice is to be mailedHolders, the Trustee it shall provide the Company also give such Designated Event Notice to the Holders in accordance with the provisions of this IndentureTrustee. Each Designated Event Notice shall describe such Designated Event, shall state that as a result of the occurrence of such Designated Event the Holder has the right to require the Company Notice to repurchase the Holder’s Notes in whole or in part and shall state:
(i) the Repurchase Date or the Fundamental Change Designated Event Repurchase Date, as the case may be,
(ii) the date by which the repurchase right must be exercisedexercised pursuant to Section 3.15(b),
(iii) the Repurchase Price or the Fundamental Change Designated Event Repurchase Price, as the case may be, and whether the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, shall be paid by the Company in cash or by delivery of shares of Common Stock, or a specified combination thereof and the percentage of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, that will be paid in shares of Common Stock (which indication shall be irrevocable, subject to the satisfaction (or waiver) of the conditions set forth in Section 3.3),
(iv) if the notice relates to the occurrence of a Fundamental Change, the events causing the Fundamental Change and the date of the Fundamental Change,
(v) that Securities with respect to which a Holder gives a Repurchase Notice or Fundamental Change Repurchase Notice may be converted only if the Holder withdraws the Repurchase Notice or Fundamental Change Repurchase Notice as to such Securities in accordance with the terms of this Indenture,
(vi) a description of the procedure that which a Holder must follow to exercise a repurchase right, and the place or places where such Securities Notes are to be surrendered for payment of the Designated Event Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, and accrued but and unpaid interest (and Liquidated Damages)interest, if any, to, but excluding, the Repurchase Date or the Fundamental Change Designated Event Repurchase Date, as the case may be,
(viiv) that on the Designated Event Repurchase Date or the Fundamental Change Repurchase Date, as the case may be, the Repurchase Price or the Fundamental Change Designated Event Repurchase Price, as the case may be, and accrued but and unpaid interest (and Liquidated Damages)interest, if any, to, but excluding, the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be, will become due and payable upon each such Security Note designated by the Holder to be repurchasedrepurchased (unless such Holder exercises its right to convert such Note pursuant to Article X of this Indenture), and that interest thereon shall cease to accrue on and after said datedate with respect to any Note designated by the Holder to be repurchased,
(viiivi) the Conversion Price then in effect,, the date on which the right to convert the principal amount of the Notes to be repurchased will terminate and the place or places where such Notes may be surrendered for conversion, and
(ixvii) the place or places that the Security certificate (including the Election of Holder to Require Repurchase attached thereto) and the Repurchase Notice (as defined belownotice described in Section 3.15(b) shall be delivered, and, if the Security is a Restricted Security, the place or places that the Transfer Certificate in and the form set forth in Exhibit C, required by Section 2.12 shall be delivered,
(x) the name and address of the Paying Agent and Conversion Agent, and
(xi) if the notice relates to a Fundamental Change, the estimated amount of any Make-Whole Premium and the respective percentages of such Make-Whole Premium that will be paid (as contemplated by Section 6.1(b)) in shares of Common Stock and in cash (which indication shall be irrevocable), subject to the satisfaction (or waiver) of the conditions set forth in Section 6.1(c), in the event that a Holder should, in lieu of electing to have Securities repurchased on the Fundamental Change Repurchase Date, elect to convert such Securities during the Fundamental Change Conversion Period, and
(xii) any other information to be included therein pursuant to Section 6.1notice. No failure of the Company to give the foregoing notices or defect therein shall limit any Holder's ’s right to exercise a repurchase right or affect the validity of the proceedings for the repurchase of SecuritiesNotes. If any of the foregoing provisions or other provisions of this Article III are inconsistent with applicable law, such law shall govern.
(b) To exercise a repurchase right pursuant to Section 3.1 or Section 3.2, a Holder shall deliver to the Paying Agent (i) written notice (in the case of a repurchase pursuant to Section 3.1, a "Repurchase Notice" and, in the case of a repurchase pursuant to Section 3.2, a "Fundamental Change Repurchase Notice") of the Holder's exercise of such right, which notice shall set forth the name of the Holder, the principal amount of the Securities to be repurchased (and, if any Security is to repurchased in part, the portion of the principal amount thereof to be repurchased (which portion must be in principal amounts of $1,000 or a whole multiple of $1,000) and the name of the Person in which the portion thereof to remain outstanding after such repurchase is to be registered), if certificated, the certificate numbers of the Securities to be repurchased, and a statement that an election to exercise the repurchase right pursuant to the terms and conditions specified in the Securities and the Indenture is being made thereby, and, in the event that any portion of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, shall be paid in shares of Common Stock, the name or names (with addresses) in which the certificate or certificates for shares of Common Stock shall be issued, and (ii) the Securities to which the Repurchase Notice or Fundamental Change Repurchase Notice relates at any time after delivery of the Repurchase Notice or the Fundamental Change Repurchase Notice, as the case may be (together with all necessary endorsements), at the offices of the Paying Agent, such delivery being a condition to receipt by the Holder of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, thereof; provided, however, that such Repurchase Price or Fundamental Change Repurchase Price, as the case may be, shall be so paid pursuant to this Section 3.4(b) only if the Securities so delivered to the Paying Agent shall conform in all respects to the description thereof in the related Repurchase Notice or Fundamental Change Repurchase Notice. In the case of a repurchase right pursuant to Section 3.1 and Section 3.2, such delivery shall be at any time from the opening of business on the date that is 20 Business Days prior to the Repurchase Date until the close of business on the second Business Day prior to the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be, subject to extension to comply with applicable law. Owners of beneficial interests in Global Securities shall provide a Repurchase Notice or Fundamental Change Repurchase Notice in accordance with the Applicable Procedures of the Depositary.
Appears in 1 contract
Samples: Indenture (Expressjet Holdings Inc)
Notices; Method of Exercising Repurchase Right, Etc. (a) Unless the Company shall have theretofore called for redemption all of the outstanding Outstanding Securities, on or before the 30th day after the occurrence of a Fundamental Change, the Company or, at the request and expense of the Company, the Trustee, shall give to the Trustee, the Paying Agent and all Holders of Securities, in the manner provided in this Section 3.41.6, a notice containing the information required pursuant to the following provisions of this Section 3.4(a) (the "Company Notice") (i) on or before the 20th Business Day prior to the Repurchase Date or, in the event of a Fundamental Change arising from a Change of Control, the anticipated Effective Date (but in no event earlier than 45 days prior to the Repurchase Date or anticipated Effective Date, as the case may be), and (ii) within 15 Business Days after the Company knows or reasonably should know of the occurrence of a the Fundamental Change that arises and of the repurchase right set forth herein arising as a result of any Termination of Trading. Prior to or concurrently with the delivery of any Company Notice, the Company will issue a press release or publish such information on the Company's then existing website including the information required to be included in such Company Notice hereunderthereof. The Company shall also deliver a copy of any Company Notice such notice of a repurchase right to the Trustee. At the request and expense Each notice of the Company on or before the fifth Business Day prior to the date on which the Company Notice is to be mailed, the Trustee shall provide the Company Notice to the Holders in accordance with the provisions of this Indenture. Each Company Notice a repurchase right shall state:
(i1) the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be,
(ii2) the date by which the repurchase right must be exercised,
(iii3) the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, and whether the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, shall be paid by the Company in cash or by delivery of shares of Common Stock, or a specified combination thereof and the percentage of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, that will be paid in shares of Common Stock (which indication shall be irrevocable, subject to the satisfaction (or waiver) of the conditions set forth in Section 3.3),
(iv) if the notice relates to the occurrence of a Fundamental Change, the events causing the Fundamental Change and the date of the Fundamental Change,
(v) that Securities with respect to which a Holder gives a Repurchase Notice or Fundamental Change Repurchase Notice may be converted only if the Holder withdraws the Repurchase Notice or Fundamental Change Repurchase Notice as to such Securities in accordance with the terms of this Indenture,
(vi4) a description of the procedure that which a Holder must follow to exercise a repurchase right, and the place or places where such Securities maturing after the Repurchase Date, are to be surrendered for payment of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, and accrued but unpaid interest (and Liquidated Damages)interest, if any, to, but excluding, the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be,
(vii5) that on the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be, the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, and accrued but unpaid interest (and Liquidated Damages)interest, if any, to, but excluding, the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be, will become due and payable upon each such Security designated by the Holder to be repurchased, and that interest thereon shall cease to accrue on and after said date,, and
(viii6) the Conversion Price then in effect,
(ix) , the date on which the right to convert the principal amount of the Securities to be repurchased will terminate and the place or places that the Security certificate (including the Election of Holder to Require Repurchase attached thereto) and the Repurchase Notice (as defined below) shall be delivered, and, if the Security is a Restricted Security, the place or places that the Transfer Certificate in the form set forth in Exhibit C, required by Section 2.12 shall be delivered,
(x) the name and address of the Paying Agent and Conversion Agent, and
(xi) if the notice relates to a Fundamental Change, the estimated amount of any Make-Whole Premium and the respective percentages of such Make-Whole Premium that will be paid (as contemplated by Section 6.1(b)) in shares of Common Stock and in cash (which indication shall be irrevocable), subject to the satisfaction (or waiver) of the conditions set forth in Section 6.1(c), in the event that a Holder should, in lieu of electing to have Securities repurchased on the Fundamental Change Repurchase Date, elect to convert where such Securities during the Fundamental Change Conversion Period, and
(xii) any other information to may be included therein pursuant to Section 6.1surrendered for conversion. No failure of the Company to give the foregoing notices or defect therein shall limit any Holder's right to exercise a repurchase right or affect the validity of the proceedings for the repurchase of Securities. If any of the foregoing provisions or other provisions of this Article III are inconsistent with applicable law, such law shall govern.
(b) To exercise a repurchase right pursuant to Section 3.1 or Section 3.2right, a Holder shall deliver to the Trustee or any Paying Agent on or before the 30th day after the date of the Company Notice (i) written notice (in the case of a repurchase pursuant to Section 3.1, a "Repurchase Notice" and, in the case of a repurchase pursuant to Section 3.2, a "Fundamental Change Repurchase Notice") of the Holder's exercise of such right, which notice shall set forth the name of the Holder, the principal amount of the Securities to be repurchased (and, if any Security is to be repurchased in part, the serial number thereof, the portion of the principal amount thereof to be repurchased (which portion must be in principal amounts of $1,000 or a whole multiple of $1,000) and the name of the Person in which the portion thereof to remain outstanding Outstanding after such repurchase is to be registered), if certificated, the certificate numbers of the Securities to be repurchased, ) and a statement that an election to exercise the repurchase right pursuant to the terms and conditions specified in the Securities and the Indenture is being made thereby, and, in the event that any portion of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, shall be paid in shares of Common Stock, the name or names (with addresses) in which the certificate or certificates for shares of Common Stock shall be issued, -108- 117 and (ii) the Securities with respect to which the Repurchase Notice or Fundamental Change Repurchase Notice relates at any time after delivery repurchase right is being exercised. Such written notice shall be irrevocable, except that the right of the Repurchase Notice or the Fundamental Change Repurchase Notice, as the case may be (together with all necessary endorsements), at the offices of the Paying Agent, such delivery being a condition Holder to receipt by the Holder of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, thereof; provided, however, that such Repurchase Price or Fundamental Change Repurchase Price, as the case may be, shall be so paid pursuant to this Section 3.4(b) only if convert the Securities so delivered with respect to which the Paying Agent shall conform in all respects to the description thereof in the related Repurchase Notice or Fundamental Change Repurchase Notice. In the case of a repurchase right pursuant to Section 3.1 and Section 3.2, such delivery is being exercised shall be at any time from the opening of business on the date that is 20 Business Days prior to the Repurchase Date continue until the close of business on the second Business Day prior to the Repurchase Date Date.
(c) In the event a repurchase right shall be exercised in accordance with the terms hereof, the Company shall pay or cause to be paid to the Trustee or the Fundamental Change Paying Agent the Repurchase Price in cash, as provided above, for payment to the Holder on the Repurchase Date together with accrued and unpaid interest to the Repurchase Date payable with respect to the Securities as to which their purchase right has been exercised; provided, however, that installments of interest that mature on or prior to the Repurchase Date shall be payable in cash, in the case of Securities, to the Holders of such Securities, or one or more Predecessor Securities, registered as such at the close of business on the relevant Regular Record Date.
(d) If any Security (or portion thereof) surrendered for repurchase shall not be so paid on the Repurchase Date, the principal amount of such Security (or portion thereof, as the case may be) shall, subject until paid, bear interest to extension the extent permitted by applicable law from the Repurchase Date at the rate of 6% per annum, and each Security shall remain convertible into Common Stock until the principal of such Security (or portion thereof, as the case may be) shall have been paid or duly provided for.
(e) Any Security which is to comply with applicable law. Owners be repurchased only in part shall be surrendered to the Trustee (with, if the Company or the Trustee so requires, due endorsement by, or a written instrument of beneficial interests transfer in Global Securities form satisfactory to the Company and the Trustee duly executed by, the Holder thereof or his attorney duly authorized in writing), and the Company shall provide execute, and the Trustee shall authenticate and make available for delivery to the Holder of such Security without service charge, a Repurchase Notice new Security or Fundamental Change Repurchase Notice Securities, containing identical terms and conditions, each in accordance with an authorized denomination in aggregate principal amount equal to and in exchange for the Applicable Procedures unrepurchased portion of the Depositaryprincipal of the Security so surrendered.
(f) All securities delivered for repurchase shall be delivered to the Trustee, the Paying Agent or any other agents (as shall be set forth in the Company Notice) to be canceled by or at the direction of the Trustee, which shall dispose of the same as provided in Section 3.9.
Appears in 1 contract
Notices; Method of Exercising Repurchase Right, Etc. (a1) Unless the Company shall have theretofore called for redemption all of the outstanding Outstanding Securities, the Company shall give to the Trustee, the Paying Agent and all Holders of Securities, in the manner provided in this Section 3.4, a notice containing the information required pursuant to the following provisions of this Section 3.4(a) (the "Company Notice") (i) on or before the 20th Business Day prior to the Repurchase Date or, in the event of a Fundamental Change arising from a Change of Control, the anticipated Effective Date (but in no event earlier than 45 days prior to the Repurchase Date or anticipated Effective Date, as the case may be), and (ii) within 15 Business Days 30th day after the Company knows or reasonably should know of the occurrence of a Fundamental Change that arises as a result of any Termination of Trading. Prior to or concurrently with the delivery of any Company Noticein Control, the Company will issue a press release or publish such information on the Company's then existing website including the information required to be included in such Company Notice hereunder. The Company shall also deliver a copy of any Company Notice to the Trustee. At or, at the request and expense of the Company on or before the fifth Business Day prior to the date on which the Company Notice is to be mailed15th day after such occurrence, the Trustee Trustee, shall provide give to all Holders of Securities, in the manner provided in Section 1.6, notice (the "Company Notice") of the occurrence of the Change in Control and of the repurchase right set forth herein arising as a result thereof. The Company shall also deliver a copy of such Company Notice to the Holders in accordance with the provisions of this IndentureTrustee. Each Company Notice shall state:
(i) the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be,;
(ii) the date by which the repurchase right must be exercised,;
(iii) the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, and whether the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, shall be paid by the Company in cash or by delivery of shares of Common Applicable Stock, or a specified combination thereof and the percentage of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, that will be paid in shares of Common Stock (which indication shall be irrevocable, subject to the satisfaction (or waiver) of the conditions set forth in Section 3.3),;
(iv) if the notice relates to the occurrence of a Fundamental Change, the events causing the Fundamental Change and the date of the Fundamental Change,
(v) that Securities with respect to which a Holder gives a Repurchase Notice or Fundamental Change Repurchase Notice may be converted only if the Holder withdraws the Repurchase Notice or Fundamental Change Repurchase Notice as to such Securities in accordance with the terms of this Indenture,
(vi) a description of the procedure that a Holder must follow to exercise a repurchase right, and the place or places where such Securities are to be surrendered for payment of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, and accrued but unpaid interest (and Liquidated Damagesincluding Special Interest, if any), if any, to, but excluding, any to the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be,;
(viiv) that on the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be, the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, and accrued but unpaid interest (and Liquidated Damagesincluding Special Interest, if any), if any, to, but excluding, any to the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be, will become due and payable upon each such Security designated by the Holder to be repurchased, and that interest thereon shall cease to accrue on and after said date,;
(viiivi) the Conversion Price Rate then in effect,, the date on which the right to convert the principal amount of the Securities to be repurchased will terminate and the place or places where such Securities may be surrendered for conversion;
(ixvii) the place or places that the Security certificate (including with the Election of Holder to Require Repurchase attached thereto) and the Repurchase Notice (as defined below) specified in Section 2.2 shall be delivered, and, and if the Security is a Restricted Security, Securities Certificate the place or places that the Transfer Surrender Certificate in the form set forth in Exhibit C, required by Section 2.12 14.3(9) shall be delivered,; and 105
(xviii) the name and address of the Paying Agent and Conversion Agent, and
(xi) if the notice relates Holder's right to withdraw a Fundamental Change, the estimated amount of any Make-Whole Premium completed Company Notice and the respective percentages of such Make-Whole Premium that will be paid (as contemplated by Section 6.1(b)) in shares of Common Stock and in cash (which indication shall be irrevocable), subject to the satisfaction (or waiver) of the conditions set forth in Section 6.1(c), in the event that procedures for withdrawing a Holder should, in lieu of electing to have Securities repurchased on the Fundamental Change Repurchase Date, elect to convert such Securities during the Fundamental Change Conversion Period, and
(xii) any other information to be included therein Company Notice pursuant to Section 6.1clause (2) below. No failure of the Company to give the foregoing notices or defect therein shall limit any Holder's ' s right to exercise a repurchase right or affect the validity of the proceedings for the repurchase of Securities. If any of the foregoing provisions or other provisions of this Article III XIV are inconsistent with applicable law, such law shall govern.
(b2) To exercise a repurchase right pursuant to Section 3.1 or Section 3.2right, a Holder shall deliver to the Paying Agent Trustee on or before the second Business Day immediately preceding the 20th day after the date of the Company Notice (i) written notice (in the case of a repurchase pursuant to Section 3.1, a "Repurchase Notice" and, in the case of a repurchase pursuant to Section 3.2, a "Fundamental Change Repurchase Notice") of the Holder's exercise of such right, which notice shall set forth the name of the Holder, the principal amount of the Securities to be repurchased (and, if any Security is to repurchased in part, the serial number thereof, the portion of the principal amount thereof to be repurchased (which portion must be in principal amounts of $1,000 or a whole multiple of $1,000) and the name of the Person in which the portion thereof to remain outstanding Outstanding after such repurchase is to be registered), if certificated, the certificate numbers of the Securities to be repurchased, ) and a statement that an election to exercise the repurchase right pursuant to the terms and conditions specified in the Securities and the Indenture is being made thereby, and, in the event that any portion of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, shall be paid in shares of Common Applicable Stock, the name or names (with addresses) in which the certificate or certificates for shares of Common Applicable Stock shall be issued, and (ii) the Securities with respect to which the Repurchase repurchase right is being exercised. Notwithstanding anything in this Indenture to the contrary, any Holder which has delivered a completed Company Notice or Fundamental Change Repurchase to the Trustee shall have the right to withdraw such Company Notice relates by delivery of a written notice of withdrawal delivered to the Corporate Trust Office of the Trustee in accordance with the Company Notice at any time after delivery of the Repurchase Notice or the Fundamental Change Repurchase Notice, as the case may be (together with all necessary endorsements), at the offices of the Paying Agent, such delivery being a condition to receipt by the Holder of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, thereof; provided, however, that such Repurchase Price or Fundamental Change Repurchase Price, as the case may be, shall be so paid pursuant to this Section 3.4(b) only if the Securities so delivered to the Paying Agent shall conform in all respects to the description thereof in the related Repurchase Notice or Fundamental Change Repurchase Notice. In the case of a repurchase right pursuant to Section 3.1 and Section 3.2, such delivery shall be at any time from the opening of business on the date that is 20 Business Days prior to the Repurchase Date until the close of business on the second Business Day immediately preceding the Repurchase Date specifying:
(i) the certificate number, if any, of the Security in respect of which such notice of withdrawal is being submitted;
(ii) the principal of the Security with respect to which such notice of withdrawal is being submitted; and
(iii) the principal, if any, of such Security which remains subject to the original Purchase Notice and which has been or will be delivered for purchase by the Company. The Trustee shall promptly notify the Company of the receipt by it of any Company Notice or written notice of withdrawal thereof. The right of the Holder to convert the Securities with respect to which the repurchase right is being exercised shall continue until the close of business on the Business Day immediately preceding the Repurchase Date. 106
(3) In the event a repurchase right shall be exercised in accordance with the terms hereof, the Company shall pay or cause to be paid to the Trustee the Repurchase Price in cash or shares of Applicable Stock, as provided above, for payment to the Holder on the Repurchase Date or, if shares of Applicable Stock are to be paid, on the date that is 20 days after the date of the Company Notice, together with accrued and unpaid interest to the Repurchase Date payable with respect to the Securities as to which the repurchase right has been exercised; provided, however, that installments of interest that mature on or prior to the Repurchase Date shall be payable in cash to the Holders of such Securities, or one or more Predecessor Securities, registered as such at the Fundamental Change close of business on the relevant Regular Record Date.
(4) If any Security (or portion thereof) surrendered for repurchase shall not be so paid on the Repurchase Date, the principal amount of such Security (or portion thereof, as the case may be) shall, subject until paid, bear interest to extension the extent permitted by applicable law from the Repurchase Date at the rate of 5.00% per annum, and each Security shall remain convertible into Common Stock until the principal of such Security (or portion thereof, as the case may be) shall have been paid or duly provided for.
(5) Any Security that is to comply with be repurchased only in part shall be surrendered to the Trustee (with, if the Company or the Trustee so requires, due endorsement by, or a written instrument of transfer in form satisfactory to the Company and the Trustee duly executed by, the Holder thereof or his attorney duly authorized in writing), and the Company shall execute, and the Trustee shall authenticate and make available for delivery to the Holder of such Security without service charge, a new Security or Securities, containing identical terms and conditions, each in an authorized denomination in aggregate principal amount equal to and in exchange for the unrepurchased portion of the principal of the Security so surrendered.
(6) Any issuance of shares of Applicable Stock in respect of the Repurchase Price shall be deemed to have been effected immediately prior to the close of business on the Repurchase Date and the Person or Persons in whose name or names any certificate or certificates for shares of Applicable Stock shall be issuable upon such repurchase shall be deemed to have become on the Repurchase Date the holder or holders of record of the shares represented thereby; provided, however, that any surrender for repurchase on a date when the stock transfer books of the Company shall be closed shall constitute the Person or Persons in whose name or names the certificate or certificates for such shares are to be issued as the record holder or holders thereof for all purposes at the opening of business on the next succeeding day on which such stock transfer books are open. No payment or adjustment shall be made for dividends or distributions on any Applicable Stock issued upon repurchase of any Security declared prior to the Repurchase Date.
(7) No fractions of shares shall be issued upon repurchase of Securities. If more than one Security shall be repurchased from the same Holder and the Repurchase Price shall be payable in shares of Applicable Stock, the number of full shares that shall be issuable upon such repurchase shall be computed on the basis of the aggregate principal amount of the Securities so repurchased. 107 Instead of any fractional share of Applicable Stock that would otherwise be issuable on the repurchase of any Security or Securities, the Company will deliver to the applicable lawHolder its check for the current market value of such fractional share. Owners The current market value of beneficial interests in Global a fraction of a share is determined by multiplying the current market price of a full share by the fraction, and rounding the result to the nearest cent. For purposes of this Section, the current market price of a share of Applicable Stock is the Closing Price Per Share of the Applicable Stock on the Trading Day immediately preceding the Repurchase Date.
(8) Any issuance and delivery of certificates for shares of Applicable Stock on repurchase of Securities shall provide be made without charge to the Holder of Securities being repurchased for such certificates or for any tax or duty in respect of the issuance or delivery of such certificates or the securities represented thereby; provided, however, that the Company shall not be required to pay any tax or duty that may be payable in respect of (i) income of the Holder or (ii) any transfer involved in the issuance or delivery of certificates for shares of Applicable Stock in a Repurchase Notice name other than that of the Holder of the Securities being repurchased, and no such issuance or Fundamental Change Repurchase Notice delivery shall be made unless and until the Person requesting such issuance or delivery has paid to the Company the amount of any such tax or duty or has established, to the satisfaction of the Company, that such tax or duty has been paid.
(9) If shares of Applicable Stock to be delivered upon repurchase of a Security are to be registered in accordance a name other than that of the beneficial owner of such Security, then such Holder must deliver to the Trustee a Surrender Certificate, dated the date of surrender of such Restricted Security and signed by such beneficial owner, as to compliance with the Applicable Procedures restrictions on transfer applicable to such Restricted Security. Neither the Trustee nor any Registrar or Transfer Agent or other agents shall be required to register in a name other than that of the Depositarybeneficial owner shares of Applicable Stock issued upon repurchase of any such Restricted Security not so accompanied by a properly completed Surrender Certificate.
(10) All Securities delivered for repurchase shall be delivered to the Trustee to be canceled at the direction of the Trustee, which shall dispose of the same as provided in Section 3.9.
Appears in 1 contract
Samples: Indenture (Reliant Resources Inc)
Notices; Method of Exercising Repurchase Right, Etc. (a) Unless the Company shall have theretofore called for redemption all of the outstanding Outstanding Securities, the Company shall give to the Trustee, the Paying Agent and all Holders of Securities, in the manner provided in this Section 3.4, a notice containing the information required pursuant to the following provisions of this Section 3.4(a) (the "Company Notice") (i) on or before the 20th Business Day prior to the Repurchase Date or, in the event of a Fundamental Change arising from a Change of Control, the anticipated Effective Date (but in no event earlier than 45 days prior to the Repurchase Date or anticipated Effective Date, as the case may be), and (ii) within 15 Business Days 30th day after the Company knows or reasonably should know of the occurrence of a Fundamental Change that arises as a result of any Termination of Trading. Prior to or concurrently with the delivery of any Company Noticein Control, the Company will issue a press release or publish such information on the Company's then existing website including the information required to be included in such Company Notice hereunder. The Company shall also deliver a copy of any Company Notice to the Trustee. At or, at the request and expense of the Company on or before the fifth Business Day prior 15th day after such occurrence, the Trustee, shall give to all Holders of Securities, in the manner provided in Section 1.6, notice (the "Company Notice") of the occurrence of the Change of Control and of the repurchase right set forth herein arising as a result thereof. The Company shall also deliver a copy of such notice of a repurchase right to the date on which the Company Notice is to be mailed, the Trustee shall provide the Company Notice to the Holders in accordance with the provisions of this IndentureTrustee. Each Company Notice notice of a repurchase right shall state:
(i1) the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be,
(ii2) the date by which the repurchase right must be exercised,
(iii3) the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, and whether the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, shall be paid by the Company in cash or by delivery of shares of Common Stock, or a specified combination thereof and the percentage of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, that will be paid in shares of Common Stock (which indication shall be irrevocable, subject to the satisfaction (or waiver) of the conditions set forth in Section 3.3)Alcatel ADSs,
(iv) if the notice relates to the occurrence of a Fundamental Change, the events causing the Fundamental Change and the date of the Fundamental Change,
(v) that Securities with respect to which a Holder gives a Repurchase Notice or Fundamental Change Repurchase Notice may be converted only if the Holder withdraws the Repurchase Notice or Fundamental Change Repurchase Notice as to such Securities in accordance with the terms of this Indenture,
(vi4) a description of the procedure that which a Holder must follow to exercise a repurchase right, and the place or places where such Securities Securities, are to be surrendered for payment of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, and accrued but unpaid interest (and Liquidated Damages)interest, if any, to, but excluding, the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be,
(vii5) that on the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be, the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, and accrued but unpaid interest (and Liquidated Damages)interest, if any, to, but excluding, the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be, will become due and payable upon each such Security designated by the Holder to be repurchased, and that interest thereon shall cease to accrue on and after said date,
(viii6) the Conversion Price Rate then in effect,, the date on which the right to convert the principal amount of the Securities to be repurchased will terminate and the place or places where such Securities may be surrendered for conversion, and
(ix7) the place or places that the Security certificate (including the Election of Holder to Require Repurchase attached thereto) and the Repurchase Notice (as defined below) required by Section 2.2 shall be delivered, and, if and the Security is a Restricted Security, form of such certificate and the place or places that the Transfer Surrender Certificate in the form set forth in Exhibit C, required by Section 2.12 14.3(i) shall be delivered,
(x) . 113 In addition, at least two Business Days preceding the name and address Repurchase Date, the Company shall give to all Holders of the Paying Agent and Conversion Agent, and
(xi) if the notice relates to a Fundamental Change, the estimated amount of any Make-Whole Premium and the respective percentages of such Make-Whole Premium that will be paid (as contemplated by Section 6.1(b)) in shares of Common Stock and in cash (which indication shall be irrevocable), subject to the satisfaction (or waiver) of the conditions set forth in Section 6.1(c)Securities, in the event that manner provided in Section 1.6, notice specifying whether the Repurchase Price will be payable in cash or Alcatel ADSs and shall deliver a Holder should, in lieu copy of electing such notice to have Securities repurchased on the Fundamental Change Repurchase Date, elect to convert such Securities during the Fundamental Change Conversion Period, and
(xii) any other information to be included therein pursuant to Section 6.1Trustee. No failure of the Company to give the foregoing notices or defect therein shall limit any Holder's right to exercise a repurchase right or affect the validity of the proceedings for the repurchase of Securities. If any of the foregoing provisions or other provisions of this Article III Fourteen are inconsistent with applicable law, such law shall govern.
(b) To exercise a repurchase right pursuant to Section 3.1 or Section 3.2right, a Holder shall deliver to the Paying Agent Trustee on or before the 30th day after the date of the Company Notice (i) written notice (in the case of a repurchase pursuant to Section 3.1, a "Repurchase Notice" and, in the case of a repurchase pursuant to Section 3.2, a "Fundamental Change Repurchase Notice") of the Holder's exercise of such right, which notice shall set forth the name of the Holder, the principal amount of the Securities to be repurchased (and, if any Security is to repurchased in part, the serial number thereof, the portion of the principal amount thereof to be repurchased (which portion must be in principal amounts of $1,000 or a whole multiple of $1,000) and the name of the Person in which the portion thereof to remain outstanding Outstanding after such repurchase is to be registered), if certificated, the certificate numbers of the Securities to be repurchased, ) and a statement that an election to exercise the repurchase right pursuant to the terms and conditions specified in the Securities and the Indenture is being made thereby, and, in the event that any portion of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, shall be paid in shares of Common StockAlcatel ADSs, the name or names (with addresses) in which the certificate or certificates for shares of Common Stock Alcatel ADSs shall be issued, and (ii) the Securities with respect to which the Repurchase Notice or Fundamental Change Repurchase Notice relates at any time after delivery repurchase right is being exercised. Such written notice shall be irrevocable, except that the right of the Repurchase Notice or the Fundamental Change Repurchase Notice, as the case may be (together with all necessary endorsements), at the offices of the Paying Agent, such delivery being a condition Holder to receipt by the Holder of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, thereof; provided, however, that such Repurchase Price or Fundamental Change Repurchase Price, as the case may be, shall be so paid pursuant to this Section 3.4(b) only if convert the Securities so delivered with respect to which the Paying Agent shall conform in all respects to the description thereof in the related Repurchase Notice or Fundamental Change Repurchase Notice. In the case of a repurchase right pursuant to Section 3.1 and Section 3.2, such delivery is being exercised shall be at any time from the opening of business on the date that is 20 Business Days prior to the Repurchase Date continue until the close of business on the second Business Day Repurchase Date.
(c) In the event a repurchase right shall be exercised in accordance with the terms hereof, the Company shall pay or cause to be paid to the Trustee the Repurchase Price in cash or Alcatel ADSs, as provided above, for payment to the Holder on the Repurchase Date or, if Alcatel ADSs are to be paid, as promptly after the Repurchase Date as practicable, together with accrued and unpaid interest to the Repurchase Date payable with respect to the Securities as to which the purchase right has been exercised; provided, however, that installments of interest that mature on or prior to the Repurchase Date shall be payable in cash to the Holders of such Securities, or one or more Predecessor Securities, registered as such at the Fundamental Change close of business on the relevant Regular Record Date.
(d) If any Security (or portion thereof) surrendered for repurchase shall not be so paid on the Repurchase Date, the principal amount of such Security (or portion thereof, as the case may be) shall, subject until paid, bear interest to extension the extent permitted by applicable law from the Repurchase Date at the rate of 7% per annum, and each Security shall remain convertible into Alcatel ADSs until the principal of such Security (or portion thereof, as the case may be) shall have been paid or duly provided for.
(e) Any Security which is to comply with be repurchased only in part shall be surrendered to the Trustee (with, if the Company or the Trustee so requires, due endorsement by, or a written instrument of transfer in form satisfactory to the Company and the Trustee duly executed by, 114 the Holder thereof or his attorney duly authorized in writing), and the Company shall execute, and the Trustee shall authenticate and make available for delivery to the Holder of such Security without service charge, a new Security or Securities, containing identical terms and conditions, each in an authorized denomination in aggregate principal amount equal to and in exchange for the unrepurchased portion of the principal of the Security so surrendered.
(f) Any delivery of Alcatel ADSs in respect of the Repurchase Price shall be deemed to have been effected immediately prior to the close of business on the Repurchase Date and the Person or Persons in whose name or names any certificate or certificates for Alcatel ADSs shall be issuable upon such repurchase shall be deemed to have become on the Repurchase Date the holder or holders of record of the Alcatel ADSs represented thereby; provided, however, that any surrender for repurchase on a date when the stock transfer books of the Company shall be closed shall constitute the Person or Persons in whose name or names the certificate or certificates for such Alcatel ADSs are to be issued as the record holder or holders thereof for all purposes at the opening of business on the next succeeding day on which such stock transfer books are open. No payment or adjustment shall be made for dividends or distributions on any Alcatel ADSs delivered upon repurchase of any Security declared prior to the Repurchase Date.
(g) No fractions of Alcatel ADSs shall be delivered upon repurchase of Securities. If more than one Security shall be repurchased from the same Holder and the Repurchase Price shall be payable in Alcatel ADSs, the number of full Alcatel ADSs which shall be deliverable upon such repurchase shall be computed on the basis of the aggregate principal amount of the Securities so repurchased. Instead of any fractional Alcatel ADSs which would otherwise be deliverable on the repurchase of any Security or Securities, the Company will deliver to the applicable lawHolder its check for the current market value of such fractional Alcatel ADSs . Owners The current market value of beneficial interests in Global a fraction of an Alcatel ADS is determined by multiplying the current market price of a full Alcatel ADS by the fraction, and rounding the result to the nearest cent. For purposes of this Section, the current market price of an Alcatel ADS is the Closing Price Per Alcatel ADS on the Trading Day immediately preceding the Repurchase Date.
(h) Any issuance and delivery of certificates for Alcatel ADSs on repurchase of Securities shall provide be made without charge to the Holder of Securities being repurchased for such certificates or for any tax or duty in respect of the issuance or delivery of such certificates or the securities represented thereby; provided, however, that the Company shall not be required to pay any tax or duty which may be payable in respect of (i) income of the Holder or (ii) any transfer involved in the issuance or delivery of certificates for Alcatel ADSs in a Repurchase Notice name other than that of the Holder of the Securities being repurchased, and no such issuance or Fundamental Change Repurchase Notice delivery shall be made unless and until the Person requesting such issuance or delivery has paid to the Company the amount of any such tax or duty or has established, to the satisfaction of the Company, that such tax or duty has been paid.
(i) If Alcatel ADSs to be delivered upon repurchase of a Security are to be registered in accordance a name other than that of the beneficial owner of such Security, then such Holder must deliver to the Trustee a Surrender Certificate, dated the date of surrender of such Restricted Security and signed by such beneficial owner, as to compliance with the Applicable Procedures restrictions on 115 transfer applicable to such Restricted Security. Neither the Trustee nor any Registrar or Transfer Agent or other agents shall be required to register in a name other than that of the Depositarybeneficial owner of Alcatel ADSs delivered upon repurchase of any such Restricted Security not so accompanied by a properly completed Surrender Certificate.
(j) All Securities delivered for repurchase shall be delivered to the Trustee to be canceled at the direction of the Trustee, which shall dispose of the same as provided in Section 3.9.
Appears in 1 contract
Samples: Indenture (Alcatel Usa Inc)
Notices; Method of Exercising Repurchase Right, Etc. (a1) Unless the Company shall have theretofore called for redemption all of the outstanding Outstanding Securities, on or before the 30th day after the occurrence of a Change in Control, the Company or, at the request and expense of the Company on or before the 15th day after such occurrence, the Trustee, shall give to the Trustee, the Paying Agent and all Holders of Securities, in the manner provided in this Section 3.41.6, a notice containing the information required pursuant to the following provisions of this Section 3.4(a) (the "Company Notice") (i) on or before the 20th Business Day prior to the Repurchase Date or, in the event of a Fundamental Change arising from a Change of Control, the anticipated Effective Date (but in no event earlier than 45 days prior to the Repurchase Date or anticipated Effective Date, as the case may be), and (ii) within 15 Business Days after the Company knows or reasonably should know of the occurrence of a Fundamental the Change that arises of Control and of the repurchase right set forth herein arising as a result of any Termination of Trading. Prior to or concurrently with the delivery of any Company Notice, thereof and the Company will shall issue a press release or publish such information on the Company's then existing website Press Release including the information required to be included in such Company Notice hereunder. The Company shall also deliver a copy of any such Company Notice to the Trustee. At the request and expense of the Company on or before the fifth Business Day prior to the date on which the Company Notice is to be mailed, the Trustee shall provide the Company Notice to the Holders in accordance with the provisions of this Indenture. Each Company Notice shall state:
(i) the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be,
(ii) the date by which the repurchase right must be exercised,
(iii) the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, and whether the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, shall be paid by the Company in cash or by delivery of shares of Common Stock, or a specified combination thereof and the percentage of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, that will be paid in shares of Common Stock (which indication shall be irrevocable, subject to the satisfaction (or waiver) of the conditions set forth in Section 3.3),
(iv) if the notice relates to the occurrence of a Fundamental Change, the events causing the Fundamental Change and the date of the Fundamental Change,
(v) that Securities with respect to which a Holder gives a Repurchase Notice or Fundamental Change Repurchase Notice may be converted only if the Holder withdraws the Repurchase Notice or Fundamental Change Repurchase Notice as to such Securities in accordance with the terms of this Indenture,
(vi) a description of the procedure that a Holder must follow to exercise a repurchase right, and the place or places where such Securities are to be surrendered for payment of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, and accrued but unpaid interest (and Liquidated Damages)interest, if any, to, but excluding, any to the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be,
(viiv) that on the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be, the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, and accrued but unpaid interest (and Liquidated Damages)interest, if any, to, but excluding, any to the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be, will become due and payable upon each such Security designated by the Holder to be repurchased, and that interest thereon shall cease to accrue on and after said date,
(viiivi) the Conversion Price Rate then in effect,, the date on which the right to convert the principal amount of the Securities to be repurchased will terminate and the place or places where such Securities may be surrendered for conversion, and
(ixvii) the place or places that the Security certificate (including with the Election of Holder to Require Repurchase attached thereto) and the Repurchase Notice (as defined below) specified in Section 2.2 shall be delivered, and, if the Security is a Restricted Security, the place or places that the Transfer Certificate in the form set forth in Exhibit C, required by Section 2.12 shall be delivered,
(x) the name and address of the Paying Agent and Conversion Agent, and
(xi) if the notice relates to a Fundamental Change, the estimated amount of any Make-Whole Premium and the respective percentages of such Make-Whole Premium that will be paid (as contemplated by Section 6.1(b)) in shares of Common Stock and in cash (which indication shall be irrevocable), subject to the satisfaction (or waiver) of the conditions set forth in Section 6.1(c), in the event that a Holder should, in lieu of electing to have Securities repurchased on the Fundamental Change Repurchase Date, elect to convert such Securities during the Fundamental Change Conversion Period, and
(xii) any other information to be included therein pursuant to Section 6.1. No failure of the Company to give the foregoing notices or defect therein shall limit any Holder's ' s right to exercise a repurchase right or affect the validity of the proceedings for the repurchase of Securities. If any of the foregoing provisions or other provisions of this Article III XIV are inconsistent with applicable law, such law shall govern.
(b2) To exercise a repurchase right pursuant to Section 3.1 or Section 3.2right, a Holder shall deliver to the Paying Agent Trustee on or before the 30th day after the date of the Company Notice (i) irrevocable written notice (in the case of a repurchase pursuant to Section 3.1, a "Repurchase Notice" and, in the case of a repurchase pursuant to Section 3.2, a "Fundamental Change Repurchase Notice") of the Holder's exercise of such right, which notice shall set forth the name of the Holder, the principal amount of the Securities to be repurchased (and, if any Security is to repurchased in part, the serial number thereof, the portion of the principal amount thereof to be repurchased (which portion must be in principal amounts of $1,000 or a whole multiple of $1,000) and the name of the Person in which the portion thereof to remain outstanding Outstanding after such repurchase is to be registered), if certificated, the certificate numbers of the Securities to be repurchased, ) and a statement that an election to exercise the repurchase right pursuant to the terms and conditions specified in the Securities and the Indenture is being made thereby, and, in the event that any portion of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, shall be paid in shares of Common Stock, the name or names (with addresses) in which the certificate or certificates for shares of Common Stock shall be issued, and (ii) the Securities with respect to which the Repurchase Notice or Fundamental Change Repurchase Notice relates at any time after delivery repurchase right is being exercised. Such written notice shall be irrevocable, except that the right of the Repurchase Notice or the Fundamental Change Repurchase Notice, as the case may be (together with all necessary endorsements), at the offices of the Paying Agent, such delivery being a condition Holder to receipt by the Holder of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, thereof; provided, however, that such Repurchase Price or Fundamental Change Repurchase Price, as the case may be, shall be so paid pursuant to this Section 3.4(b) only if convert the Securities so delivered with respect to which the Paying Agent shall conform in all respects to the description thereof in the related Repurchase Notice or Fundamental Change Repurchase Notice. In the case of a repurchase right pursuant to Section 3.1 and Section 3.2, such delivery is being exercised shall be at any time from the opening of business on the date that is 20 Business Days prior to the Repurchase Date continue until the close of business on the second Business Day immediately preceding the Repurchase Date.
(3) In the event a repurchase right shall be exercised in accordance with the terms hereof, the Company shall pay or cause to be paid to the Trustee the Repurchase Price in cash or shares of Common Stock, as provided above, for payment to the Holder on the Repurchase Date or, if shares of Common Stock are to be paid, as promptly after the Repurchase Date as practicable, together with accrued and unpaid interest to the Repurchase Date payable with respect to the Securities as to which the repurchase right has been exercised; provided, however, that installments of interest that mature on or prior to the Repurchase Date shall be payable in cash to the Holders of such Securities, or one or more Predecessor Securities, registered as such at the Fundamental Change close of business on the relevant Regular Record Date.
(4) If any Security (or portion thereof) surrendered for repurchase shall not be so paid on the Repurchase Date, the principal amount of such Security (or portion thereof, as the case may be) shall, subject until paid, bear interest to extension the extent permitted by applicable law from the Repurchase Date at the rate of 3.75% per annum, and each Security shall remain convertible into Common Stock until the principal of such Security (or portion thereof, as the case may be) shall have been paid or duly provided for.
(5) Any Security that is to comply with be repurchased only in part shall be surrendered to the Trustee (with, if the Company or the Trustee so requires, due endorsement by, or a written instrument of transfer in form satisfactory to the Company and the Trustee duly executed by, the Holder thereof or his attorney duly authorized in writing), and the Company shall execute, and the Trustee shall authenticate and make available for delivery to the Holder of such Security without service charge, a new Security or Securities, containing identical terms and conditions, each in an authorized denomination in aggregate principal amount equal to and in exchange for the unrepurchased portion of the principal of the Security so surrendered.
(6) Any issuance of shares of Common Stock in respect of the Repurchase Price shall be deemed to have been effected immediately prior to the close of business on the Repurchase Date and the Person or Persons in whose name or names any certificate or certificates for shares of Common Stock shall be issuable upon such repurchase shall be deemed to have become on the Repurchase Date the holder or holders of record of the shares represented thereby; provided, however, that any surrender for repurchase on a date when the stock transfer books of the Company shall be closed shall constitute the Person or Persons in whose name or names the certificate or certificates for such shares are to be issued as the record holder or holders thereof for all purposes at the opening of business on the next succeeding day on which such stock transfer books are open. No payment or adjustment shall be made for dividends or distributions on any Common Stock issued upon repurchase of any Security declared prior to the Repurchase Date.
(7) No fractions of shares shall be issued upon repurchase of Securities. If more than one Security shall be repurchased from the same Holder and the Repurchase Price shall be payable in shares of Common Stock, the number of full shares that shall be issuable upon such repurchase shall be computed on the basis of the aggregate principal amount of the Securities so repurchased. Instead of any fractional share of Common Stock that would otherwise be issuable on the repurchase of any Security or Securities, the Company will deliver to the applicable lawHolder its check for the current market value of such fractional share. Owners The current market value of beneficial interests in Global a fraction of a share is determined by multiplying the current market price of a full share by the fraction, and rounding the result to the nearest cent. For purposes of this Section, the current market price of a share of Common Stock is the Closing Price Per Share of the Common Stock on the Trading Day immediately preceding the Repurchase Date.
(8) Any issuance and delivery of certificates for shares of Common Stock on repurchase of Securities shall provide a Repurchase Notice be made without charge to the Holder of Securities being repurchased for such certificates or Fundamental Change Repurchase Notice for any tax or duty in accordance with the Applicable Procedures respect of the Depositaryissuance or delivery of such certificates or the securities represented thereby; provided, however, that the Company shall not be required to pay any tax or duty that may be payable in respect of (i) income of the Holder or (ii) any transfer involved in the issuance or delivery of certificates for shares of Common Stock in a name other than that of the Holder of the Securities being repurchased, and no such issuance or delivery shall be made unless and until the Person requesting such issuance or delivery has paid to the Company the amount of any such tax or duty or has established, to the satisfaction of the Company, that such tax or duty has been paid.
(9) All Securities delivered for repurchase shall be delivered to the Trustee to be canceled at the direction of the Trustee, which shall dispose of the same as provided in Section 3.9.
Appears in 1 contract
Samples: Indenture (Ciena Corp)
Notices; Method of Exercising Repurchase Right, Etc. (a) Unless the Company shall have theretofore called for redemption all of the outstanding Outstanding Securities, on or before the date that is 30 Business Days after the occurrence of a Change in Control, the Company shall give notice to the Trustee, the Paying Agent and all Holders of Securities, in the manner provided in this Section 3.4, a notice containing the information required pursuant Outstanding Securities and to the following provisions of this Section 3.4(a) Trustee (the "Company Notice") (i) on or before the 20th Business Day prior to the Repurchase Date or, in the event of a Fundamental Change arising from a Change of Control, the anticipated Effective Date (but in no event earlier than 45 days prior to the Repurchase Date or anticipated Effective Date, as the case may be), and (ii) within 15 Business Days after the Company knows or reasonably should know of the occurrence of a Fundamental the Change that arises in Control and of the repurchase right set forth herein arising as a result of any Termination of Trading. Prior to or concurrently with the delivery of any Company Notice, the Company will issue a press release or publish such information on the Company's then existing website including the information required to be included in such Company Notice hereunder. The Company shall also deliver a copy of any Company Notice to the Trustee. At the request and expense of the Company on or before the fifth Business Day prior to the date on which the Company Notice is to be mailed, the Trustee shall provide the Company Notice to the Holders in accordance with the provisions of this Indenturethereof. Each Company Notice shall state:
(i) the Repurchase Date or date of such Change in Control and, briefly, the Fundamental events causing such Change Repurchase Date, as the case may be,in Control;
(ii) the date by which the repurchase right Change in Control Purchase Notice (as defined below) must be exercised,delivered;
(iii) the Repurchase Price or Date;
(iv) the Fundamental Change Repurchase Price, as the case may be, and whether the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, shall be paid by the Company in cash or by delivery of shares of Common Stock, or a specified combination thereof and the percentage of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, that will be paid in shares of Common Stock (which indication shall be irrevocable, subject to the satisfaction (or waiver) of the conditions set forth in Section 3.3),
(iv) if the notice relates to the occurrence of a Fundamental Change, the events causing the Fundamental Change and the date of the Fundamental Change,;
(v) that Securities with respect to which a Holder gives a Repurchase Notice or Fundamental Change Repurchase Notice may be converted only if the Holder withdraws the Repurchase Notice or Fundamental Change Repurchase Notice as to such Securities in accordance with the terms of this Indenture,
(vi) a description of the procedure that a Holder must follow to exercise a repurchase right, and ;
(vi) the procedures for withdrawing a Change in Control Purchase Notice;
(vii) the place or places where such Securities are to be surrendered for payment of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, and accrued but unpaid interest (and Liquidated Damages), if any, to, but excluding, the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be,
(vii) that on the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be, the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, and accrued but unpaid interest (and Liquidated Damages), if any, to, but excluding, the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be, will become due and payable upon each such Security designated by the Holder to be repurchased, and that interest thereon shall cease to accrue on and after said date,for conversion;
(viii) briefly, the Conversion Price then in effect,conversion rights of Holders of Securities;
(ix) the place or places that the Security certificate (including the Election of Holder to Require Repurchase attached Conversion Rate and any adjustments thereto) and the Repurchase Notice (as defined below) shall be delivered, ; and, if the Security is a Restricted Security, the place or places that the Transfer Certificate in the form set forth in Exhibit C, required by Section 2.12 shall be delivered,
(x) that Holders who want to convert Securities must satisfy the name and address of the Paying Agent and Conversion Agent, and
(xi) if the notice relates to a Fundamental Change, the estimated amount of any Make-Whole Premium and the respective percentages of such Make-Whole Premium that will be paid (as contemplated by Section 6.1(b)) in shares of Common Stock and in cash (which indication shall be irrevocable), subject to the satisfaction (or waiver) of the conditions requirements set forth in Section 6.1(c)the Securities. Promptly after giving the Company Notice to the Holders of Outstanding Securities and to the Trustee, in the event that Company shall cause a Holder should, in lieu of electing to have Securities repurchased on the Fundamental Change Repurchase Date, elect to convert such Securities during the Fundamental Change Conversion Period, and
(xii) any other information to be included therein pursuant to Section 6.1. No failure copy of the Company Notice to give the foregoing notices be published in The Wall Street Journal or defect therein shall limit any Holder's right to exercise a repurchase right or affect the validity another daily newspaper of the proceedings for the repurchase of Securities. If any of the foregoing provisions or other provisions of this Article III are inconsistent with applicable law, such law shall governnational circulation.
(b) If any Senior Indebtedness is outstanding at the time of the occurrence of a Change in Control, and such Senior Indebtedness prohibits by its terms the Company's repurchase of its Securities upon the occurrence of a Change in Control, the Company shall prior to giving the Company Notice either:
(i) repay in full all obligations and terminate all commitments under or in respect of all such Senior Indebtedness or offer to repay in full all obligations and terminate all commitments under or in respect of all such Senior Indebtedness and repay such Senior Indebtedness owed to each holder thereof who has accepted such offer; or
(ii) obtain the requisite consents under all such Senior Indebtedness to permit the Company to repurchase the Securities in accordance herewith.
(c) To exercise a repurchase right pursuant to Section 3.1 or Section 3.2right, a Holder shall must deliver to the Trustee or a Paying Agent at an office or agency maintained by the Company for such purpose in the Borough of Manhattan, The City of New York, prior to the close of business on or before the Repurchase Date, (i) written notice (in the case of a repurchase pursuant to Section 3.1, a "Repurchase Notice" and, in the case of a repurchase pursuant to Section 3.2, a "Fundamental Change Repurchase Notice") of the Holder's exercise of such rightright (the "Change in Control Purchase Notice"), which notice shall set forth (A) the name of the Holder, (B) the certificate numbers of the Securities with respect to which the repurchase right is being exercised, (C) the principal amount of the Securities to be repurchased (and, if any Security is to be repurchased in part, the portion of the principal amount thereof to be repurchased (repurchased, which portion must shall be in principal amounts of $1,000 or a whole multiple integral multiples of $1,000) and the name of the Person in which the portion thereof to remain outstanding after such repurchase is to be registered), if certificated, the certificate numbers of the Securities to be repurchased, and (D) a statement that an election to exercise the repurchase right is being made thereby pursuant to the terms and conditions specified in applicable provisions of the Securities and (ii) surrender the Indenture is being made thereby, and, Securities subject to the Change in Control Purchase Notice.
(d) Unless the event that any portion of Company has elected to pay the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, shall be paid in by delivery of shares of Common Stock, on or prior to the Repurchase Date the Company shall deposit with the Trustee or with the Paying Agent (or, if the Company is acting as its own Paying Agent, segregate and hold in trust as provided in Section 9.03) an amount of money sufficient to pay the Repurchase Price of the Securities that are to be repaid on the Repurchase Date. On the Repurchase Date, the Trustee, a Paying Agent (or, if the Company is acting as its own Paying Agent, the Company) shall repurchase all such Securities validly tendered prior to such date. In the event that a Holder has previously delivered a Change in Control Purchase Notice, but failed to surrender the Security with respect to which such Change in Control Purchase Notice relates, then so long as either (i) the Company has elected to pay the Repurchase Price by delivery of shares of Common Stock or (ii) the Trustee or the Paying Agent holds (or, if the Company is acting as its own Paying Agent, the Company segregates and holds in trust as provided in Section 9.03) money sufficient to pay the Repurchase Price in respect of such Security, then such Security shall cease to be Outstanding for the purposes of this Indenture on the Repurchase Date and all rights of the Holder thereof other than the right to receive the Repurchase Price shall terminate.
(e) If any Security (or portion thereof) surrendered for repurchase shall not have been repurchased on the Business Day following the Repurchase Date, the Repurchase Price in respect of such Security shall, until paid, bear interest from the Business Day following the Repurchase Date at the rate borne by the Security and such Security shall remain convertible into Common Stock until the Repurchase Price and any such accrued interest shall have been paid or duly provided for.
(f) Any Security that is to be repurchased only in part shall be surrendered to the Trustee or any such Paying Agent (or if the Company is acting as its own Paying Agent, the Company) and the Company shall execute, and the Trustee shall authenticate and deliver to the Holder of such Security without service charge, a new Security or Securities, containing identical terms and conditions, each in an authorized denomination in aggregate principal amount equal to and in exchange for the portion of the principal of the Security so surrendered that was not repurchased.
(g) Any Holder that has delivered a Change in Control Purchase Notice shall have the right to withdraw such notice by delivery of a written notice of withdrawal to the Trustee or any such Paying Agent prior to the close of business on the Business Day immediately preceding the Repurchase Date. The notice of withdrawal shall state the principal amount and the certificate numbers of the Securities as to which the withdrawal notice relates and the principal amount, if any, that remains subject to the Change in Control Purchase Notice. A Security in respect of which a Holder has exercised its right to require repurchase upon a Change in Control may thereafter be converted into Common Stock only if, and at such time as, such Holder withdraws its Change in Control Purchase Notice in accordance with the preceding sentence.
(h) Any issuance of shares of Common Stock in respect of the Repurchase Price shall be deemed to have been effected immediately prior to the close of business on the Repurchase Date and the person or persons in whose name or names (with addresses) in which the any certificate or certificates for shares of Common Stock shall be issuedissuable upon such repurchase shall be deemed to have become on the Repurchase Date the holder or holders of record of the shares represented thereby.
(i) No fractional shares of Common Stock or scrip representing fractional shares shall be issued upon repurchase of Securities. If more than one Security shall be repurchased from the same Holder and the Repurchase Price shall be payable in shares of Common Stock, the number of full shares that shall be issued upon repurchase shall be computed on the basis of the aggregate principal amount of the Securities (or specified portions thereof to the extent permitted hereby) so repurchased from such Holder. If any fractional share of stock otherwise would be issuable upon repurchase of any Security or Securities, the Company shall make an adjustment therefor by paying to the Holder thereof an amount of cash calculated at the price per share at which the Common Stock is valued for purposes of Section 11.01.
(j) The issue of stock certificates on repurchase of Securities shall be made without charge to the Holder of Securities being repurchased for any tax in respect of the issue thereof. The Company shall not, however, be required to pay any tax that may be payable in respect of any transfer involved in the issue and delivery of stock in any name other than that of the Holder of any Security repurchased, and the Company shall not be required to issue or deliver any such stock certificate unless and until the person or persons requesting the issue thereof shall have paid to the Company the amount of such tax or shall have established to the satisfaction of the Company that such tax has been paid.
(k) Notwithstanding anything to the contrary in this Section 11.03, the Company shall not be required to give the Company Notice following the occurrence of a Change in Control if, in the manner, at the time and otherwise in compliance with the requirements set forth herein regarding the Company's obligation to offer to repurchase the Outstanding Securities following the occurrence of a Change in Control, (A) another Person makes an offer to repurchase the Outstanding Securities by giving a notice containing the information set forth in clauses (i) through (x) of Section 11.03(a) to the Holders of all Outstanding Securities and to the Trustee, (B) such Person repurchases all Outstanding Securities validly tendered and not withdrawn, and (iiC) such Person makes all payments with respect thereto. This Section 11.03(k) shall not relieve the Securities to which the Repurchase Notice Company of any of its obligations under this Indenture or Fundamental Change Repurchase Notice relates at any time after delivery of the Repurchase Notice or the Fundamental Change Repurchase Notice, as the case may be (together with all necessary endorsements), at the offices of the Paying Agent, such delivery being a condition to receipt by the Holder of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, thereofSecurity; provided, however, that such Repurchase Price or Fundamental Change Repurchase Priceif another Person makes the offer to repurchase Outstanding Securities as set forth in this Section, as the case may be, Company shall not be so paid pursuant obligated to this Section 3.4(b) only if give the Securities so delivered to the Paying Agent shall conform in all respects to the description thereof in the related Repurchase Notice or Fundamental Change Repurchase Company Notice. In the case of a repurchase right pursuant to Section 3.1 and Section 3.2, such delivery shall be at any time from the opening of business on the date that is 20 Business Days prior to the Repurchase Date until the close of business on the second Business Day prior to the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be, subject to extension to comply with applicable law. Owners of beneficial interests in Global Securities shall provide a Repurchase Notice or Fundamental Change Repurchase Notice in accordance with the Applicable Procedures of the Depositary.
Appears in 1 contract
Samples: Indenture (Interliant Inc)
Notices; Method of Exercising Repurchase Right, Etc. (a) Unless the Company shall have theretofore called for redemption all of the outstanding Outstanding Securities, on or before the 15th day after the occurrence of a Change in Control, the Company shall give to or, at the written request of the Company, on or before the tenth (10th) day after receipt of such request, the Trustee, at the Paying Agent and Company's expense, shall give notice to all Holders of Securities, in the manner provided in this Section 3.4, a notice containing the information required pursuant to the following provisions of this Section 3.4(a) Securities (the "Company Notice") (i) on or before the 20th Business Day prior to the Repurchase Date or, in the event of a Fundamental Change arising from a Change of Control, the anticipated Effective Date (but in no event earlier than 45 days prior to the Repurchase Date or anticipated Effective Date, as the case may be), and (ii) within 15 Business Days after the Company knows or reasonably should know of the occurrence of a Fundamental the Change that arises in Control and of the repurchase right set forth herein arising as a result thereof. If the Company gives such notice of any Termination of Trading. Prior to or concurrently with the delivery of any Company Noticea repurchase right, the Company will issue a press release or publish such information on the Company's then existing website including the information required to be included in such Company Notice hereunder. The Company shall also deliver a copy of any Company Notice such notice of a repurchase right to the Trustee. At the request and expense of the Company on or before the fifth Business Day prior to the date on which the Company Notice is to be mailed, the Trustee shall provide the Company Notice to the Holders in accordance with the provisions of this Indenture. Each Company Notice shall state:
(i) the Repurchase Date or date of such Change in Control and, briefly, the Fundamental events causing such Change Repurchase Date, as the case may be,in Control;
(ii) the date by which the repurchase right Change in Control Purchase Notice (as defined below) must be exercised,delivered;
(iii) the Repurchase Price or Date;
(iv) the Fundamental Change Repurchase Price, as the case may be, and whether the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, shall be paid by the Company in cash or by delivery of shares of Common Stock, or a specified combination thereof and the percentage of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, that will be paid in shares of Common Stock (which indication shall be irrevocable, subject to the satisfaction (or waiver) of the conditions set forth in Section 3.3),
(iv) if the notice relates to the occurrence of a Fundamental Change, the events causing the Fundamental Change and the date of the Fundamental Change,;
(v) that Securities with respect to which a Holder gives a Repurchase Notice or Fundamental Change Repurchase Notice may be converted only if the Holder withdraws the Repurchase Notice or Fundamental Change Repurchase Notice as to such Securities in accordance with the terms of this Indenture,
(vi) a description of the procedure that which a Holder must follow to exercise a repurchase right, and ;
(vi) the procedures for withdrawing a Change in Control Purchase Notice;
(vii) the place or places where such Securities are to be surrendered for payment of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, and accrued but unpaid interest (and Liquidated Damages)interest, if any, to, but excluding, the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be,
(vii) that on the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be, the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, and accrued but unpaid interest (and Liquidated Damages), if any, to, but excluding, the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be, will become due and payable upon each such Security designated by the Holder to be repurchased, and that interest thereon shall cease to accrue on and after said date,;
(viii) briefly, the Conversion Price then in effect,conversion rights of Holders of Securities;
(ix) the place or places that conversion price and any adjustments thereto, the Security certificate (including date on which the Election of Holder right to Require Repurchase attached thereto) convert the Securities will terminate and the Repurchase Notice (as defined below) shall places where such Securities may be delivered, and, if the Security is a Restricted Security, the place or places that the Transfer Certificate in the form set forth in Exhibit C, required by Section 2.12 shall be delivered,surrendered for conversion;
(x) that Holders who want to convert Securities must satisfy the name and address of requirements set forth in the Paying Agent and Conversion Agent, Securities; and
(xi) if the notice relates to a Fundamental Change, the estimated amount of any Make-Whole Premium and the respective percentages of such Make-Whole Premium that will be paid (as contemplated by Section 6.1(b)) in shares of Common Stock and in cash (which indication shall be irrevocable), subject to the satisfaction (or waiver) of the conditions set forth in Section 6.1(c), in the event that a Holder should, in lieu of electing to have Securities repurchased on the Fundamental Change Repurchase Date, elect to convert such Securities during the Fundamental Change Conversion Period, and
(xii) any other information to be included therein pursuant to Section 6.1. No no failure of the Company to give the foregoing notices notice or defect therein shall limit any Holder's right to exercise a repurchase right or affect the validity of the proceedings for the repurchase of the Securities. If any of the foregoing provisions or other provisions of this Article III are inconsistent with applicable law, such law shall govern.
(b) To exercise a repurchase right pursuant to Section 3.1 or Section 3.2right, a Holder shall deliver to the Paying Agent (i) or an office or agency maintained by the Company for such purpose in the Borough of Manhattan, The City of New York, prior to the close of business on or before the Repurchase Date written notice (in the case of a repurchase pursuant to Section 3.1, a "Repurchase Notice" and, in the case of a repurchase pursuant to Section 3.2, a "Fundamental Change Repurchase Notice") of the Holder's exercise of such rightright (the "Change in Control Purchase Notice"), which notice shall set forth (i) the name of the Holder, the principal amount of the Securities to be repurchased (and, if any Security is to be repurchased in part, the portion of the principal amount thereof to be repurchased (which portion must be in principal amounts of $1,000 or a whole multiple of $1,000) and the name of the Person in which the portion thereof to remain outstanding after such repurchase is to be registered), if certificated, the certificate numbers of the Securities to be repurchased, ) and a statement that an election to exercise the repurchase right is being made thereby pursuant to the terms and conditions specified in applicable provisions of the Securities and the Indenture is being made therebySecurities, and, in the event that any portion of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, shall be paid in shares of Common Stock, the name or names (with addresses) in which the certificate or certificates for shares of Common Stock shall be issued, and (ii) the certificate numbers of the Securities with respect to which the Repurchase Notice repurchase right is being exercised.
(c) In the event a repurchase right shall be exercised in accordance with the terms hereof, the Company shall pay or Fundamental Change Repurchase Notice relates at any time after delivery of the Repurchase Notice or the Fundamental Change Repurchase Notice, as the case may cause to be (together with all necessary endorsements), at the offices of paid to the Paying Agent, such delivery being a condition to receipt by the Holder of Agent the Repurchase Price in cash or the Fundamental Change Repurchase Priceshares of Common Stock, as provided above, for payment to the case may beHolder on the Repurchase Date, payable with respect to the Securities (or portion thereof) as to which the repurchase right has been exercised; provided, however, that such Security for which a repurchase right has been exercised has been delivered to the Paying Agent at any time after the notice of exercise of a repurchase right shall have been given. Payment of the Repurchase Price for such Security shall be made promptly following the later of the Business Day following the Repurchase Date and time of delivery of the Security. If the Paying Agent holds money sufficient to pay the Repurchase Price on the Business Day following the Repurchase Date, then, immediately after the Repurchase Date, such Security shall cease to be outstanding and interest will cease to accrue and will be deemed paid regardless of whether such Security has been delivered to the Paying Agent, and all other rights of the Holder shall terminate (other than the right of such Holder to receive the Repurchase Price upon delivery of such Security).
(d) On or Fundamental Change prior to the Repurchase PriceDate, the Company shall deposit with the Trustee or with a Paying Agent (or, if the Company is acting as its own Paying Agent, segregate and hold in trust as provided in Section ? of the Indenture) an amount of money sufficient to pay the Repurchase Price of the Securities which are to be repaid on the Repurchase Date.
(e) If any Security (or portion thereof) surrendered for repurchase shall not be so paid on the Business Day following the Repurchase Date, the principal amount of such Security (or portion thereof, as the case may be) shall, until paid, bear interest from the Repurchase Date at the rate of % per annum, and each Security shall remain convertible into Common Stock in accordance with Article 13 herein until the principal of such Security (or portion thereof, as the case may be) shall have been paid or duly provided for.
(f) Any Security which is to be repurchased only in part shall be so paid pursuant surrendered to this Section 3.4(b) only the Trustee (with, if the Securities Company or the Trustee so requires, due endorsement by, or a written instrument of transfer in form satisfactory to the Company and the Trustee duly executed by, the Holder thereof or his attorney duly authorized in writing), and the Company shall execute, and the Trustee shall authenticate and deliver to the Holder of such Security without service charge, a new Security or Securities, containing identical terms and conditions, each in an authorized denomination in aggregate principal amount equal to and in exchange for the portion of the principal of the Security so surrendered that was not repurchased.
(g) Any Holder that has delivered to the Trustee a Change in Control Purchase Notice shall have the right to withdraw such notice at any time prior to the close of business on the Repurchase Date by delivery of a written notice of withdrawal to the Paying Agent shall conform in all respects prior to the description thereof in close of business on such date. The notice of withdrawal shall state the related Repurchase Notice or Fundamental Change Repurchase Notice. In principal amount and the case certificate numbers of the Securities as to which the withdrawal notice relates and the principal amount, if any, which remains subject to the notice of exercise of a repurchase right pursuant right. A Security in respect of which a Holder has exercised its option to Section 3.1 and Section 3.2, require repurchase upon a Change in Control may thereafter be converted into Common Stock only if such delivery Holder withdraws its notice in accordance with the preceding sentence.
(h) Any issuance of shares of Common Stock in respect of the Repurchase Price shall be deemed to have been effected immediately prior to the close of business on the Repurchase Date and the person or persons in whose name or names any certificate or certificates for shares of Common Stock shall be issuable upon such repurchase shall be deemed to have become on the Repurchase Date the holder or holders of record of the shares represented thereby; provided, however, that any surrender for repurchase on a date when the stock transfer books of the Company shall be closed shall constitute the person or persons in whose name or names the certificate or certificates for such shares are to be issued as the record holder or holders thereof for all purposes at any time from the opening of business on the date that is 20 Business Days next succeeding day on which such stock transfer books are open. No payment or adjustment shall be made for dividends or distributions on any Common Stock issued upon repurchase of any Security declared prior to the Repurchase Date Date.
(i) No fractional shares of Common Stock or scrip representing fractional shares shall be issued upon repurchase of Securities. If more than one Security shall be repurchased from the same holder and the Repurchase Price shall be payable in shares of Common Stock, the number of full shares which shall be issued upon repurchase shall be computed on the basis of the aggregate principal amount of the Securities (or specified portions thereof to the extent permitted hereby) so repurchased. If any fractional share of stock otherwise would be issuable upon repurchase of any Security or Securities, the Company shall make an adjustment therefor in cash at the current market value thereof to the Holder of Securities. For these purposes, the current market value of a share of Common Stock shall be the Closing Price on the first Trading Day immediately preceding the Repurchase Date.
(j) The issue of stock certificates on repurchase of Securities shall be made without charge to the Holder of Securities being repurchased for any tax in respect of the issue thereof. The Company shall not, however, be required to pay any tax which may be payable in respect of any transfer involved in the issue and delivery of stock in any name other than that of the Holder of any Security repurchased, and the Company shall not be required to issue or deliver any such stock certificate unless and until the close of business on person or persons requesting the second Business Day prior issue thereof shall have paid to the Repurchase Date Company the amount of such tax or shall have established to the Fundamental Change Repurchase Date, as the case may be, subject to extension to comply with applicable law. Owners of beneficial interests in Global Securities shall provide a Repurchase Notice or Fundamental Change Repurchase Notice in accordance with the Applicable Procedures satisfaction of the DepositaryCompany that such tax has been paid.
Appears in 1 contract
Notices; Method of Exercising Repurchase Right, Etc. (a) Unless the Company shall have theretofore called for redemption all of the outstanding Outstanding Securities, on or before the 30th day after the occurrence of a Change of Control, the Company or, at the request and expense of the Company, the Trustee, shall give to the Trustee, the Paying Agent and all Holders of Securities, in the manner provided in this Section 3.41.6, a notice containing the information required pursuant to the following provisions of this Section 3.4(a) (the "Company Notice") (i) on or before the 20th Business Day prior to the Repurchase Date or, in the event of a Fundamental Change arising from a Change of Control, the anticipated Effective Date (but in no event earlier than 45 days prior to the Repurchase Date or anticipated Effective Date, as the case may be), and (ii) within 15 Business Days after the Company knows or reasonably should know of the occurrence of a Fundamental the Change that arises of Control and of the repurchase right set forth herein arising as a result of any Termination of Trading. Prior to or concurrently with the delivery of any Company Notice, the Company will issue a press release or publish such information on the Company's then existing website including the information required to be included in such Company Notice hereunderthereof. The Company shall also deliver a copy of any Company Notice such notice of a repurchase right to the Trustee. At the request and expense Each notice of the Company on or before the fifth Business Day prior to the date on which the Company Notice is to be mailed, the Trustee shall provide the Company Notice to the Holders in accordance with the provisions of this Indenture. Each Company Notice a repurchase right shall state:
(i1) the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be,
(ii2) the date by which the repurchase right must be exercised,
(iii3) the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, and whether the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, shall be paid by the Company in cash or by delivery of shares of Common Stock, or a specified combination thereof and the percentage of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, that will be paid in shares of Common Stock (which indication shall be irrevocable, subject to the satisfaction (or waiver) of the conditions set forth in Section 3.3),
(iv) if the notice relates to the occurrence of a Fundamental Change, the events causing the Fundamental Change and the date of the Fundamental Change,
(v) that Securities with respect to which a Holder gives a Repurchase Notice or Fundamental Change Repurchase Notice may be converted only if the Holder withdraws the Repurchase Notice or Fundamental Change Repurchase Notice as to such Securities in accordance with the terms of this Indenture,
(vi4) a description of the procedure that which a Holder must follow to exercise a repurchase right, and the place or places where such Securities Securities, together with all coupons appertaining thereto, if any, maturing after the Repurchase Date, are to be surrendered for payment of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, and accrued but unpaid interest (and Liquidated Damages)interest, if any, to, but excluding, the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be,
(vii5) that on the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be, the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, and accrued but unpaid interest (and Liquidated Damages)interest, if any, to, but excluding, the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be, will become due and payable upon each such Security designated by the Holder to be repurchased, and that interest thereon shall cease to accrue on and after said date,
(viii6) the Conversion Price then in effect,, the date on which the right to convert the principal amount of the Securities to be repurchased will terminate and the place or places where such Securities, together with all unmatured coupons appertaining thereto, may be surrendered for conversion, and
(ix7) the place or places that the Security certificate (including the Election of Holder to Require Repurchase attached thereto) and the Repurchase Notice (as defined below) required by Section 2.2 shall be delivered, andand the form of such certificate. In addition, if at least two Business Days preceding the Security is a Restricted SecurityRepurchase Date, the place or places that the Transfer Certificate in the form set forth in Exhibit C, required by Section 2.12 Company shall be delivered,
(x) the name and address give to all Holders of the Paying Agent Securities and Conversion Agent, and
(xi) if the notice relates to a Fundamental Change, the estimated amount of any Make-Whole Premium and the respective percentages of such Make-Whole Premium that will be paid (as contemplated by Section 6.1(b)) in shares of Common Stock and in cash (which indication shall be irrevocable), subject to the satisfaction (or waiver) of the conditions set forth in Section 6.1(c)coupons, in the event that manner provided in Section 1.6, notice specifying whether the Repurchase Price will be payable in cash or shares of common stock and shall deliver a Holder should, in lieu copy of electing such notice to have Securities repurchased on the Fundamental Change Repurchase Date, elect to convert such Securities during the Fundamental Change Conversion Period, and
(xii) any other information to be included therein pursuant to Section 6.1Trustee. No failure of the Company to give the foregoing notices or defect therein shall limit any Holder's right to exercise a repurchase right or affect the validity of the proceedings for the repurchase of Securities. If any of the foregoing provisions or other provisions of this Article III are inconsistent with applicable law, such law shall govern.
(b) To exercise a repurchase right pursuant to Section 3.1 or Section 3.2right, a Holder shall deliver to the Trustee or any Paying Agent on or before the 30th day after the date of the Company Notice (i) written notice (in the case of a repurchase pursuant to Section 3.1, a "Repurchase Notice" and, in the case of a repurchase pursuant to Section 3.2, a "Fundamental Change Repurchase Notice") of the Holder's exercise of such right, which notice shall set forth the name of the Holder, the principal amount of the Securities to be repurchased (and, if any Registered Security is to repurchased in part, the serial number thereof, the portion of the principal amount thereof to be repurchased (which portion must be in principal amounts of $1,000 or a whole multiple of $1,000) and the name of the Person in which the portion thereof to remain outstanding Outstanding after such repurchase is to be registered), if certificated, the certificate numbers of the Securities to be repurchased, ) and a statement that an election to exercise the repurchase right pursuant to the terms and conditions specified in the Securities and the Indenture is being made thereby, and, in the event that any portion of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, shall be paid in shares of Common Stockcommon stock, the name or names (with addresses) in which the certificate or certificates for shares of Common Stock common stock shall be issued, and (ii) the Securities with respect to which the Repurchase Notice or Fundamental Change Repurchase Notice relates at any time after delivery of the Repurchase Notice or the Fundamental Change Repurchase Noticerepurchase right is being exercised, as the case may be (together with all necessary endorsements)coupons, at the offices of the Paying Agentif any, such delivery being a condition to receipt by the Holder of appertaining thereto maturing after the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, thereofDate; provided, however, that such Repurchase Price or Fundamental Change Repurchase Price, as the case may be, Bearer Securities shall be so paid pursuant delivered only to this an office of a Paying Agent located outside the United States except in the limited circumstances described in Section 3.4(b) only if 10.2. Such written notice shall be irrevocable, except that the right of the Holder to convert the Securities so delivered with respect to which the Paying Agent shall conform in all respects to the description thereof in the related Repurchase Notice or Fundamental Change Repurchase Notice. In the case of a repurchase right pursuant to Section 3.1 and Section 3.2, such delivery is being exercised shall be at any time from the opening of business on the date that is 20 Business Days prior to the Repurchase Date continue until the close of business on the second Business Trading Day preceding the Repurchase Date.
(c) In the event a repurchase right shall be exercised in accordance with the terms hereof, the Company shall pay or cause to be paid to the Trustee or the Paying Agent in London, England, the Repurchase Price in cash or shares of common stock, as provided above, for payment to the Holder on the Repurchase Date or, if shares of common stock are to be paid, as promptly after the Repurchase Date as practicable, together with accrued and unpaid interest to the Repurchase Date payable with respect to the Securities as to which the purchase right has been exercised; provided, however, that installments of interest that mature on or prior to the Repurchase Date shall be payable in cash, in the case of Registered Securities, to the Holders of such Securities, or one or more Predecessor Securities, registered as such at the close of business on the relevant Regular Record Date and, in the case of Bearer Securities, to the holder of the coupon with respect thereto, in each case according to the terms and provisions of Article Three; and provided, further, that Bearer Securities and coupons shall be so payable only at an office or agency outside the United States (except as otherwise provided in the form of Bearer Security set forth in Section 2.2(a)).
(d) If any Bearer Security surrendered for repurchase shall not be accompanied by all appurtenant coupons maturing after the Repurchase Date, such Security may be paid after deducting from the Repurchase Price an amount equal to the face amount of all such missing coupons or the Fundamental Change surrender of such missing coupons or coupon may be waived by the Company and the Trustee, if there be furnished to them such security or indemnity as they may require to save each of them and any Paying Agent harmless. If thereafter the Holder of such Bearer Security shall surrender to any Paying Agent any such missing coupon in respect of which a deduction shall have been made from the Repurchase Price, if any, such Holder shall be entitled to receive the amount so deducted; provided, however, that interest represented by coupons shall be payable only upon presentation and surrender of those coupons at an office or agency located outside of the United States (except as otherwise provided in the form of Bearer Security set forth in Section 2.2(a)).
(e) If any Security (or portion thereof) surrendered for repurchase shall not be so paid on the Repurchase Date, the principal amount of such Security (or portion thereof, as the case may be) shall, subject until paid, bear interest to extension the extent permitted by applicable law from the Repurchase Date at the rate of 4-1/2% per annum, and each Security shall remain convertible into Common Stock until the principal of such Security (or portion thereof, as the case may be) shall have been paid or duly provided for. If payment is made or duly provided for on the Repurchase Date, from and after the Repurchase Date the Securities surrendered for repurchase shall cease to comply with accrue interest and coupons appertaining to any Bearer Security surrendered for repurchase shall, except as provided in Sections 14.2(c) and (d), be void.
(f) Any Registered Security which is to be repurchased only in part shall be surrendered to the Trustee (with, if the Company or the Trustee so requires, due endorsement by, or a written instrument of transfer in form satisfactory to the Company and the Trustee duly executed by, the Holder thereof or his attorney duly authorized in writing), and the Company shall execute, and the Trustee shall authenticate and make available for delivery to the Holder of such Registered Security without service charge, a new Registered Security or Registered Securities, containing identical terms and conditions, each in an authorized denomination in aggregate principal amount equal to and in exchange for the unrepurchased portion of the principal of the Registered Security so surrendered.
(g) Any issuance of shares of common stock in respect of the Repurchase Price shall be deemed to have been effected immediately prior to the close of business on the Repurchase Date and the Person or Persons in whose name or names any certificate or certificates for shares of Common Stock shall be issuable upon such repurchase shall be deemed to have become on the Repurchase Date the holder or holders of record of the shares represented thereby; provided, however, that any surrender for repurchase on a date when the stock transfer books of the Company shall be closed shall constitute the Person or Persons in whose name or names the certificate or certificates for such shares are to be issued as the recordholder or holders thereof for all purposes at the opening of business on the next succeeding day on which such stock transfer books are open. No payment or adjustment shall be made for dividends or distributions on any common stock issued upon repurchase of any Security declared prior to the Repurchase Date.
(h) No fractions of shares shall be issued upon repurchase of Securities. If more than one Security shall be repurchased from the same Holder and the Repurchase Price shall be payable in shares of common stock, the number of full shares which shall be issuable upon such repurchase shall be computed on the basis of the aggregate principal amount of the Securities so repurchased. Instead of any fractional share of common stock which would otherwise be issuable on the repurchase of any Security or Securities, the Company will deliver to the applicable lawHolder its check for the current market value of such fractional share. Owners The current market value of beneficial interests in Global a fraction of a share is determined by multiplying the current market price of a full share by the fraction, and rounding the result to the nearest cent. For purposes of this Section, the current market price of a share of common stock is the Closing Price Per Share of the Common Stock on the Trading Day immediately preceding the Repurchase Date.
(i) Any issuance and delivery of certificates for shares of common stock on repurchase of Securities shall provide a Repurchase Notice be made without charge to the Holder of Securities being repur- chased for such certificates or Fundamental Change Repurchase Notice for any tax or duty in accordance with the Applicable Procedures respect of the Depositaryissuance or delivery of such certificates or the securities represented thereby; provided, however, that the Company shall not be required to pay any tax or duty which may be payable in respect of (i) income of the Holder or (ii) any transfer involved in the issuance or delivery of certificates for shares of Common Stock in a name other than that of the Holder of the Securities being repurchased, and no such issuance or delivery shall be made unless and until the Person requesting such issuance or delivery has paid to the Company the amount of any such tax or duty or has established, to the satisfaction of the Company, that such tax or duty has been paid.
(j) If any shares of Common Stock to be issued upon repurchase of Securities hereunder require registration with or approval of any governmental authority under any federal or state law before such shares may be validly issued or delivered upon repurchase, the Company covenants that it will in good faith and as expeditiously as possible endeavor to secure such registration or approval, as the case may be; provided, however, that nothing in this Section shall be deemed to affect in any way the obligations of the Company to repurchase Securities as provided in this Article and if such registration is not completed or does not become effective or such approval is not obtained prior to the Repurchase Date, the Repurchase Price shall be paid in cash.
(k) The Company covenants that all shares of Common Stock which may be issued upon repurchase of Securities will upon issue be duly and validly issued and fully paid and non-assessable.
Appears in 1 contract
Samples: Indenture (United Waste Systems Inc)
Notices; Method of Exercising Repurchase Right, Etc. (a1) Unless the Company shall have theretofore called for redemption all of the outstanding Outstanding Securities, on or before the 30th day after the occurrence of a Change in Control, the Company or, at the request (and expense) of the Company on or before the 15th day after such occurrence, the Trustee, shall give to the Trustee, the Paying Agent and all Holders of Securities, in the manner provided in this Section 3.41.6, a notice containing the information required pursuant to the following provisions of this Section 3.4(a) (the "Company Notice") (i) on or before the 20th Business Day prior to the Repurchase Date or, in the event of a Fundamental Change arising from a Change of Control, the anticipated Effective Date (but in no event earlier than 45 days prior to the Repurchase Date or anticipated Effective Date, as the case may be), and (ii) within 15 Business Days after the Company knows or reasonably should know of the occurrence of a Fundamental the Change that arises of Control and of the repurchase right set forth herein arising as a result of any Termination of Trading. Prior to or concurrently with the delivery of any Company Notice, thereof and the Company will shall issue a press release or publish such information on the Company's then existing website Press Release to Reuters Economic Services and Bloomberg Business News, including the information required to be included in such Company Notice hereunder. The Company shall also deliver a copy of any such Company Notice to the Trustee. At the request and expense of the Company on or before the fifth Business Day prior to the date on which the Company Notice is to be mailed, the Trustee shall provide the Company Notice to the Holders in accordance with the provisions of this Indenture. Each Company Notice shall state:
(i) the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be,
(ii) the date by which the repurchase right must be exercised,
(iii) the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, and whether the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, shall be paid by the Company in cash or by delivery of shares of Common Stock, or a specified combination thereof and the percentage of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, that will be paid in shares of Common Stock (which indication shall be irrevocable, subject to the satisfaction (or waiver) of the conditions set forth in Section 3.3),
(iv) if the notice relates to the occurrence of a Fundamental Change, the events causing the Fundamental Change and the date of the Fundamental Change,
(v) that Securities with respect to which a Holder gives a Repurchase Notice or Fundamental Change Repurchase Notice may be converted only if the Holder withdraws the Repurchase Notice or Fundamental Change Repurchase Notice as to such Securities in accordance with the terms of this Indenture,
(vi) a description of the procedure that a Holder must follow to exercise a repurchase right, and the place or places where such Securities are to be surrendered for payment of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, and accrued but unpaid interest (and including Liquidated Damages, if any), if any, to, but excluding, any to the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be,
(viiv) that on the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be, the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, and accrued but unpaid interest (and including Liquidated Damages, if any), if any, to, but excluding, any to the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be, will become due and payable upon each such Security designated by the Holder to be repurchased, and that interest thereon shall cease to accrue on and after said date,
(viiivi) the Conversion Price Rate then in effect,, the date on which the right to convert the principal amount of the Securities to be repurchased will terminate and the place or places where such Securities may be surrendered for conversion, and
(ixvii) the place or places that the Security certificate (including with the Election of Holder to Require Repurchase attached thereto) and the Repurchase Notice (as defined below) specified in Section 2.2 shall be delivered, and, and if the Security is a Restricted Security, Securities Certificate the place or places that the Transfer Surrender Certificate in the form set forth in Exhibit C, required by Section 2.12 13.3(9) shall be delivered,
(x) the name and address of the Paying Agent and Conversion Agent, and
(xi) if the notice relates to a Fundamental Change, the estimated amount of any Make-Whole Premium and the respective percentages of such Make-Whole Premium that will be paid (as contemplated by Section 6.1(b)) in shares of Common Stock and in cash (which indication shall be irrevocable), subject to the satisfaction (or waiver) of the conditions set forth in Section 6.1(c), in the event that a Holder should, in lieu of electing to have Securities repurchased on the Fundamental Change Repurchase Date, elect to convert such Securities during the Fundamental Change Conversion Period, and
(xii) any other information to be included therein pursuant to Section 6.1. No failure of the Company to give the foregoing notices or defect therein shall limit any Holder's ' s right to exercise a repurchase right or affect the validity of the proceedings for the repurchase of Securities. If any of the foregoing provisions or other provisions of this Article III XIV are inconsistent with applicable law, such law shall govern.
(b2) To exercise a repurchase right pursuant to Section 3.1 or Section 3.2right, a Holder shall deliver to the Paying Agent Trustee on or before the 30th day after the date of the Company Notice (i) irrevocable written notice (in the case of a repurchase pursuant to Section 3.1, a "Repurchase Notice" and, in the case of a repurchase pursuant to Section 3.2, a "Fundamental Change Repurchase Notice") of the Holder's exercise of such right, which notice shall set forth the name of the Holder, the principal amount of the Securities to be repurchased (and, if any Security is to repurchased in part, the serial number thereof, the portion of the principal amount thereof to be repurchased (which portion must be in principal amounts of $1,000 or a whole multiple of $1,000) and the name of the Person in which the portion thereof to remain outstanding Outstanding after such repurchase is to be registered), if certificated, the certificate numbers of the Securities to be repurchased, ) and a statement that an election to exercise the repurchase right pursuant to the terms and conditions specified in the Securities and the Indenture is being made thereby, and, in the event that any portion of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, shall be paid in shares of Common Stock, the name or names (with addresses) in which the certificate or certificates for shares of Common Stock shall be issued, and (ii) the Securities with respect to which the Repurchase Notice or Fundamental Change Repurchase Notice relates at any time after delivery repurchase right is being exercised. Such written notice shall be irrevocable, except that the right of the Repurchase Notice or the Fundamental Change Repurchase Notice, as the case may be (together with all necessary endorsements), at the offices of the Paying Agent, such delivery being a condition Holder to receipt by the Holder of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, thereof; provided, however, that such Repurchase Price or Fundamental Change Repurchase Price, as the case may be, shall be so paid pursuant to this Section 3.4(b) only if convert the Securities so delivered with respect to which the Paying Agent shall conform in all respects to the description thereof in the related Repurchase Notice or Fundamental Change Repurchase Notice. In the case of a repurchase right pursuant to Section 3.1 and Section 3.2, such delivery is being exercised shall be at any time from the opening of business on the date that is 20 Business Days prior to the Repurchase Date continue until the close of business on the second Business Day immediately preceding the Repurchase Date.
(3) In the event a repurchase right shall be exercised in accordance with the terms hereof, the Company shall pay or cause to be paid to the Trustee the Repurchase Price in cash or shares of Common Stock, as provided above, for payment to the Holder on the Repurchase Date on the date that is 45 days after the date of the Company Notice, together with accrued and unpaid interest to the Repurchase Date payable with respect to the Securities as to which the repurchase right has been exercised; provided, however, that installments of interest that mature on or prior to the Repurchase Date shall be payable in cash to the Holders of such Securities, or one or more Predecessor Securities, registered as such at the Fundamental Change close of business on the relevant Regular Record Date.
(4) If any Security (or portion thereof) surrendered for repurchase shall not be so paid on the Repurchase Date, the principal amount of such Security (or portion thereof, as the case may be) shall, subject until paid, bear interest to extension the extent permitted by applicable law from the Repurchase Date at the rate of 5.00% per annum, and each Security shall remain convertible into Common Stock until the principal of such Security (or portion thereof, as the case may be) shall have been paid or duly provided for.
(5) Any Security that is to comply with be repurchased only in part shall be surrendered to the Trustee (with, if the Company or the Trustee so requires, due endorsement by, or a written instrument of transfer in form satisfactory to the Company and the Trustee duly executed by, the Holder thereof or his attorney duly authorized in writing), and the Company shall execute, and the Trustee shall authenticate and make available for delivery to the Holder of such Security without service charge, a new Security or Securities, containing identical terms and conditions, each in an authorized denomination in aggregate principal amount equal to and in exchange for the unrepurchased portion of the principal of the Security so surrendered.
(6) Any issuance of shares of Common Stock in respect of the Repurchase Price shall be deemed to have been effected immediately prior to the close of business on the Repurchase Date and the Person or Persons in whose name or names any certificate or certificates for shares of Common Stock shall be issuable upon such repurchase shall be deemed to have become on the Repurchase Date the holder or holders of record of the shares represented thereby; provided, however, that any surrender for repurchase on a date when the stock transfer books of the Company shall be closed shall constitute the Person or Persons in whose name or names the certificate or certificates for such shares are to be issued as the record holder or holders thereof for all purposes at the opening of business on the next succeeding day on which such stock transfer books are open. No payment or adjustment shall be made for dividends or distributions on any Common Stock issued upon repurchase of any Security declared prior to the Repurchase Date.
(7) No fractions of shares shall be issued upon repurchase of Securities. If more than one Security shall be repurchased from the same Holder and the Repurchase Price shall be payable in shares of Common Stock, the number of full shares that shall be issuable upon such repurchase shall be computed on the basis of the aggregate principal amount of the Securities so repurchased. Instead of any fractional share of Common Stock that would otherwise be issuable on the repurchase of any Security or Securities, the Company will deliver to the applicable lawHolder its check for the current market value of such fractional share. Owners The current market value of beneficial interests in Global a fraction of a share is determined by multiplying the current market price of a full share by the fraction, and rounding the result to the nearest cent. For purposes of this Section, the current market price of a share of Common Stock is the Closing Price Per Share of the Common Stock on the Trading Day immediately preceding the Repurchase Date.
(8) Any issuance and delivery of certificates for shares of Common Stock on repurchase of Securities shall provide be made without charge to the Holder of Securities being repurchased for such certificates or for any tax or duty in respect of the issuance or delivery of such certificates or the securities represented thereby; provided, however, that the Company shall not be required to pay any tax or duty that may be payable in respect of (i) income of the Holder or (ii) any transfer involved in the issuance or delivery of certificates for shares of Common Stock in a Repurchase Notice name other than that of the Holder of the Securities being repurchased, and no such issuance or Fundamental Change Repurchase Notice delivery shall be made unless and until the Person requesting such issuance or delivery has paid to the Company the amount of any such tax or duty or has established, to the satisfaction of the Company, that such tax or duty has been paid.
(9) If shares of Common Stock to be delivered upon repurchase of a Security are to be registered in accordance a name other than that of the beneficial owner of such Security, then such Holder must deliver to the Trustee a Surrender Certificate, dated the date of surrender of such Restricted Security and signed by such beneficial owner, as to compliance with the Applicable Procedures restrictions on transfer applicable to such Restricted Security. Neither the Trustee nor any Registrar or Transfer Agent or other agents shall be required to register in a name other than that of the Depositarybeneficial owner shares of Common Stock issued upon repurchase of any such Restricted Security not so accompanied by a properly completed Surrender Certificate.
(10) All Securities delivered for repurchase shall be delivered to the Trustee to be canceled at the direction of the Trustee, which shall dispose of the same as provided in Section 3.9.
Appears in 1 contract
Samples: Indenture (Anadigics Inc)
Notices; Method of Exercising Repurchase Right, Etc. (a) Unless the Company shall have theretofore called for redemption all of the outstanding SecuritiesOutstanding Debentures, prior to or on the 30th day after the occurrence of a Change in Control, the Company, or, at the written request and expense of the Company prior to or on the 30th day after such occurrence, the Trustee, shall give to the Trustee, the Paying Agent and all Holders of SecuritiesDebentures notice, in the manner provided in this Section 3.414.2 hereof, of the occurrence of the Change of Control and of the Repurchase Right set forth herein arising as a notice containing the information required pursuant to the following provisions of this Section 3.4(a) result thereof (the "Company Notice") (i) on or before the 20th Business Day prior to the Repurchase Date or, in the event of a Fundamental Change arising from a Change of Control, the anticipated Effective Date (but in no event earlier than 45 days prior to the Repurchase Date or anticipated Effective Date, as the case may be), and (ii) within 15 Business Days after the Company knows or reasonably should know of the occurrence of a Fundamental Change that arises as a result of any Termination of Trading. Prior to or concurrently with the delivery of any Company Notice, the Company will issue a press release or publish such information on the Company's then existing website including the information required to be included in such Company Notice hereunder. The Company shall also deliver a copy of any Company Notice such notice of a Repurchase Right to the Trustee. At the request and expense Each notice of the Company on or before the fifth Business Day prior to the date on which the Company Notice is to be mailed, the Trustee shall provide the Company Notice to the Holders in accordance with the provisions of this Indenture. Each Company Notice a Repurchase Right shall state:
(i1) the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be,;
(ii2) the date by which the repurchase right Repurchase Right must be exercised,;
(iii3) the Repurchase Price or the Fundamental Change Repurchase Priceand accrued and unpaid interest, as the case may beif any, and whether the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, shall be paid by the Company in cash or by delivery of shares of Common Stock, or a specified combination thereof and the percentage of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, that will be paid in shares of Common Stock (which indication shall be irrevocable, subject to the satisfaction (or waiver) of the conditions set forth in Section 3.3),;
(iv) if the notice relates to the occurrence of a Fundamental Change, the events causing the Fundamental Change and the date of the Fundamental Change,
(v) that Securities with respect to which a Holder gives a Repurchase Notice or Fundamental Change Repurchase Notice may be converted only if the Holder withdraws the Repurchase Notice or Fundamental Change Repurchase Notice as to such Securities in accordance with the terms of this Indenture,
(vi4) a description of the procedure that which a Holder must follow to exercise a repurchase rightRepurchase Right, and the place or places where such Securities Debentures are to be surrendered for payment of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, accrued and accrued but unpaid interest (and Liquidated Damages), if any, to, but excluding, the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be,;
(vii5) that on the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be, the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, accrued and accrued but unpaid interest (and Liquidated Damages), if any, to, but excluding, the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be, will become due and payable upon each such Security Debenture designated by the Holder to be repurchased, and that interest thereon shall cease to accrue on and after said date;
(6) the Conversion Rate then in effect, the date on which the right to convert the principal amount of the Debentures to be repurchased will terminate and the place where such Debentures may be surrendered for conversion,
(viii7) if applicable, that no Holder shall have a Repurchase Right upon a Change of Control unless prior to any payment of the Conversion Repurchase Price then on the Repurchase Date the Company has made any applicable change of control offers required by the Company's Senior Debt and has purchased all Senior Debt validly tendered for payment in effect,connection with such change of control offers, and
(ix) 8) the place or places that where such Debentures, together with the Security Option to Elect Repayment Upon a Change of Control certificate (including the Election included in Exhibit A annexed hereto are to be delivered for payment of Holder to Require Repurchase attached thereto) and the Repurchase Notice (as defined below) shall be delivered, andPrice and accrued and unpaid interest, if the Security is a Restricted Security, the place or places that the Transfer Certificate in the form set forth in Exhibit C, required by Section 2.12 shall be delivered,
(x) the name and address of the Paying Agent and Conversion Agent, and
(xi) if the notice relates to a Fundamental Change, the estimated amount of any Make-Whole Premium and the respective percentages of such Make-Whole Premium that will be paid (as contemplated by Section 6.1(b)) in shares of Common Stock and in cash (which indication shall be irrevocable), subject to the satisfaction (or waiver) of the conditions set forth in Section 6.1(c), in the event that a Holder should, in lieu of electing to have Securities repurchased on the Fundamental Change Repurchase Date, elect to convert such Securities during the Fundamental Change Conversion Period, and
(xii) any other information to be included therein pursuant to Section 6.1any. No failure of the Company to give the foregoing notices or defect therein shall limit any Holder's right to exercise a repurchase right Repurchase Right or affect the validity of the proceedings for the repurchase of SecuritiesDebentures. If any of the foregoing provisions or other provisions of this Article III 11 are inconsistent with applicable law, such law shall govern.
(b) To exercise a repurchase right pursuant to Section 3.1 or Section 3.2Repurchase Right, a Holder shall deliver to the Paying Agent Trustee prior to the close of business on the third Business Day immediately preceding the Repurchase Date:
(i1) written notice (in the case of a repurchase pursuant to Section 3.1, a "Repurchase Notice" and, in the case of a repurchase pursuant to Section 3.2, a "Fundamental Change Repurchase Notice") of the Holder's exercise of such right, which notice shall set forth the name of the Holder, the principal amount of the Securities Debentures to be repurchased (and, if any Security Debenture is to be repurchased in part, the serial number thereof, the portion of the principal amount thereof to be repurchased (which portion must be in principal amounts of $1,000 or a whole multiple of $1,000repurchased) and the name of the Person in which the portion thereof to remain outstanding after such repurchase is to be registered), if certificated, the certificate numbers of the Securities to be repurchased, and a statement that an election to exercise the repurchase right pursuant to the terms and conditions specified in the Securities and the Indenture Repurchase Right is being made thereby, and, in the event that any portion of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, shall be paid in shares of Common Stock, the name or names (with addresses) in which the certificate or certificates for shares of Common Stock shall be issued, and and
(ii2) the Securities Debentures with respect to which the Repurchase Notice or Fundamental Change Repurchase Notice relates at any time after delivery of the Repurchase Notice or the Fundamental Change Repurchase Notice, as the case may be (together with all necessary endorsements), at the offices of the Paying Agent, such delivery Right is being a condition to receipt by the Holder of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, thereof; provided, however, that such Repurchase Price or Fundamental Change Repurchase Price, as the case may be, exercised. Such written notice shall be so paid pursuant to this Section 3.4(b) only irrevocable if the Securities so delivered not withdrawn prior to the Paying Agent shall conform in all respects to the description thereof in the related Repurchase Notice or Fundamental Change Repurchase Notice. In the case of a repurchase right pursuant to Section 3.1 and Section 3.2, such delivery shall be at any time from the opening close of business on the date that is 20 third Business Days Day prior to the Repurchase Date by delivery to the Trustee of a notice of withdrawal, except that the right of the Holder to convert the Debentures with respect to which the Repurchase Right is being exercised shall continue until the close of business on the second Business Day prior immediately preceding the Repurchase Date. The Company shall not pay accrued and unpaid interest on any such Debentures so converted.
(c) In the event a Repurchase Right shall be exercised in accordance with the terms hereof, the Company shall pay or cause to be paid to the Trustee the Repurchase Price in cash or shares of Common Stock, as provided above, for payment to the Holder on the Repurchase Date or, if shares of Common Stock are to be paid, as promptly after the Repurchase Date as practicable, together with Liquidated Damages, if any, and accrued and unpaid interest to the Repurchase Date payable in cash with respect to the Debentures as to which the Repurchase Right has been exercised; provided, however, that installments of interest that mature prior to or on the Fundamental Change Repurchase Date shall be payable in cash to the Holders of such Debentures, or one or more Predecessor Debentures, registered as such at the close of business on the relevant Regular Record Date.
(d) If any Debenture (or portion thereof) surrendered for repurchase shall not be so paid on the Repurchase Date, the principal amount of such Debenture (or portion thereof, as the case may be) shall, subject until paid, bear interest to extension the extent permitted by applicable law from the Repurchase Date at the Interest Rate, and each Debenture shall remain convertible into Common Stock until the principal of such Debenture (or portion thereof, as the case may be) shall have been paid or duly provided for.
(e) Any Debenture which is to comply with applicable law. Owners be repurchased only in part shall be surrendered to the Trustee (with, if the Company or the Trustee so requires, due endorsement by, or a written instrument of beneficial interests transfer in Global Securities form satisfactory to the Company and the Trustee duly executed by the Holder thereof or his attorney duly authorized in writing), and the Company shall provide execute, and the Trustee shall authenticate and make available for delivery to the Holder of such Debenture without service charge, a Repurchase Notice new Debenture or Fundamental Change Repurchase Notice Debentures, containing identical terms and conditions, each in accordance with an authorized denomination in aggregate principal amount equal to and in exchange for the Applicable Procedures unrepurchased portion of the Depositaryprincipal of the Debenture so surrendered.
(f) Any issuance of shares of Common Stock in respect of the Repurchase Price shall be deemed to have been effected immediately prior to the close of business on the Repurchase Date and the Person or Persons in whose name or names any certificate or certificates for shares of Common Stock shall be issuable upon such repurchase shall be deemed to have become on the Repurchase Date the holder or holders of record of the shares represented thereby; provided, however, that any surrender for repurchase on a date when the stock -------- ------- transfer books of the Company shall be closed shall constitute the Person or Persons in whose name or names the certificate or certificates for such shares are to be issued as the record holder or holders thereof for all purposes at the opening of business on the next succeeding day on which such stock transfer books are open. No payment or adjustment shall be made for dividends or distributions on any Common Stock issued upon repurchase of any Debenture declared prior to the Repurchase Date.
(g) No fractions of shares of Common Stock shall be issued upon repurchase of any Debenture or Debentures. If more than one Debenture shall be repurchased from the same Holder and the Repurchase Price shall be payable in shares of Common Stock, the number of full shares which shall be issued upon such repurchase shall be computed on the basis of the aggregate principal amount of the Debentures (or specified portions thereof) to be so repurchased. Instead of any fractional share of Common Stock which would otherwise be issued on the repurchase of any Debenture or Debentures (or specified portions thereof), the Company shall pay a cash adjustment in respect of such fraction (calculated to the nearest one-100th of a share) in an amount equal to the same fraction of the Quoted Price of the Common Stock as of the Trading Day preceding the Repurchase Date.
(h) Any issuance and delivery of certificates for shares of Common Stock on repurchase of Debentures shall be made without charge to the Holder of Debentures being repurchased for such certificates or for any tax or duty in respect of the issuance or delivery of such certificates or the Debentures represented thereby; provided, however, that the Company shall not be required to pay any tax or duty which may be payable in respect of (i) income of the Holder or (ii) any transfer involved in the issuance or delivery of certificates for shares of Common Stock in a name other than that of the Holder of the Debentures being repurchased, and no such issuance or delivery shall be made unless the Persons requesting such issuance or delivery has paid to the Company the amount of any such tax or duty or has established, to the satisfaction of the Company, that such tax or duty has been paid.
(i) All Debentures delivered for repurchase shall be delivered to the Trustee to be canceled at the direction of the Trustee, which shall dispose of the same as provided in Section 2.15 hereof.
Appears in 1 contract
Notices; Method of Exercising Repurchase Right, Etc. (a) Unless the --------------------------------------------------- Company shall have theretofore called for redemption all of the outstanding Outstanding Securities, the Company shall give to the Trustee, the Paying Agent and all Holders of Securities, in the manner provided in this Section 3.4, a notice containing the information required pursuant to the following provisions of this Section 3.4(a) (the "Company Notice") (i) on or before the 20th Business Day prior to the Repurchase Date or, in the event of a Fundamental Change arising from a Change of Control, the anticipated Effective Date (but in no event earlier than 45 days prior to the Repurchase Date or anticipated Effective Date, as the case may be), and (ii) within 15 Business Days 30th day after the Company knows or reasonably should know of the occurrence of a Fundamental Change that arises as a result of any Termination of Trading. Prior to or concurrently with the delivery of any Company Noticein Control, the Company will issue a press release or publish such information on the Company's then existing website including the information required to be included in such Company Notice hereunder. The Company shall also deliver a copy of any Company Notice to the Trustee. At or, at the request and expense of the Company on or before the fifth Business Day prior 15th day after such occurrence, the Trustee, shall give to all Holders of Securities, in the manner provided in Section 1.6, notice (the "Offer to Purchase") of the occurrence of the Change of Control and of the repurchase right set forth herein arising as a result thereof. The Company shall also deliver a copy of such Offer to Purchase to the date on which Trustee. Simultaneously with giving such notice, the Company Notice is to be mailed, the Trustee shall provide the Company Notice to the Holders issue a Press Release including all relevant information in accordance with the provisions of this Indenturesuch notice. Each Company Notice notice of a repurchase right shall state:
(i) the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be,
(ii) the date by which the repurchase right must be exercisedexercised pursuant to Section 14.3(2),
(iii) the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, and whether the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, shall be paid by the Company in cash or by delivery of shares of Common Stock, or a specified combination thereof and the percentage of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, that will be paid in shares of Common Stock (which indication shall be irrevocable, subject to the satisfaction (or waiver) of the conditions set forth in Section 3.3),
(iv) if the notice relates to the occurrence of a Fundamental Change, the events causing the Fundamental Change and the date of the Fundamental Change,
(v) that Securities with respect to which a Holder gives a Repurchase Notice or Fundamental Change Repurchase Notice may be converted only if the Holder withdraws the Repurchase Notice or Fundamental Change Repurchase Notice as to such Securities in accordance with the terms of this Indenture,
(vi) a description of the procedure that which a Holder must follow to exercise a repurchase right, and the place or places where such Securities are to be surrendered for payment of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, and accrued but unpaid interest (and including Liquidated Damages, if any), if any, to, but excluding, any to the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be,
(viiv) that on the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be, the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, and accrued but unpaid interest (and Liquidated including liquidated Damages, if any), if any, to, but excluding, any to the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be, will become due and payable upon each such Security designated by the Holder to be repurchased, and that interest thereon shall cease to accrue on and after said date,
(viiivi) the Conversion Price Rate then in effect,, the date on which the right to convert the principal amount of the Securities to be repurchased will terminate and the place or places where such Securities may be surrendered for conversion, and
(ixvii) the place or places that the Security certificate (including with the Election of Holder to Require Repurchase attached thereto) and the Repurchase Notice (as defined below) specified in Section 2.2 shall be delivered, and, and if the Security is a Restricted Security, Securities Certificate the place or places that the Transfer Surrender Certificate in the form set forth in Exhibit C, required by Section 2.12 14.3(9) shall be delivered,
(x) the name and address of the Paying Agent and Conversion Agent, and
(xi) if the notice relates to a Fundamental Change, the estimated amount of any Make-Whole Premium and the respective percentages of such Make-Whole Premium that will be paid (as contemplated by Section 6.1(b)) in shares of Common Stock and in cash (which indication shall be irrevocable), subject to the satisfaction (or waiver) of the conditions set forth in Section 6.1(c), in the event that a Holder should, in lieu of electing to have Securities repurchased on the Fundamental Change Repurchase Date, elect to convert such Securities during the Fundamental Change Conversion Period, and
(xii) any other information to be included therein pursuant to Section 6.1. No failure of the Company to give the foregoing notices or defect therein shall limit any Holder's right to exercise a repurchase right or affect the validity of the proceedings for the repurchase of Securities. If any of the foregoing provisions or other provisions of this Article III XIV are inconsistent with applicable law, such law shall govern.
(b) To exercise a repurchase right pursuant to Section 3.1 or Section 3.2, a Holder shall deliver to the Paying Agent (i) written notice (in the case of a repurchase pursuant to Section 3.1, a "Repurchase Notice" and, in the case of a repurchase pursuant to Section 3.2, a "Fundamental Change Repurchase Notice") of the Holder's exercise of such right, which notice shall set forth the name of the Holder, the principal amount of the Securities to be repurchased (and, if any Security is to repurchased in part, the portion of the principal amount thereof to be repurchased (which portion must be in principal amounts of $1,000 or a whole multiple of $1,000) and the name of the Person in which the portion thereof to remain outstanding after such repurchase is to be registered), if certificated, the certificate numbers of the Securities to be repurchased, and a statement that an election to exercise the repurchase right pursuant to the terms and conditions specified in the Securities and the Indenture is being made thereby, and, in the event that any portion of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, shall be paid in shares of Common Stock, the name or names (with addresses) in which the certificate or certificates for shares of Common Stock shall be issued, and (ii) the Securities to which the Repurchase Notice or Fundamental Change Repurchase Notice relates at any time after delivery of the Repurchase Notice or the Fundamental Change Repurchase Notice, as the case may be (together with all necessary endorsements), at the offices of the Paying Agent, such delivery being a condition to receipt by the Holder of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, thereof; provided, however, that such Repurchase Price or Fundamental Change Repurchase Price, as the case may be, shall be so paid pursuant to this Section 3.4(b) only if the Securities so delivered to the Paying Agent shall conform in all respects to the description thereof in the related Repurchase Notice or Fundamental Change Repurchase Notice. In the case of a repurchase right pursuant to Section 3.1 and Section 3.2, such delivery shall be at any time from the opening of business on the date that is 20 Business Days prior to the Repurchase Date until the close of business on the second Business Day prior to the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be, subject to extension to comply with applicable law. Owners of beneficial interests in Global Securities shall provide a Repurchase Notice or Fundamental Change Repurchase Notice in accordance with the Applicable Procedures of the Depositary.
Appears in 1 contract
Notices; Method of Exercising Repurchase Right, Etc. (a) Unless the Company shall have theretofore called for redemption all of the outstanding Outstanding Securities, the Company shall give to the Trustee, the Paying Agent and all Holders of Securities, in the manner provided in this Section 3.4, a notice containing the information required pursuant to the following provisions of this Section 3.4(a) (the "Company Notice") (i) on or before the 20th Business Day prior to the Repurchase Date or, in the event of a Fundamental Change arising from a Change of Control, the anticipated Effective Date (but in no event earlier than 45 days prior to the Repurchase Date or anticipated Effective Date, as the case may be), and (ii) within 15 Business Days 30th day after the Company knows or reasonably should know of the occurrence of a Fundamental Change that arises as a result of any Termination of Trading. Prior to or concurrently with the delivery of any Company Noticein Control, the Company will issue a press release or publish such information on the Company's then existing website including the information required to be included in such Company Notice hereunder. The Company shall also deliver a copy of any Company Notice to the Trustee. At or, at the request and expense of the Company on or before the fifth Business Day prior 30th day after such occurrence, the Trustee, shall give to all Holders of Securities, in the manner provided in SECTION 1.6, notice (the "Company Notice") of the occurrence of the Change of Control and of the repurchase right set forth herein arising as a result thereof and the Company shall issue a Press Release including all relevant information required to be included in such Company Notice. The Company shall also deliver a copy of such notice of a repurchase right to the date on which the Company Notice is to be mailed, the Trustee shall provide the Company Notice to the Holders in accordance with the provisions of this IndentureTrustee. Each Company Notice notice of a repurchase right shall state:
(i1) the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be,
(ii2) the date by which the repurchase right must be exercised,
(iii3) the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, and whether the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, shall be paid by the Company in cash or by delivery of shares of Common Stock, or a specified combination thereof and the percentage of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, that will be paid in shares of Common Stock (which indication shall be irrevocable, subject to the satisfaction (or waiver) of the conditions set forth in Section 3.3),.
(iv) if the notice relates to the occurrence of a Fundamental Change, the events causing the Fundamental Change and the date of the Fundamental Change,
(v) that Securities with respect to which a Holder gives a Repurchase Notice or Fundamental Change Repurchase Notice may be converted only if the Holder withdraws the Repurchase Notice or Fundamental Change Repurchase Notice as to such Securities in accordance with the terms of this Indenture,
(vi4) a description of the procedure that which a Holder must follow to exercise a repurchase right, and the place or places where such Securities are to be surrendered for payment of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, and accrued but unpaid interest (and Liquidated Damages)interest, if any, to, but excluding, the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be,
(vii5) that on the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be, the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, and accrued but unpaid interest (and Liquidated Damages)interest, if any, to, but excluding, the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be, will become due and payable upon each such Security designated by the Holder to be repurchased, and that interest thereon shall cease to accrue on and after said date,
(viii6) the Conversion Price Rate then in effect, the date on which the right to convert the principal amount of the Securities to be repurchased will terminate and the place or places where such Securities may be surrendered for conversion,
(ix7) the place or places that the Security certificate (including the Election of Holder to Require Repurchase attached thereto) and the Repurchase Notice (as defined below) required by Section 2.2 shall be delivered, and, if the Security is a Restricted Security, the place or places that the Transfer Certificate in the form set forth in Exhibit C, required by Section 2.12 shall be delivered,
(x) 8) the name and address of the Paying Agent and Conversion Agent, and
(xi) if the notice relates to a Fundamental Change, the estimated amount of any Make-Whole Premium and the respective percentages CUSIP number or numbers of such Make-Whole Premium that will be paid (as contemplated by Section 6.1(b)) in shares of Common Stock and in cash (which indication shall be irrevocable), subject to the satisfaction (or waiver) of the conditions set forth in Section 6.1(c), in the event that a Holder should, in lieu of electing to have Securities repurchased on the Fundamental Change Repurchase Date, elect to convert such Securities during the Fundamental Change Conversion Period, and
(xii) any other information to be included therein pursuant to Section 6.1Securities. No failure of the Company to give the foregoing notices or defect therein shall limit any Holder's right to exercise a repurchase right or affect the validity of the proceedings for the repurchase of Securities. If any of the foregoing provisions or other provisions of this Article III ARTICLE THIRTEEN are inconsistent with applicable law, such law shall govern.
(b) To exercise a repurchase right pursuant to Section 3.1 or Section 3.2right, a Holder shall deliver to the Paying Agent Trustee on or before the 30th day after the date of the Company Notice (i) written notice (in the case of a repurchase pursuant to Section 3.1, a "Repurchase Notice" and, in the case of a repurchase pursuant to Section 3.2, a "Fundamental Change Repurchase Notice") of the Holder's exercise of such right, which notice shall set forth the name of the Holder, the principal amount of the Securities to be repurchased (and, if any Security is to repurchased in part, the serial number thereof, the portion of the principal amount thereof to be repurchased (which portion must be in principal amounts of $1,000 or a whole multiple of $1,000) and the name of the Person in which the portion thereof to remain outstanding Outstanding after such repurchase is to be registered), if certificated, the certificate numbers of the Securities to be repurchased, ) and a statement that an election to exercise the repurchase right pursuant to the terms and conditions specified in the Securities and the Indenture is being made thereby, and, in the event that any portion of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, shall be paid in shares of Common Stock, the name or names (with addresses) in which the certificate or certificates for shares of Common Stock shall be issued, and (ii) the Securities with respect to which the Repurchase Notice or Fundamental Change Repurchase Notice relates at any time after delivery repurchase right is being exercised. Such written notice shall be irrevocable, except that the right of the Repurchase Notice or the Fundamental Change Repurchase Notice, as the case may be (together with all necessary endorsements), at the offices of the Paying Agent, such delivery being a condition Holder to receipt by the Holder of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, thereof; provided, however, that such Repurchase Price or Fundamental Change Repurchase Price, as the case may be, shall be so paid pursuant to this Section 3.4(b) only if convert the Securities so delivered with respect to which the Paying Agent shall conform in all respects to the description thereof in the related Repurchase Notice or Fundamental Change Repurchase Notice. In the case of a repurchase right pursuant to Section 3.1 and Section 3.2, such delivery is being exercised shall be at any time from the opening of business on the date that is 20 Business Days prior to the Repurchase Date continue until the close of business on the second Business Day Repurchase Date.
(c) In the event a repurchase right shall be exercised in accordance with the terms hereof, the Company shall pay or cause to be paid to the Trustee the Repurchase Price in cash or shares of Common Stock, as provided above, for payment to the Holder on the Repurchase Date or, if shares of Common Stock are to be paid, as promptly after the Repurchase Date as practicable; PROVIDED, HOWEVER, that installments of interest on the Securities whose Stated Maturity is on or prior to the Repurchase Date shall be payable in cash to the Holders of such Securities, or one or more Predecessor Securities, registered as such at the Fundamental Change close of business on the relevant Record Date.
(d) If any Security (or portion thereof) surrendered for repurchase shall not be so paid on the Repurchase Date, the principal amount of such Security (or portion thereof, as the case may be) shall, subject until paid, bear interest to extension the extent permitted by applicable law from the Repurchase Date at the rate of 5.50% per annum, and each Security shall remain convertible into Common Stock until the principal of such Security (or portion thereof, as the case may be) shall have been paid or duly provided for.
(e) Any Security which is to comply with be repurchased only in part shall be surrendered to the Trustee (with, if the Company or the Trustee so requires, due endorsement by, or a written instrument of transfer in form satisfactory to the Company and the Trustee duly executed by, the Holder thereof or his attorney duly authorized in writing), and the Company shall execute, and the Trustee shall authenticate and make available for delivery to the Holder of such Security without service charge, a new Security or Securities, containing identical terms and conditions, each in an authorized denomination in aggregate principal amount equal to and in exchange for the unrepurchased portion of the principal of the Security so surrendered.
(f) Any issuance of shares of Common Stock in respect of the Repurchase Price shall be deemed to have been effected immediately prior to the close of business on the Repurchase Date and the Person or Persons in whose name or names any certificate or certificates for shares of Common Stock shall be issuable upon such repurchase shall be deemed to have become on the Repurchase Date the holder or holders of record of the shares represented thereby; PROVIDED, HOWEVER, that any surrender for repurchase on a date when the stock transfer books of the Company shall be closed shall constitute the Person or Persons in whose name or names the certificate or certificates for such shares are to be issued as the record holder or holders thereof for all purposes at the opening of business on the next succeeding day on which such stock transfer books are open. No payment or adjustment shall be made for dividends or distributions on any Common Stock issued upon repurchase of any Security declared prior to the Repurchase Date.
(g) No fractions of shares shall be issued upon repurchase of Securities. If more than one Security shall be repurchased from the same Holder and the Repurchase Price shall be payable in shares of Common Stock, the number of full shares which shall be issuable upon such repurchase shall be computed on the basis of the aggregate principal amount of the Securities so repurchased. Instead of any fractional share of Common Stock which would otherwise be issuable on the repurchase of any Security or Securities, the Company will deliver to the applicable lawHolder its check for the current market value of such fractional share. Owners The current market value of beneficial interests in Global a fraction of a share is determined by multiplying the current market price of a full share by the fraction, and rounding the result to the nearest cent. For purposes of this Section, the current market price of a share of Common Stock is the Closing Price Per Share of the Common Stock on the Trading Day immediately preceding the Repurchase Date.
(h) Any issuance and delivery of certificates for shares of Common Stock on repurchase of Securities shall provide a Repurchase Notice be made without charge to the Holder of Securities being repurchased for such certificates or Fundamental Change Repurchase Notice for any tax or duty in accordance with the Applicable Procedures respect of the Depositaryissuance or delivery of such certificates or the securities represented thereby; PROVIDED, HOWEVER, that the Company shall not be required to pay any tax or duty which may be payable in respect of (i) income of the Holder or (ii) any transfer involved in the issuance or delivery of certificates for shares of Common Stock in a name other than that of the Holder of the Securities being repurchased, and no such issuance or delivery shall be made unless and until the Person requesting such issuance or delivery has paid to the Company the amount of any such tax or duty or has established, to the satisfaction of the Company, that such tax or duty has been paid.
(i) All Securities delivered for repurchase shall be delivered to the Trustee to be canceled by the Trustee and disposed of as provided in SECTION 3.9.
Appears in 1 contract
Notices; Method of Exercising Repurchase Right, Etc. (a1) Unless the Company shall have theretofore called for redemption all of the outstanding Outstanding Securities, on or before the 30th day after the occurrence of a Fundamental Change, the Company or, at the request in a Company Order and expense of the Company on or before the 15th day after such occurrence, the Trustee, shall give to the Trustee, the Paying Agent and all Holders of Securities, in the manner provided in this Section 3.41.6, a notice containing the information required pursuant to the following provisions of this Section 3.4(a) (the "“Fundamental Change Company Notice"”) (i) on or before the 20th Business Day prior to the Repurchase Date or, in the event of a Fundamental Change arising from a Change of Control, the anticipated Effective Date (but in no event earlier than 45 days prior to the Repurchase Date or anticipated Effective Date, as the case may be), and (ii) within 15 Business Days after the Company knows or reasonably should know of the occurrence of a the Fundamental Change that arises and of the repurchase right set forth herein arising as a result of any Termination of Trading. Prior to or concurrently with the delivery of any Company Notice, the Company will issue a press release or publish such information on the Company's then existing website including the information required to be included in such Company Notice hereunderthereof. The Company shall also deliver a copy of any such Fundamental Change Company Notice to the Trustee. At If such notice is to be given by the request and expense of Trustee, the Company shall deliver, on or before the fifth Business Day prior day after such occurrence, a Company Order requesting the Trustee to give such notice and setting forth all the date on which information to be included in such notice including the information set forth below. Each Fundamental Change Company Notice is shall identify the Securities to be mailed, the Trustee shall provide the Company Notice to the Holders in accordance with the provisions of this Indenture. Each Company Notice repurchased (including CUSIP numbers) and shall state:
(i) the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be,
(ii) the date by which the repurchase right must be exercised,
(iii) the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, and whether the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, shall be paid by the Company in cash or by delivery of shares of Common Stock, or a specified combination thereof and the percentage of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, that will be paid in shares of Common Stock (which indication shall be irrevocable, subject to the satisfaction (or waiver) of the conditions set forth in Section 3.3),
(iv) if the notice relates to the occurrence of a Fundamental Change, the events causing the Fundamental Change and the date of the Fundamental Change,
(v) that Securities with respect to which a Holder gives a Repurchase Notice or Fundamental Change Repurchase Notice may be converted only if the Holder withdraws the Repurchase Notice or Fundamental Change Repurchase Notice as to such Securities in accordance with the terms of this Indenture,
(vi) a description of the procedure that a Holder must follow to exercise a repurchase right, and the place or places where such Securities are to be surrendered for payment of the Fundamental Change Repurchase Price or and accrued interest, if any (including Additional Interest and Special Interest, if any), to the Fundamental Change Repurchase Date,
(v) that on the Fundamental Change Repurchase Date the Fundamental Change Repurchase Price, as the case may be, and accrued but unpaid interest interest, if any (including Additional Interest and Liquidated Damages)Special Interest, if any), to, but excluding, the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be,
(vii) that on the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be, the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, and accrued but unpaid interest (and Liquidated Damages), if any, to, but excluding, the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be, will become due and payable upon each such Security designated by the Holder to be repurchased, and that interest thereon shall cease to accrue on and after said date,
(viiivi) the Conversion Price Rate then in effect,, the date on which the right to convert the aggregate principal amount of the Securities to be repurchased will terminate and the place or places where such Securities may be surrendered for conversion, and
(ixvii) the place or places that the Security certificate (including with the Election of Holder to Require Repurchase attached thereto) and the Repurchase Notice (as defined below) specified in Section 2.2 shall be delivered, and, if the Security is a Restricted Security, the place or places that the Transfer Certificate in the form set forth in Exhibit C, required by Section 2.12 shall be delivered,
(x) the name and address of the Paying Agent and Conversion Agent, and
(xi) if the notice relates to a Fundamental Change, the estimated amount of any Make-Whole Premium and the respective percentages of such Make-Whole Premium that will be paid (as contemplated by Section 6.1(b)) in shares of Common Stock and in cash (which indication shall be irrevocable), subject to the satisfaction (or waiver) of the conditions set forth in Section 6.1(c), in the event that a Holder should, in lieu of electing to have Securities repurchased on the Fundamental Change Repurchase Date, elect to convert such Securities during the Fundamental Change Conversion Period, and
(xii) any other information to be included therein pursuant to Section 6.1. No failure of the Company to give the foregoing notices or defect therein shall limit any Holder's ’s right to exercise a repurchase right or affect the validity of the proceedings for the repurchase of Securities. If any of the foregoing provisions or other provisions of this Article III XIV are inconsistent with applicable law, such law shall govern.
(b2) To exercise a repurchase right pursuant to Section 3.1 or Section 3.2right, a Holder shall deliver to the Paying Agent Trustee on or before the close of business on the Business Day prior to the Fundamental Change Repurchase Date (i) written notice (in the case of a repurchase pursuant to Section 3.1, a "Repurchase Notice" and, in the case of a repurchase pursuant to Section 3.2, a "Fundamental Change Repurchase Notice") of the Holder's ’s exercise of such right, which notice shall set forth the name of the Holder, the aggregate principal amount of the Securities to be repurchased (and, if any Security is to repurchased in part, the serial number thereof, the portion of the aggregate principal amount thereof to be repurchased (which portion must be in principal amounts of $1,000 or a whole multiple of $1,000) and the name of the Person in which the portion thereof to remain outstanding Outstanding after such repurchase is to be registered), if certificated, the certificate numbers of the Securities to be repurchased, ) and a statement that an election to exercise the repurchase right pursuant to the terms and conditions specified in the Securities and the Indenture is being made thereby, and, in the event that any portion of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, shall be paid in shares of Common Stock, the name or names (with addresses) in which the certificate or certificates for shares of Common Stock shall be issued, and (ii) the Securities with respect to which the Repurchase Notice or Fundamental Change Repurchase Notice relates at any time after delivery repurchase right is being exercised. Such written notice shall be irrevocable, except that the right of the Repurchase Notice or the Fundamental Change Repurchase Notice, as the case may be (together with all necessary endorsements), at the offices of the Paying Agent, such delivery being a condition Holder to receipt by the Holder of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, thereof; provided, however, that such Repurchase Price or Fundamental Change Repurchase Price, as the case may be, shall be so paid pursuant to this Section 3.4(b) only if convert the Securities so delivered with respect to which the Paying Agent shall conform in all respects to the description thereof in the related Repurchase Notice or Fundamental Change Repurchase Notice. In the case of a repurchase right pursuant to Section 3.1 and Section 3.2, such delivery is being exercised shall be at any time from the opening of business on the date that is 20 Business Days prior to the Repurchase Date continue until the close of business on the second Business Day prior immediately preceding the Fundamental Change Repurchase Date.
(3) In the event a repurchase right shall be exercised in accordance with the terms hereof, the Company shall pay or cause to be paid to the Trustee before 10:30 a.m. (New York City time) on the Fundamental Change Repurchase Date or the Fundamental Change Repurchase Price in cash, as provided above, for payment to the Holder on the Fundamental Change Repurchase Date, together with accrued and unpaid interest (including Additional Interest and Special Interest, if any) to, but excluding, the Fundamental Change Repurchase Date, payable with respect to the Securities as to which the repurchase right has been exercised; provided, however, that installments of interest that mature on or prior to the Fundamental Change Repurchase Date shall be payable in cash to the Holders of such Securities, or one or more Predecessor Securities, registered as such at the close of business on the relevant Regular Record Date.
(4) If any Security (or portion thereof) surrendered for repurchase shall not be so paid on the Fundamental Change Repurchase Date, the aggregate principal amount of such Security (or portion thereof, as the case may be), subject shall, until paid, bear interest to extension to comply with the extent permitted by applicable law. Owners of beneficial interests in Global Securities shall provide a Repurchase Notice or law from the Fundamental Change Repurchase Notice Date at the rate of 7.625% per annum, and each Security shall remain convertible into cash and Common Stock, if any, until the principal of such Security (or portion thereof, as the case may be) shall have been paid or duly provided for.
(5) Any Security that is to be repurchased only in accordance part shall be surrendered to the Trustee (with, if the Company or the Trustee so requires, due endorsement by, or a written instrument of transfer in form satisfactory to the Company and the Trustee duly executed by, the Holder thereof or his attorney duly authorized in writing), and the Company shall execute, and upon its actual receipt by a Responsible Officer of a Company Order to such effect, the Trustee shall authenticate and make available for delivery to the Holder of such Security pursuant to such Company Order without service charge, a new Security or Securities, containing identical terms and conditions, each in an authorized denomination in aggregate principal amount equal to and in exchange for the unrepurchased portion of the principal of the Security so surrendered.
(6) All Securities delivered for repurchase shall be delivered to the Trustee to be canceled at the direction of the Trustee, which shall dispose of the same as provided in Section 3.9.
(7) To the extent that the aggregate amount of cash deposited by the Company pursuant to Section 14.2(3) exceeds the aggregate Fundamental Change Repurchase Price of the Securities or portions thereof which the Company is obligated to repurchase as of the Fundamental Change Repurchase Date together with accrued but unpaid interest (including Additional Interest and Special Interest, if any) thereon, then, unless otherwise agreed in writing with the Applicable Procedures Company, promptly after the Business Day following the Fundamental Change Repurchase Date the Trustee shall return any such excess to the Company.
(8) When complying with the provisions of Section 14.1 hereof (so long as such offer or repurchase constitutes an “issuer tender offer” for purposes of Rule 13e-4 (which term, as used herein, includes any successor provision thereto) under the DepositaryExchange Act at the time of such offer or repurchase), the Company shall (i) comply in all material respects with Rule 13e-4 and Rule 14e-1 under the Exchange Act, (ii) file the related Schedule TO (or any successor schedule, form or report) under the Exchange Act and (iii) otherwise comply in all material respects with all Federal and state securities laws so as to permit the rights and obligations under Section 14.1 to be exercised in the time and in the manner specified in Section 14.1.
Appears in 1 contract
Samples: Indenture (Alesco Financial Inc)
Notices; Method of Exercising Repurchase Right, Etc. (a1) Unless the Company shall have theretofore called for redemption all of the outstanding Outstanding Securities, on or before the 30th day after the occurrence of a Change in Control, the Company or, at the request and expense of the Company on or before the 15th day after such occurrence, the Trustee, shall give to the Trustee, the Paying Agent and all Holders of SecuritiesSecurities and to the Trustee, in the manner provided in this Section 3.41.6, a notice containing the information required pursuant to the following provisions of this Section 3.4(a) (the "“Company Notice"”) (i) on or before the 20th Business Day prior to the Repurchase Date or, in the event of a Fundamental Change arising from a Change of Control, the anticipated Effective Date (but in no event earlier than 45 days prior to the Repurchase Date or anticipated Effective Date, as the case may be), and (ii) within 15 Business Days after the Company knows or reasonably should know of the occurrence of a Fundamental the Change that arises in Control and of the repurchase right set forth herein arising as a result of any Termination of Trading. Prior to or concurrently with the delivery of any Company Notice, thereof and the Company will shall issue a press release or publish such information on the Company's then existing website Press Release including the information required to be included in such Company Notice hereunder. The Company shall also deliver a copy of any such Company Notice to the Trustee. At the request and expense of the Company on or before the fifth Business Day prior to the date on which the Company Notice is to be mailed, the Trustee shall provide the Company Notice to the Holders in accordance with the provisions of this Indenture. Each Company Notice shall state:
(i) the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be,
(ii) the date by which the repurchase right must be exercised,
(iii) the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, and whether the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, shall be paid by the Company in cash or by delivery of shares of Common Stock, or a specified combination thereof and the percentage of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, that will be paid in shares of Common Stock (which indication shall be irrevocable, subject to the satisfaction (or waiver) of the conditions set forth in Section 3.3),
(iv) if the notice relates to the occurrence of a Fundamental Change, the events causing the Fundamental Change and the date of the Fundamental Change,
(v) that Securities with respect to which a Holder gives a Repurchase Notice or Fundamental Change Repurchase Notice may be converted only if the Holder withdraws the Repurchase Notice or Fundamental Change Repurchase Notice as to such Securities in accordance with the terms of this Indenture,
(vi) a description of the procedure that a Holder must follow to exercise a repurchase right, and the place or places where such Securities are to be surrendered for payment of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, and accrued but unpaid interest (and Liquidated Damages), if any, to, but excluding, the Repurchase Date or the Fundamental Change Repurchase Date, as the case may beinterest,
(viiv) that on the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be, the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, and accrued but unpaid interest (and Liquidated Damages), if any, to, but excluding, the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be, will become due and payable in cash upon each such Security designated by the Holder to be repurchased, and that interest thereon shall will cease to accrue on and after said such date,
(viiivi) the Conversion Price Rate then in effect,, whether the conversion rights are then exercisable, the date on which the right to convert the principal amount of the Securities to be repurchased will terminate and the place or places where such Securities may be surrendered for conversion, and
(ixvii) the place or places that the Security certificate (including with the Election of Holder to Require Repurchase attached thereto) and the Repurchase Notice (as defined below) specified in Section 2.2 shall be delivered, and, if the Security is a Restricted Security, the place or places that the Transfer Certificate in the form set forth in Exhibit C, required by Section 2.12 shall be delivered,
(x) the name and address of the Paying Agent and Conversion Agent, and
(xi) if the notice relates to a Fundamental Change, the estimated amount of any Make-Whole Premium and the respective percentages of such Make-Whole Premium that will be paid (as contemplated by Section 6.1(b)) in shares of Common Stock and in cash (which indication shall be irrevocable), subject to the satisfaction (or waiver) of the conditions set forth in Section 6.1(c), in the event that a Holder should, in lieu of electing to have Securities repurchased on the Fundamental Change Repurchase Date, elect to convert such Securities during the Fundamental Change Conversion Period, and
(xii) any other information to be included therein pursuant to Section 6.1. No failure of the Company to give the foregoing notices or defect therein shall limit any Holder's ’s right to exercise a repurchase right or affect the validity of the proceedings for the repurchase of Securities. If any of the foregoing provisions or other provisions of this Article III XIV are inconsistent with applicable law, such law shall govern.
(b2) To exercise a repurchase right pursuant to Section 3.1 or Section 3.2right, a Holder shall deliver to the Paying Agent Trustee on or before the 30th day after the date of the Company Notice (i) irrevocable written notice (in the case of a repurchase pursuant to Section 3.1, a "Repurchase Notice" and, in the case of a repurchase pursuant to Section 3.2, a "Fundamental Change Repurchase Notice") of the Holder's ’s exercise of such right, which notice shall set forth the name of the Holder, the principal amount of the Securities to be repurchased (and, if any Security is to repurchased in part, the serial number thereof, the portion of the principal amount thereof to be repurchased (which portion must be in principal amounts of $1,000 or a whole multiple of $1,000) and the name of the Person in which the portion thereof to remain outstanding Outstanding after such repurchase is to be registered), if certificated, the certificate numbers of the Securities to be repurchased, ) and a statement that an election to exercise the repurchase right pursuant to the terms and conditions specified in the Securities and the Indenture is being made thereby, and, in the event that any portion of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, shall be paid in shares of Common Stock, the name or names (with addresses) in which the certificate or certificates for shares of Common Stock shall be issued, and (ii) the Securities with respect to which the Repurchase Notice or Fundamental Change Repurchase Notice relates at any time after delivery repurchase right is being exercised. Such written notice shall be irrevocable, except that the right of the Repurchase Notice or the Fundamental Change Repurchase Notice, as the case may be (together with all necessary endorsements), at the offices of the Paying Agent, such delivery being a condition Holder to receipt by the Holder of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, thereof; provided, however, that such Repurchase Price or Fundamental Change Repurchase Price, as the case may be, shall be so paid pursuant to this Section 3.4(b) only if convert the Securities so delivered with respect to which the Paying Agent shall conform in all respects to the description thereof in the related Repurchase Notice or Fundamental Change Repurchase Notice. In the case of a repurchase right pursuant to Section 3.1 and Section 3.2, such delivery is being exercised shall be at any time from the opening of business on the date that is 20 Business Days prior to the Repurchase Date continue until the close of business on the second Business Day immediately preceding the Repurchase Date.
(3) In the event a repurchase right shall be exercised in accordance with the terms hereof, the Company shall pay or cause to be paid to the Trustee the Repurchase Price in cash, as provided above, for payment to the Holder on the Repurchase Date; provided, however, that installments of interest that mature on or prior to the Repurchase Date shall be payable in cash to the Holders of such Securities, or one or more Predecessor Securities, registered as such at the Fundamental Change close of business on the relevant Regular Record Date, on the date that is not more than 45 days after the date of the Company Notice.
(4) If any Security (or portion thereof) surrendered for repurchase shall not be so paid on the Repurchase DateDate the principal amount of such Security (or portion thereof, as the case may be) shall, subject until paid, bear interest to extension the extent permitted by applicable law from the Repurchase Date at the rate of 0.50% per annum, and each such Security shall remain convertible into Common Stock until the principal of such Security (or portion thereof, as the case may be) shall have been paid.
(5) Any Security that is to be repurchased only in part shall be surrendered to the Trustee (with, if the Company or the Trustee so requires, due endorsement by, or a written instrument of transfer in form satisfactory to the Company and the Trustee duly executed by, the Holder thereof or his attorney duly authorized in writing), and the Company shall execute, and the Trustee shall authenticate and make available for delivery to the Holder of such Security without service charge, a new Security or Securities, containing identical terms and conditions, each in an authorized denomination in aggregate principal amount equal to and in exchange for the unrepurchased portion of the principal of the Security so surrendered.
(6) All Securities delivered for repurchase shall be delivered to the Trustee to be canceled at the direction of the Trustee, which shall dispose of the same as provided in Section 3.9.
(7) The Company will comply with applicable law. Owners of beneficial interests the Exchange Act and the rules and regulations promulgated under the Exchange Act, to the extent applicable, in Global Securities shall provide a Repurchase Notice or Fundamental Change Repurchase Notice in accordance connection with the Applicable Procedures of the DepositaryCompany Notice.
Appears in 1 contract
Samples: Indenture (Solectron Corp)
Notices; Method of Exercising Repurchase Right, Etc. (a) Unless the Company shall have theretofore called for redemption all of the outstanding Outstanding Securities, on or before the 30th day after the occurrence of a Change in Control, the Company or, at the request and expense of the Company, the Trustee, shall give to the Trustee, the Paying Agent and all Holders of Securities, in the manner provided in this Section 3.41.05, a notice containing the information required pursuant to the following provisions of this Section 3.4(a) (the "Company Notice") (i) on or before the 20th Business Day prior to the Repurchase Date or, in the event of a Fundamental Change arising from a Change of Control, the anticipated Effective Date (but in no event earlier than 45 days prior to the Repurchase Date or anticipated Effective Date, as the case may be), and (ii) within 15 Business Days after the Company knows or reasonably should know of the occurrence of a Fundamental the Change that arises in Control and of the repurchase right set forth herein arising as a result of any Termination of Trading. Prior to or concurrently with the delivery of any Company Notice, the Company will issue a press release or publish such information on the Company's then existing website including the information required to be included in such Company Notice hereunderthereof. The Company shall also deliver a copy of any Company Notice such notice of a repurchase right to the Trustee. At the request and expense Each notice of the Company on or before the fifth Business Day prior to the date on which the Company Notice is to be mailed, the Trustee shall provide the Company Notice to the Holders in accordance with the provisions of this Indenture. Each Company Notice a repurchase right shall state:
(i) the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be,
(ii) the date by which the repurchase right must be exercised,
(iii) the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, and whether the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, shall be paid by the Company in cash or by delivery of shares of Common Stock, or a specified combination thereof and the percentage of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, that will be paid in shares of Common Stock (which indication shall be irrevocable, subject to the satisfaction (or waiver) of the conditions set forth in Section 3.3),
(iv) if the notice relates to the occurrence of a Fundamental Change, the events causing the Fundamental Change and the date of the Fundamental Change,
(v) that Securities with respect to which a Holder gives a Repurchase Notice or Fundamental Change Repurchase Notice may be converted only if the Holder withdraws the Repurchase Notice or Fundamental Change Repurchase Notice as to such Securities in accordance with the terms of this Indenture,
(vi) a description of the procedure that which a Holder must follow to exercise a repurchase right, and the place or places where such Securities are to be surrendered for payment of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, and accrued but unpaid interest (and Liquidated Damages)interest, if any, to, but excluding, the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be,
(viiv) that on the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be, the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, and accrued but unpaid interest (and Liquidated Damages)interest, if any, to, but excluding, the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be, will become due and payable upon each such Security designated by the Holder to be repurchased, and that interest thereon shall cease to accrue on and after said date,
(viiivi) the Conversion Price Rate then in effect,, the date on which the right to convert the principal amount of the Securities to be repurchased will terminate and the place or places where such Securities may be surrendered for conversion, and
(ixvii) the place or places that the Security certificate (including the Election of Holder to Require Repurchase attached thereto) and the Repurchase Notice (as defined below) required by Section 2.03 shall be delivered, andand the form of such certificate. In addition, if at least two Business Days preceding the Security is a Restricted SecurityRepurchase Date, the place or places that Company shall give to all Holders of the Transfer Certificate Securities, in the form set forth manner provided in Exhibit CSection 1.05, required by Section 2.12 shall be delivered,
(x) notice specifying whether the name and address of the Paying Agent and Conversion Agent, and
(xi) if the notice relates to a Fundamental Change, the estimated amount of any Make-Whole Premium and the respective percentages of such Make-Whole Premium that Repurchase Price will be paid (as contemplated by Section 6.1(b)) payable in shares of cash or Common Stock and in cash (which indication shall be irrevocable), subject deliver a copy of such notice to the satisfaction (or waiver) of the conditions set forth in Section 6.1(c), in the event that a Holder should, in lieu of electing to have Securities repurchased on the Fundamental Change Repurchase Date, elect to convert such Securities during the Fundamental Change Conversion Period, and
(xii) any other information to be included therein pursuant to Section 6.1Trustee. No failure of the Company to give the foregoing notices or defect therein shall limit any Holder's right to exercise a repurchase right or affect the validity of the proceedings for the repurchase of Securities. If any of the foregoing provisions or other provisions of this Article III are inconsistent with applicable law, such law shall govern.
(b) To exercise a repurchase right pursuant to Section 3.1 or Section 3.2right, a Holder shall deliver to the Trustee or any Paying Agent on or before the 30th day after the date of the Company Notice (i) written notice (in the case of a repurchase pursuant to Section 3.1, a "Repurchase Notice" and, in the case of a repurchase pursuant to Section 3.2, a "Fundamental Change Repurchase Notice") of the Holder's exercise of such right, which notice shall set forth the name of the Holder, the principal amount of the Securities to be repurchased (and, if any Security is to repurchased in part, the serial number thereof, the portion of the principal amount thereof to be repurchased (which portion must be in principal amounts of $1,000 or a whole multiple of $1,000) and the name of the Person in which the portion thereof to remain outstanding Outstanding after such repurchase is to be registered), if certificated, the certificate numbers of the Securities to be repurchased, ) and a statement that an election to exercise the repurchase right pursuant to the terms and conditions specified in the Securities and the Indenture is being made thereby, and, in the event that any portion of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, shall be paid in shares of Common Stock, the name or names (with addresses) in which the certificate or certificates for shares of Common Stock shall be issued, and (ii) the Securities with respect to which the Repurchase Notice or Fundamental Change Repurchase Notice relates at any time after delivery repurchase right is being exercised. Such written notice shall be irrevocable, except that the right of the Repurchase Notice or the Fundamental Change Repurchase Notice, as the case may be (together with all necessary endorsements), at the offices of the Paying Agent, such delivery being a condition Holder to receipt by the Holder of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, thereof; provided, however, that such Repurchase Price or Fundamental Change Repurchase Price, as the case may be, shall be so paid pursuant to this Section 3.4(b) only if convert the Securities so delivered with respect to which the Paying Agent shall conform in all respects to the description thereof in the related Repurchase Notice or Fundamental Change Repurchase Notice. In the case of a repurchase right pursuant to Section 3.1 and Section 3.2, such delivery is being exercised shall be at any time from the opening of business on the date that is 20 Business Days prior to the Repurchase Date continue until the close of business on the second Business Day Repurchase Date.
(c) In the event a repurchase right shall be exercised in accordance with the terms hereof, the Company shall pay or cause to be paid to the Trustee or the Paying Agent the Repurchase Price in cash or Common Stock, as provided above, for payment to the Holder on the Repurchase Date or, if Common Stock are to be paid, as promptly after the Repurchase Date as practicable, together with accrued and unpaid interest to the Repurchase Date payable with respect to the Securities as to which the purchase right has been exercised; provided, however, that installments of interest that mature on or prior to the Repurchase Date shall be payable in cash, in the case of Securities, to the Holders of such Securities, or one or more Predecessor Securities, registered as such at the Fundamental Change close of business on the relevant Regular Record Date, in each case according to the terms and provisions of Article III.
(d) If any Security (or portion thereof) surrendered for repurchase shall not be so paid on the Repurchase Date, the principal amount of such Security (or portion thereof, as the case may be) shall, subject until paid, bear interest to extension the extent permitted by applicable law from the Repurchase Date at the rate of 4% per annum, and each Security shall remain convertible into Common Stock until the principal of such Security (or portion thereof, as the case may be) shall have been paid or duly provided for.
(e) Any Security which is to comply with be repurchased only in part shall be surrendered to the Trustee (with, if the Company or the Trustee so requires, due endorsement by, or a written instrument of transfer in form satisfactory to the Company and the Trustee duly executed by, the Holder thereof or his attorney duly authorized in writing), and the Company shall execute, and the Trustee shall authenticate and make available for delivery to the Holder of such Security without service charge, a new Security or Securities, containing identical terms and conditions, each in an authorized denomination in aggregate principal amount equal to and in exchange for the unrepurchased portion of the principal of the Security so surrendered.
(f) Any issuance of Common Stock in respect of the Repurchase Price shall be deemed to have been effected immediately prior to the close of business on the Repurchase Date and the Person or Persons in whose name or names any certificate or certificates for Common Stock shall be issuable upon such repurchase shall be deemed to have become on the Repurchase Date the holder or holders of record of the shares represented thereby; provided, however, that any surrender for repurchase on a date when the stock transfer books of the Company shall be closed shall constitute the Person or Persons in whose name or names the certificate or certificates for such shares are to be issued as the recordholder or holders thereof for all purposes at the opening of business on the next succeeding day on which such stock transfer books are open. No payment or adjustment shall be made for dividends or distributions on any Common Stock issued upon repurchase of any Security declared prior to the Repurchase Date.
(g) No fractions of shares shall be issued upon repurchase of Securities. If more than one Security shall be repurchased from the same Holder and the Repurchase Price shall be payable in Common Stock, the number of full shares which shall be issuable upon such repurchase shall be computed on the basis of the aggregate principal amount of the Securities so repurchased. Instead of any fractional Common Share which would otherwise be issuable on the repurchase of any Security or Securities, the Company will deliver to the applicable lawHolder its check for the current market value of such fractional share. Owners The current market value of beneficial interests in Global a fraction of a share is determined by multiplying the current market price of a full share by the fraction, and rounding the result to the nearest cent. For purposes of this Section, the current market price of a Common Share is the Closing Price Per Share of the Common Stock on the last Trading Day prior to the Repurchase Date.
(h) Any issuance and delivery of certificates for Common Stock on repurchase of Securities shall provide a Repurchase Notice be made without charge to the Holder of Securities being repurchased for such certificates or Fundamental Change Repurchase Notice for any tax or duty in accordance with the Applicable Procedures respect of the Depositaryissuance or delivery of such certificates or the securities represented thereby; provided, however, that the Company shall not be required to pay any tax or duty which may be payable in respect of (i) income of the Holder or (ii) any transfer involved in the issuance or delivery of certificates for Common Stock in a name other than that of the Holder of the Securities being repurchased, and no such issuance or delivery shall be made unless and until the Person requesting such issuance or delivery has paid to the Company the amount of any such tax or duty or has established, to the satisfaction of the Company, that such tax or duty has been paid.
(i) If any Common Stock to be issued upon repurchase of Securities hereunder require registration with or approval of any governmental authority under any federal or state law before such shares may be validly issued or delivered upon repurchase, the Company covenants that it will in good faith and as expeditiously as possible endeavor to secure such registration or approval, as the case may be; provided, however, that nothing in this Section shall be deemed to affect in any way the obligations of the Company to repurchase Securities as provided in this Article and if such registration is not completed or does not become effective or such approval is not obtained prior to the Repurchase Date, the Repurchase Price shall be paid in cash.
(j) The Company covenants that all Common Stock which may be issued upon repurchase of Securities will upon issue be duly and validly issued and fully paid and nonassessable.
Appears in 1 contract
Samples: Convertible Subordinated Notes Agreement (America Online Inc)
Notices; Method of Exercising Repurchase Right, Etc. (a1) Unless the Company shall have theretofore called for redemption all of the outstanding Outstanding Securities, on or before the 30th day after the occurrence of a Change in Control, the Company or, at the request and expense of the Company on or before the 15th day after such occurrence, the Trustee, shall give to the Trustee, the Paying Agent and all Holders of Securities, in the manner provided in this Section 3.41.6, a notice containing the information required pursuant to the following provisions of this Section 3.4(a) (the "Company Notice") (i) on or before the 20th Business Day prior to the Repurchase Date or, in the event of a Fundamental Change arising from a Change of Control, the anticipated Effective Date (but in no event earlier than 45 days prior to the Repurchase Date or anticipated Effective Date, as the case may be), and (ii) within 15 Business Days after the Company knows or reasonably should know of the occurrence of a Fundamental the Change that arises in Control and of the repurchase right set forth herein arising as a result of any Termination of Trading. Prior to or concurrently with the delivery of any Company Notice, thereof and the Company will shall issue a press release or publish such information on the Company's then existing website Press Release including the information required to be included in such Company Notice hereunder. The Company shall also deliver a copy of any such Company Notice to the Trustee. At the request and expense of the Company on or before the fifth Business Day prior to the date on which the Company Notice is to be mailed, the Trustee shall provide the Company Notice to the Holders in accordance with the provisions of this Indenture. Each Company Notice shall state:
(i) the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be,
(ii) the date by which the repurchase right must be exercised,
(iii) the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, and whether the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, shall be paid by the Company in cash or by delivery of shares of Common Stock, or a specified combination thereof and the percentage of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, that will be paid in shares of Common Stock (which indication shall be irrevocable, subject to the satisfaction (or waiver) of the conditions set forth in Section 3.3),
(iv) if the notice relates to the occurrence of a Fundamental Change, the events causing the Fundamental Change and the date of the Fundamental Change,
(v) that Securities with respect to which a Holder gives a Repurchase Notice or Fundamental Change Repurchase Notice may be converted only if the Holder withdraws the Repurchase Notice or Fundamental Change Repurchase Notice as to such Securities in accordance with the terms of this Indenture,
(vi) a description of the procedure that a Holder must follow to exercise a repurchase right, and the place or places where such Securities are to be surrendered for payment of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, and accrued but unpaid interest (and including Liquidated Damages), if any, to, but excluding, the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be,)
(viiv) that on the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be, the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, and accrued but unpaid interest (and Liquidated Damages), if any, to, but excluding, the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be, will become due and payable upon each such Security designated by the Holder to be repurchased, and that interest thereon shall will cease to accrue on and after said such date,
(viiivi) the Conversion Price Rate then in effect,, whether the conversion rights are then exercisable, the date on which the right to convert the principal amount of the Securities to be repurchased will terminate and the place or places where such Securities may be surrendered for conversion, and
(ixvii) the place or places that the Security certificate (including with the Election of Holder to Require Repurchase attached thereto) and the Repurchase Notice (as defined below) specified in Section 2.2 shall be delivered, and, if the Security is a Restricted Security, the place or places that the Transfer Certificate in the form set forth in Exhibit C, required by Section 2.12 shall be delivered,
(x) the name and address of the Paying Agent and Conversion Agent, and
(xi) if the notice relates to a Fundamental Change, the estimated amount of any Make-Whole Premium and the respective percentages of such Make-Whole Premium that will be paid (as contemplated by Section 6.1(b)) in shares of Common Stock and in cash (which indication shall be irrevocable), subject to the satisfaction (or waiver) of the conditions set forth in Section 6.1(c), in the event that a Holder should, in lieu of electing to have Securities repurchased on the Fundamental Change Repurchase Date, elect to convert such Securities during the Fundamental Change Conversion Period, and
(xii) any other information to be included therein pursuant to Section 6.1. No failure of the Company to give the foregoing notices or defect therein shall limit any Holder's right to exercise a repurchase right or affect the validity of the proceedings for the repurchase of Securities. If any of the foregoing provisions or other provisions of this Article III XIV are inconsistent with applicable law, such law shall govern.
(b2) To exercise a repurchase right pursuant to Section 3.1 or Section 3.2right, a Holder shall deliver to the Paying Agent Trustee on or before the 20th Business Day after the date of the Company Notice (i) irrevocable written notice (in the case of a repurchase pursuant to Section 3.1, a "Repurchase Notice" and, in the case of a repurchase pursuant to Section 3.2, a "Fundamental Change Repurchase Notice") of the Holder's exercise of such right, which notice shall set forth the name of the Holder, the principal amount of the Securities to be repurchased (and, if any Security is to repurchased in part, the serial number thereof, the portion of the principal amount thereof to be repurchased (which portion must be in principal amounts of $1,000 or a whole multiple of $1,000) and the name of the Person in which the portion thereof to remain outstanding Outstanding after such repurchase is to be registered), if certificated, the certificate numbers of the Securities to be repurchased, ) and a statement that an election to exercise the repurchase right pursuant to the terms and conditions specified in the Securities and the Indenture is being made thereby, and, in the event that any portion of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, shall be paid in shares of Common Stock, the name or names (with addresses) in which the certificate or certificates for shares of Common Stock shall be issued, and (ii) the Securities with respect to which the Repurchase Notice or Fundamental Change Repurchase Notice relates at any time after delivery repurchase right is being exercised. Such written notice shall be irrevocable, except that the right of the Repurchase Notice or the Fundamental Change Repurchase Notice, as the case may be (together with all necessary endorsements), at the offices of the Paying Agent, such delivery being a condition Holder to receipt by the Holder of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, thereof; provided, however, that such Repurchase Price or Fundamental Change Repurchase Price, as the case may be, shall be so paid pursuant to this Section 3.4(b) only if convert the Securities so delivered with respect to which the Paying Agent shall conform in all respects to the description thereof in the related Repurchase Notice or Fundamental Change Repurchase Notice. In the case of a repurchase right pursuant to Section 3.1 and Section 3.2, such delivery is being exercised shall be at any time from the opening of business on the date that is 20 Business Days prior to the Repurchase Date continue until the close of business on the second Business Day immediately preceding the Repurchase Date.
(3) In the event a repurchase right shall be exercised in accordance with the terms hereof, the Company shall pay or cause to be paid to the Trustee the Repurchase Price in cash or shares of Common Stock, as provided above, for payment to the Holder on the Repurchase Date; provided, however, that installments of interest that mature on or prior to the Repurchase Date shall be payable in cash to the Holders of such Securities, or one or more Predecessor Securities, registered as such at the Fundamental Change close of business on the relevant Regular Record Date, or if shares of Common Stock are to be paid, on the date that is 45 days after the date of the Company Notice.
(4) If any Security (or portion thereof) surrendered for repurchase shall not be so paid on the Repurchase DateDate the principal amount of such Security (or portion thereof, as the case may be) shall, subject until paid, bear interest to extension the extent permitted by applicable law from the Repurchase Date at the rate of 2.50% per annum, and each such Security shall remain convertible into Common Stock until the principal of such Security (or portion thereof, as the case may be) shall have been paid or duly provided for.
(5) Any Security that is to comply with be repurchased only in part shall be surrendered to the Trustee (with, if the Company or the Trustee so requires, due endorsement by, or a written instrument of transfer in form satisfactory to the Company and the Trustee duly executed by, the Holder thereof or his attorney duly authorized in writing), and the Company shall execute, and the Trustee shall authenticate and make available for delivery to the Holder of such Security without service charge, a new Security or Securities, containing identical terms and conditions, each in an authorized denomination in aggregate principal amount equal to and in exchange for the unrepurchased portion of the principal of the Security so surrendered.
(6) Any issuance of shares of Common Stock in respect of the Repurchase Price shall be deemed to have been effected immediately prior to the close of business on the Repurchase Date and the Person or Persons in whose name or names any certificate or certificates for shares of Common Stock shall be issuable upon such repurchase shall be deemed to have become on the Repurchase Date the holder or holders of record of the shares represented thereby; provided, however, that any surrender for repurchase on a date when the stock transfer books of the Company shall be closed shall constitute the Person or Persons in whose name or names the certificate or certificates for such shares are to be issued as the record holder or holders thereof for all purposes at the opening of business on the next succeeding day on which such stock transfer books are open. No payment or adjustment shall be made for dividends or distributions on any Common Stock issued upon repurchase of any Security declared prior to the Repurchase Date.
(7) No fractions of shares shall be issued upon repurchase of Securities. If more than one Security shall be repurchased from the same Holder and the Repurchase Price shall be payable in shares of Common Stock, the number of full shares that shall be issuable upon such repurchase shall be computed on the basis of the aggregate principal amount of the Securities so repurchased. Instead of any fractional share of Common Stock that would otherwise be issuable on the repurchase of any Security or Securities, the Company will deliver to the applicable lawHolder its check for the current market value of such fractional share. Owners The current market value of beneficial interests in Global a fraction of a share is determined by multiplying the Current Market Price of a full share by the fraction, and rounding the result to the nearest U.S. $0.
01. For purposes of this Section, the Current Market Price of a share of Common Stock is the Closing Sale Price of the Common Stock on the Trading Day immediately preceding the Repurchase Date.
(8) Any issuance and delivery of certificates for shares of Common Stock on repurchase of Securities shall provide be made without charge to the Holder of Securities being repurchased for such certificates or for any tax or duty in respect of the issuance or delivery of such certificates or the securities represented thereby; provided, however, that the Company shall not be required to pay any tax or duty that may be payable in respect of (i) income of the Holder or (ii) any transfer involved in the issuance or delivery of certificates for shares of Common Stock in a Repurchase Notice name other than that of the Holder of the Securities being repurchased, and no such issuance or Fundamental Change Repurchase Notice delivery shall be made unless and until the Person requesting such issuance or delivery has paid to the Company the amount of any such tax or duty or has established, to the satisfaction of the Company, that such tax or duty has been paid.
(9) If shares of Common Stock to be delivered upon repurchase of a Security are to be registered in accordance a name other than that of the beneficial owner of such Security, then such Holder must deliver to the Trustee a Surrender Certificate, dated the date of surrender of such Restricted Security and signed by such beneficial owner, as to compliance with the Applicable Procedures restrictions on transfer applicable to such Restricted Security. Neither the Trustee nor any Registrar or Transfer Agent or other agents shall be required to register in a name other than that of the Depositarybeneficial owner shares of Common Stock issued upon repurchase of any such Restricted Security not so accompanied by a properly completed Surrender Certificate.
(10) All Securities delivered for repurchase shall be delivered to the Trustee to be canceled at the direction of the Trustee, which shall dispose of the same as provided in Section 3.9.
Appears in 1 contract
Samples: Indenture (Exult Inc)
Notices; Method of Exercising Repurchase Right, Etc. (a) Unless the Company shall have theretofore called for redemption all of the outstanding SecuritiesOutstanding Debentures, the Company shall give to the Trustee, the Paying Agent and all Holders of Securities, in the manner provided in this Section 3.4, a notice containing the information required pursuant to the following provisions of this Section 3.4(a) (the "Company Notice") (i) on or before the 20th Business Day prior to the Repurchase Date or, in the event of a Fundamental Change arising from a Change of Control, the anticipated Effective Date (but in no event earlier than 45 days prior to the Repurchase Date or anticipated Effective Date, as the case may be), and (ii) within 15 Business Days 30th day after the Company knows or reasonably should know of the occurrence of a Fundamental Change that arises as a result of any Termination of Trading. Prior to or concurrently with the delivery of any Company Noticein Control, the Company will issue a press release or publish such information on the Company's then existing website including the information required to be included in such Company Notice hereunder. The Company shall also deliver a copy of any Company Notice to the Trustee. At or, at the request and expense of the Company on or before the fifth Business Day prior to the date on which the Company Notice is to be mailed30th day after such occurrence, the Trustee Trustee, shall provide give to all Holders of Debentures notice (the "Company Notice") of the occurrence of the Change in Control and of the repurchase right set forth herein arising as a result thereof. The Company shall also deliver a copy of such Company Notice to the Holders in accordance with the provisions of this IndentureTrustee. Each Company Notice shall describe such Change in Control and shall further state:
(i) the Repurchase Date or the Fundamental Change Repurchase Date, as the case may beRepuxxxxxx Xxxx,
(iixx) the xxx date by which the repurchase right must be exercisedexercised pursuant to Section 4.03(b),
(iii) the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, and whether the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, shall be paid by the Company in cash or by delivery of shares of Common Stock, or a specified combination thereof and the percentage of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, that will be paid in shares of Common Stock (which indication shall be irrevocable, subject to the satisfaction (or waiver) of the conditions set forth in Section 3.3),
(iv) if the notice relates to the occurrence of a Fundamental Change, the events causing the Fundamental Change and the date of the Fundamental Change,
(v) that Securities with respect to which a Holder gives a Repurchase Notice or Fundamental Change Repurchase Notice may be converted only if the Holder withdraws the Repurchase Notice or Fundamental Change Repurchase Notice as to such Securities in accordance with the terms of this Indenture,
(vi) a description of the procedure that which a Holder must follow to exercise a repurchase right, and the place or places where such Securities Debentures, are to be surrendered for payment of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, and accrued but and unpaid interest (and Liquidated Damages)interest, if any, to, but excluding, the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be,
(viiv) that on the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be, the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, and accrued but and unpaid interest (and Liquidated Damages)interest, if any, to, but excluding, the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be, will become due and payable upon each such Security Debenture designated by the Holder to be repurchased, and that interest thereon shall cease to accrue on and after said date,, and
(viiivi) the Conversion Price (as defined in Section 5.01 hereof) then in effect,
(ix) , the date on which the right to convert the principal amount of the Debentures to be repurchased will terminate and the place or places that the Security certificate (including the Election of Holder to Require Repurchase attached thereto) and the Repurchase Notice (as defined below) shall where such Debentures may be delivered, and, if the Security is a Restricted Security, the place or places that the Transfer Certificate in the form set forth in Exhibit C, required by Section 2.12 shall be delivered,
(x) the name and address of the Paying Agent and Conversion Agent, and
(xi) if the notice relates to a Fundamental Change, the estimated amount of any Make-Whole Premium and the respective percentages of such Make-Whole Premium that will be paid (as contemplated by Section 6.1(b)) in shares of Common Stock and in cash (which indication shall be irrevocable), subject to the satisfaction (or waiver) of the conditions set forth in Section 6.1(c), in the event that a Holder should, in lieu of electing to have Securities repurchased on the Fundamental Change Repurchase Date, elect to convert such Securities during the Fundamental Change Conversion Period, and
(xii) any other information to be included therein pursuant to Section 6.1surrendered for conversion. No failure of the Company to give the foregoing notices or defect therein shall limit any Holder's right to exercise a repurchase right or affect the validity of the proceedings for the repurchase of Securities. If any of the foregoing provisions or other provisions of this Article III are inconsistent with applicable law, such law shall governDebentures.
(b) To exercise a repurchase right pursuant to Section 3.1 or Section 3.2right, a Holder shall deliver to the Paying Agent Trustee on or before the 30th day after the date of the Company Notice (i) written notice (in the case of a repurchase pursuant to Section 3.1, a "Repurchase Notice" and, in the case of a repurchase pursuant to Section 3.2, a "Fundamental Change Repurchase Notice") of the Holder's exercise of such right, which notice shall set forth the name of the Holder, the principal amount of the Securities Debentures to be repurchased (and, if any Security is Debentures are to be repurchased in part, the serial number thereof, the portion of the principal amount thereof to be repurchased (which portion must be in principal amounts of $1,000 or a whole multiple of $1,000) and the name of the Person in which the portion thereof to remain outstanding Outstanding after such repurchase is to be registered), if certificated, the certificate numbers of the Securities to be repurchased, ) and a statement that an election to exercise the repurchase right pursuant to the terms and conditions specified in the Securities and the Indenture is being made thereby, and, in the event that any portion of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, shall be paid in shares of Common Stock, the name or names (with addresses) in which the certificate or certificates for shares of Common Stock shall be issued, and (ii) the Securities Debentures with respect to which the Repurchase Notice or Fundamental Change Repurchase Notice relates at any time after delivery repurchase right is being exercised. Such written notice shall be irrevocable, except that the right of the Repurchase Notice or Holder to convert the Fundamental Change Repurchase Notice, as Debentures with respect to which the case may be (together with all necessary endorsements), at the offices of the Paying Agent, such delivery being a condition to receipt by the Holder of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, thereof; provided, however, that such Repurchase Price or Fundamental Change Repurchase Price, as the case may be, shall be so paid pursuant to this Section 3.4(b) only if the Securities so delivered to the Paying Agent shall conform in all respects to the description thereof in the related Repurchase Notice or Fundamental Change Repurchase Notice. In the case of a repurchase right pursuant to Section 3.1 and Section 3.2, such delivery is being exercised shall be at any time from the opening of business on the date that is 20 Business Days prior to the Repurchase Date continue until the close of business on the second Business Day prior to immediately preceding the Repurchase Date or Date.
(c) In the Fundamental Change Repurchase Date, as the case may be, subject to extension to comply with applicable law. Owners of beneficial interests in Global Securities event a repurchase right shall provide a Repurchase Notice or Fundamental Change Repurchase Notice be exercised in accordance with the Applicable Procedures terms hereof, the Company shall pay or cause to be paid to the Trustee the Repurchase Price in cash or shares of Common Stock, as provided above, for payment to the Depositary.Holder on the Repurchase Date or, if shares of Common Stock are to be paid, as promptly after the Repurchase Date as practicable, together with accrued and unpaid interest to, but excluding, the Repurchase Date payable with respect
Appears in 1 contract
Notices; Method of Exercising Repurchase Right, Etc. (a) Unless the Company shall have theretofore called for redemption all of the outstanding Outstanding Securities, prior to or on the 30th day after the occurrence of a Fundamental Change, the Company, or, at the written request and expense of the Company prior to or on the 30th day after such occurrence, the Trustee, shall give to the Trustee, the Paying Agent and all Holders of SecuritiesSecurities notice, in the manner provided in this Section 3.414.2 hereof, a notice containing the information required pursuant to the following provisions of this Section 3.4(a) (the "Company Notice") (i) on or before the 20th Business Day prior to the Repurchase Date or, in the event of a Fundamental Change arising from a Change of Control, the anticipated Effective Date (but in no event earlier than 45 days prior to the Repurchase Date or anticipated Effective Date, as the case may be), and (ii) within 15 Business Days after the Company knows or reasonably should know of the occurrence of a the Fundamental Change that arises and of the Repurchase Right set forth herein arising as a result of any Termination of Trading. Prior to or concurrently with thereof (the delivery of any “Company Notice, the Company will issue a press release or publish such information on the Company's then existing website including the information required to be included in such Company Notice hereunder”). The Company shall also deliver a copy of any Company Notice such notice of a Repurchase Right to the Trustee. At the request and expense Each notice of the Company on or before the fifth Business Day prior to the date on which the Company Notice is to be mailed, the Trustee shall provide the Company Notice to the Holders in accordance with the provisions of this Indenture. Each Company Notice a Repurchase Right shall state:
(i) the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be,;
(ii) the date by which the repurchase right Repurchase Right must be exercised,;
(iii) the Repurchase Price or the Fundamental Change Repurchase Priceand accrued and unpaid interest, as the case may be, and whether the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, shall be paid by the Company in cash or by delivery of shares of Common Stock, or a specified combination thereof and the percentage of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, that will be paid in shares of Common Stock (which indication shall be irrevocable, subject to the satisfaction (or waiver) of the conditions set forth in Section 3.3),if any;
(iv) if the notice relates to the occurrence of a Fundamental Change, the events causing the Fundamental Change and the date of the Fundamental Change,
(v) that Securities with respect to which a Holder gives a Repurchase Notice or Fundamental Change Repurchase Notice may be converted only if the Holder withdraws the Repurchase Notice or Fundamental Change Repurchase Notice as to such Securities in accordance with the terms of this Indenture,
(vi) a description of the procedure that which a Holder must follow to exercise a repurchase rightRepurchase Right, and the place or places where such Securities Securities, are to be surrendered for payment of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, and accrued but and unpaid interest (and Liquidated Damages)interest, if any, to, but excluding, the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be,;
(viiv) that on the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be, the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, and accrued but and unpaid interest (and Liquidated Damages)interest, if any, to, but excluding, the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be, will become due and payable upon each such Security designated by the Holder to be repurchased, and that interest thereon shall cease to accrue on and after said date,;
(viiivi) the Conversion Price Rate then in effect,, the place where such Securities may be surrendered for conversion and that Securities as to which a Fundamental Change Repurchase Notice has been given may be converted pursuant to Article XII of this Indenture only to the extent that the Fundamental Change Repurchase Notice has been withdrawn in accordance with the terms of this Indenture;
(ixvii) the place or places that where such Securities, together with the Security certificate (including the Election Fundamental Change Repurchase Notice included in Exhibit A annexed hereto, are to be delivered for payment of Holder to Require Repurchase attached thereto) and the Repurchase Notice (as defined below) shall be delivered, andPrice and accrued and unpaid interest, if the Security is a Restricted Security, the place or places that the Transfer Certificate in the form set forth in Exhibit C, required by Section 2.12 shall be delivered,
(x) the name and address of the Paying Agent and Conversion Agent, any; and
(xiviii) if the notice relates to whether a Fundamental Change, the estimated amount of any Make-Whole Premium and the respective percentages of such Make-Whole Premium that will be paid (as contemplated by Section 6.1(b)) in shares of Common Stock and in cash (which indication shall be irrevocable), subject to payable by the satisfaction (or waiver) of the conditions set forth in Section 6.1(c), in the event that a Holder should, in lieu of electing to have Securities repurchased on the Fundamental Change Repurchase Date, elect to convert such Securities during the Fundamental Change Conversion Period, and
(xii) any other information to be included therein pursuant to Section 6.1Company upon conversion. No failure of the Company to give the foregoing notices or defect therein shall limit any Holder's ’s right to exercise a repurchase right Repurchase Right or affect the validity of the proceedings for the repurchase of Securities. If any of the foregoing provisions or other provisions of this Article III XI are inconsistent with applicable law, such law shall govern.
(b) To exercise a repurchase right pursuant to Section 3.1 or Section 3.2Repurchase Right in respect of a Security, a Holder shall deliver to the Paying Agent (i) a written notice of the exercise of such right (in the case of a repurchase pursuant to Section 3.1, a "Repurchase Notice" and, in the case of a repurchase pursuant to Section 3.2, a "“Fundamental Change Repurchase Notice"”) to the Trustee prior to the Repurchase Date. Such Fundamental Change Repurchase Notice shall state:
(i) the certificate number (if such Security is not a Global Security) of the Holder's exercise of such right, Security which notice shall set forth the name of the Holder, the principal amount of the Securities Holder will deliver to be repurchased purchased;
(and, if any Security is to repurchased in part, ii) the portion of the principal amount thereof of the Security which the Holder will deliver to be repurchased (which portion must be purchased in principal amounts of $1,000 or a whole multiple integral multiples of $1,000; and
(iii) and the name that such Security shall be purchased as of the Person in which the portion thereof to remain outstanding after such repurchase is to be registered), if certificated, the certificate numbers of the Securities to be repurchased, and a statement that an election to exercise the repurchase right Repurchase Date pursuant to the terms and conditions specified in the Securities and the Indenture is being made thereby, and, in the event that any portion this Indenture. The delivery of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, shall be paid in shares of Common Stock, the name or names (with addresses) in a Security for which the certificate or certificates for shares of Common Stock shall be issued, and (ii) the Securities to which the Repurchase Notice or a Fundamental Change Repurchase Notice relates at any time after delivery of has been timely delivered to the Repurchase Notice or the Fundamental Change Repurchase Notice, as the case may be Trustee and not validly withdrawn (together with all necessary endorsements), ) at the offices office of the Paying Agent, such delivery being Trustee shall be a condition to the receipt by the Holder of the Repurchase Price or therefor. Anything herein to the contrary notwithstanding, in the case of Global Securities, any Fundamental Change Repurchase PriceNotice may be delivered or withdrawn and such Securities may be surrendered or delivered for purchase in accordance with the Applicable Procedures as in effect from time to time.
(c) In the event a Repurchase Right shall be exercised in accordance with the terms hereof (unless a Fundamental Change Repurchase Notice is withdrawn as specified in Section 11.3(f)), the Company shall pay or cause to be paid to the Trustee the Repurchase Price in cash, as provided above, for payment to the Holder on the Repurchase Date, together with accrued and unpaid interest to the Repurchase Date payable in cash with respect to the Securities as to which the Repurchase Right has been exercised; provided, however, that installments of interest that mature prior to or on the Repurchase Date shall be payable in cash to the Holders of such Securities, or one or more Predecessor Securities, registered as such at the close of business on the relevant Regular Record Date.
(d) If any Security (or portion thereof) surrendered for repurchase shall not be so paid on the Repurchase Date, the principal amount of such Security (or portion thereof, as the case may be) shall, thereof; provideduntil paid, howeverbear interest to the extent permitted by applicable law from the Repurchase Date at the rate of interest on the Security, that such Repurchase Price or and each Security shall, to the extent the Fundamental Change Repurchase PriceNotice in respect thereof is withdrawn in accordance with the provisions of Section 11.3(f), remain convertible into Common Stock until the principal of such Security (or portion thereof, as the case may be, ) shall have been paid or duly provided for.
(e) Any Security which is to be repurchased only in part shall be so paid pursuant surrendered to this Section 3.4(b) only the Trustee (with, if the Securities Company or the Trustee so delivered requires, due endorsement by, or a written instrument of transfer in form satisfactory to the Paying Agent Company and the Trustee duly executed by the Holder thereof or his attorney duly authorized in writing), and the Company shall conform in all respects execute, and the Trustee shall authenticate and make available for delivery to the description thereof Holder of such Security without service charge, a new Security or Securities, containing identical terms and conditions, each in an authorized denomination in aggregate principal amount equal to and in exchange for the related Repurchase Notice or Fundamental Change Repurchase Notice. In the case of a repurchase right pursuant to Section 3.1 and Section 3.2, such delivery shall be at any time from the opening of business on the date that is 20 Business Days prior to the Repurchase Date until the close of business on the second Business Day prior to the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be, subject to extension to comply with applicable law. Owners of beneficial interests in Global Securities shall provide a Repurchase Notice or Fundamental Change Repurchase Notice in accordance with the Applicable Procedures unrepurchased portion of the Depositaryprincipal of the Security so surrendered.
Appears in 1 contract
Samples: Indenture (Nektar Therapeutics)
Notices; Method of Exercising Repurchase Right, Etc. (a1) Unless the Company shall have theretofore called for redemption all of the outstanding Outstanding Securities, on or before the 30th day after the occurrence of a Change in Control, the Company or, at the request and expense of the Company on or before the 15th day after such occurrence, the Trustee, shall give to the Trustee, the Paying Agent and all Holders of Securities, in the manner provided in this Section 3.41.6, a notice containing the information required pursuant to the following provisions of this Section 3.4(a) (the "Company Notice") (i) on or before the 20th Business Day prior to the Repurchase Date or, in the event of a Fundamental Change arising from a Change of Control, the anticipated Effective Date (but in no event earlier than 45 days prior to the Repurchase Date or anticipated Effective Date, as the case may be), and (ii) within 15 Business Days after the Company knows or reasonably should know of the occurrence of a Fundamental the Change that arises of Control and of the repurchase right set forth herein arising as a result of any Termination of Trading. Prior to or concurrently with the delivery of any Company Notice, thereof and the Company will shall issue a press release or publish such information on the Company's then existing website Press Release including the information required to be included in such Company Notice hereunder. The Company shall also deliver a copy of any such Company Notice to the Trustee. At the request and expense of the Company on or before the fifth Business Day prior to the date on which the Company Notice is to be mailed, the Trustee shall provide the Company Notice to the Holders in accordance with the provisions of this Indenture. Each Company Notice shall state:
(i) the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be,
(ii) the date by which the repurchase right must be exercised,
(iii) the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, and whether the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, shall be paid by the Company in cash or by delivery of shares of Common Stock, or a specified combination thereof and the percentage of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, that will be paid in shares of Common Stock (which indication shall be irrevocable, subject to the satisfaction (or waiver) of the conditions set forth in Section 3.3),
(iv) if the notice relates to the occurrence of a Fundamental Change, the events causing the Fundamental Change and the date of the Fundamental Change,
(v) that Securities with respect to which a Holder gives a Repurchase Notice or Fundamental Change Repurchase Notice may be converted only if the Holder withdraws the Repurchase Notice or Fundamental Change Repurchase Notice as to such Securities in accordance with the terms of this Indenture,
(vi) a description of the procedure that a Holder must follow to exercise a repurchase right, and the place or places where such Securities are to be surrendered for payment of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, and accrued but unpaid interest (and Liquidated Damages), if any, to, but excluding, the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be,
(viiv) that on the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be, the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, and accrued but unpaid interest (and Liquidated Damages), if any, to, but excluding, the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be, will become due and payable upon each such Security designated by the Holder to be repurchased, and that interest thereon shall Liquidated Damages will cease to accrue on and after said such date,
(viiivi) the Conversion Price Rate then in effect,, the date on which the right to convert the principal amount of the Securities to be repurchased will terminate and the place or places where such Securities may be surrendered for conversion, and
(ixvii) the place or places that the Security certificate (including with the Election of Holder to Require Repurchase attached thereto) and the Repurchase Notice (as defined below) specified in Section 2.2 shall be delivered, and, if the Security is a Restricted Security, the place or places that the Transfer Certificate in the form set forth in Exhibit C, required by Section 2.12 shall be delivered,
(x) the name and address of the Paying Agent and Conversion Agent, and
(xi) if the notice relates to a Fundamental Change, the estimated amount of any Make-Whole Premium and the respective percentages of such Make-Whole Premium that will be paid (as contemplated by Section 6.1(b)) in shares of Common Stock and in cash (which indication shall be irrevocable), subject to the satisfaction (or waiver) of the conditions set forth in Section 6.1(c), in the event that a Holder should, in lieu of electing to have Securities repurchased on the Fundamental Change Repurchase Date, elect to convert such Securities during the Fundamental Change Conversion Period, and
(xii) any other information to be included therein pursuant to Section 6.1. No failure of the Company to give the foregoing notices or defect therein shall limit any Holder's right to exercise a repurchase right or affect the validity of the proceedings for the repurchase of Securities. If any of the foregoing provisions or other provisions of this Article III XIV are inconsistent with applicable law, such law shall govern.
(b2) To exercise a repurchase right pursuant to Section 3.1 or Section 3.2right, a Holder shall deliver to the Paying Agent Trustee on or before the 30th day after the date of the Company Notice (i) irrevocable written notice (in the case of a repurchase pursuant to Section 3.1, a "Repurchase Notice" and, in the case of a repurchase pursuant to Section 3.2, a "Fundamental Change Repurchase Notice") of the Holder's exercise of such right, which notice shall set forth the name of the Holder, the principal amount of the Securities to be repurchased (and, if any Security is to repurchased in part, the serial number thereof, the portion of the principal amount thereof to be repurchased (which portion must be in principal amounts of $1,000 or a whole multiple of $1,000) and the name of the Person in which the portion thereof to remain outstanding Outstanding after such repurchase is to be registered), if certificated, the certificate numbers of the Securities to be repurchased, ) and a statement that an election to exercise the repurchase right pursuant to the terms and conditions specified in the Securities and the Indenture is being made thereby, and, in the event that any portion of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, shall be paid in shares of Common Stock, the name or names (with addresses) in which the certificate or certificates for shares of Common Stock shall be issued, and (ii) the Securities with respect to which the Repurchase Notice or Fundamental Change Repurchase Notice relates at any time after delivery repurchase right is being exercised. Such written notice shall be irrevocable, except that the right of the Repurchase Notice or the Fundamental Change Repurchase Notice, as the case may be (together with all necessary endorsements), at the offices of the Paying Agent, such delivery being a condition Holder to receipt by the Holder of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, thereof; provided, however, that such Repurchase Price or Fundamental Change Repurchase Price, as the case may be, shall be so paid pursuant to this Section 3.4(b) only if convert the Securities so delivered with respect to which the Paying Agent shall conform in all respects to the description thereof in the related Repurchase Notice or Fundamental Change Repurchase Notice. In the case of a repurchase right pursuant to Section 3.1 and Section 3.2, such delivery is being exercised shall be at any time from the opening of business on the date that is 20 Business Days prior to the Repurchase Date continue until the close of business on the second Business Day prior immediately preceding the Repurchase Date.
(3) In the event a repurchase right shall be exercised in accordance with the terms hereof, the Company shall pay or cause to be paid to the Trustee the Repurchase Price in cash or shares of Common Stock, as provided above, for payment to the Holder on the Repurchase Date or, if shares of Common Stock are to be paid, on the date that is 45 days after the date of the Company's notice.
(4) If any Security (or portion thereof) surrendered for repurchase shall not be so paid on the Fundamental Change Repurchase Date, each such Security shall remain convertible into Common Stock until the principal of such Security (or portion thereof, as the case may be) shall have been paid or duly provided for.
(5) Any Security that is to be repurchased only in part shall be surrendered to the Trustee (with, subject if the Company or the Trustee so requires, due endorsement by, or a written instrument of transfer in form satisfactory to extension the Company and the Trustee duly executed by, the Holder thereof or his attorney duly authorized in writing), and the Company shall execute, and the Trustee shall authenticate and make available for delivery to comply with the Holder of such Security without service charge, a new Security or Securities, containing identical terms and conditions, each in an authorized denomination in aggregate principal amount equal to and in exchange for the unrepurchased portion of the principal of the Security so surrendered.
(6) Any issuance of shares of Common Stock in respect of the Repurchase Price shall be deemed to have been effected immediately prior to the close of business on the Repurchase Date and the Person or Persons in whose name or names any certificate or certificates for shares of Common Stock shall be issuable upon such repurchase shall be deemed to have become on the Repurchase Date the holder or holders of record of the shares represented thereby; provided, however, that any surrender for repurchase on a date when the stock transfer books of the Company shall be closed shall constitute the Person or Persons in whose name or names the certificate or certificates for such shares are to be issued as the record holder or holders thereof for all purposes at the opening of business on the next succeeding day on which such stock transfer books are open. No payment or adjustment shall be made for dividends or distributions on any Common Stock issued upon repurchase of any Security declared prior to the Repurchase Date.
(7) No fractions of shares shall be issued upon repurchase of Securities. If more than one Security shall be repurchased from the same Holder and the Repurchase Price shall be payable in shares of Common Stock, the number of full shares that shall be issuable upon such repurchase shall be computed on the basis of the aggregate principal amount of the Securities so repurchased. Instead of any fractional share of Common Stock that would otherwise be issuable on the repurchase of any Security or Securities, the Company will deliver to the applicable lawHolder its check for the current market value of such fractional share. Owners The current market value of beneficial interests in Global a fraction of a share is determined by multiplying the current market price of a full share by the fraction, and rounding the result to the nearest cent. For purposes of this Section, the current market price of a share of Common Stock is the Closing Price Per Share of the Common Stock on the Trading Day immediately preceding the Repurchase Date.
(8) Any issuance and delivery of certificates for shares of Common Stock on repurchase of Securities shall provide be made without charge to the Holder of Securities being repurchased for such certificates or for any tax or duty in respect of the issuance or delivery of such certificates or the securities represented thereby; provided, however, that the Company shall not be required to pay any tax or duty that may be payable in respect of (i) income of the Holder or (ii) any transfer involved in the issuance or delivery of certificates for shares of Common Stock in a Repurchase Notice name other than that of the Holder of the Securities being repurchased, and no such issuance or Fundamental Change Repurchase Notice delivery shall be made unless and until the Person requesting such issuance or delivery has paid to the Company the amount of any such tax or duty or has established, to the satisfaction of the Company, that such tax or duty has been paid.
(9) If shares of Common Stock to be delivered upon repurchase of a Security are to be registered in accordance a name other than that of the beneficial owner of such Security, then such Holder must deliver to the Trustee a Surrender Certificate, dated the date of surrender of such Restricted Security and signed by such beneficial owner, as to compliance with the Applicable Procedures restrictions on transfer applicable to such Restricted Security. Neither the Trustee nor any Registrar or Transfer Agent or other agents shall be required to register in a name other than that of the Depositarybeneficial owner shares of Common Stock issued upon repurchase of any such Restricted Security not so accompanied by a properly completed Surrender Certificate.
(10) All Securities delivered for repurchase shall be delivered to the Trustee to be canceled at the direction of the Trustee, which shall dispose of the same as provided in Section 3.9.
Appears in 1 contract
Samples: Indenture (Realnetworks Inc)
Notices; Method of Exercising Repurchase Right, Etc. (a1) Unless the Company shall have theretofore called for redemption all of the outstanding Outstanding Securities, on or before the 30th day after the occurrence of a Change in Control, the Company or, at the request and expense of the Company on or before the 15th day after such occurrence, the Trustee, shall give to the Trustee, the Paying Agent and all Holders of Securities, in the manner provided in this Section 3.41.6, a notice containing the information required pursuant to the following provisions of this Section 3.4(a) (the "Company Notice") (i) on or before the 20th Business Day prior to the Repurchase Date or, in the event of a Fundamental Change arising from a Change of Control, the anticipated Effective Date (but in no event earlier than 45 days prior to the Repurchase Date or anticipated Effective Date, as the case may be), and (ii) within 15 Business Days after the Company knows or reasonably should know of the occurrence of a Fundamental the Change that arises in Control and of the repurchase right set forth herein arising as a result of any Termination of Trading. Prior to or concurrently with the delivery of any Company Notice, thereof and the Company will shall issue a press release or publish such information on the Company's then existing website Press Release including the information required to be included in such Company Notice hereunder. The Company shall also deliver a copy of any such Company Notice to the Trustee. At the request and expense of the Company on or before the fifth Business Day prior to the date on which the Company Notice is to be mailed, the Trustee shall provide the Company Notice to the Holders in accordance with the provisions of this Indenture. Each Company Notice shall state:
(i) the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be,
(ii) the date by which the repurchase right must be exercised,
(iii) the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, and whether the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, shall be paid by the Company in cash or by delivery of shares of Common Stock, or a specified combination thereof and the percentage of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, that will be paid in shares of Common Stock (which indication shall be irrevocable, subject to the satisfaction (or waiver) of the conditions set forth in Section 3.3),
(iv) if the notice relates to the occurrence of a Fundamental Change, the events causing the Fundamental Change and the date of the Fundamental Change,
(v) that Securities with respect to which a Holder gives a Repurchase Notice or Fundamental Change Repurchase Notice may be converted only if the Holder withdraws the Repurchase Notice or Fundamental Change Repurchase Notice as to such Securities in accordance with the terms of this Indenture,
(vi) a description of the procedure that a Holder must follow to exercise a repurchase right, and the place or places where such Securities are to be surrendered for payment of the Repurchase Price or and accrued but unpaid interest (including Liquidated Damages, if any), if any, to the Fundamental Change Repurchase Date,
(v) that on the Repurchase Date the Repurchase Price, as the case may be, and accrued but unpaid interest (and including Liquidated Damages, if any), if any, to, but excluding, to the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be,
(vii) that on the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be, the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, and accrued but unpaid interest (and Liquidated Damages), if any, to, but excluding, the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be, will become due and payable upon each such Security designated by the Holder to be repurchased, and that interest thereon shall cease to accrue on and after said date,
(viiivi) the Conversion Price Rate then in effect,, the date on which the right to convert the principal amount of the Securities to be repurchased will terminate and the place or places where such Securities may be surrendered for conversion, and
(ixvii) the place or places that the Security certificate (including with the Election of Holder to Require Repurchase attached thereto) and the Repurchase Notice (as defined below) specified in Section 2.2 shall be delivered, and, and if the Security is a Restricted Security, Securities Certificate the place or places that the Transfer Surrender Certificate in the form set forth in Exhibit C, required by Section 2.12 15.3(9) shall be delivered,
(x) the name and address of the Paying Agent and Conversion Agent, and
(xi) if the notice relates to a Fundamental Change, the estimated amount of any Make-Whole Premium and the respective percentages of such Make-Whole Premium that will be paid (as contemplated by Section 6.1(b)) in shares of Common Stock and in cash (which indication shall be irrevocable), subject to the satisfaction (or waiver) of the conditions set forth in Section 6.1(c), in the event that a Holder should, in lieu of electing to have Securities repurchased on the Fundamental Change Repurchase Date, elect to convert such Securities during the Fundamental Change Conversion Period, and
(xii) any other information to be included therein pursuant to Section 6.1. No failure of the Company to give the foregoing notices or defect therein shall limit any Holder's ' s right to exercise a repurchase right or affect the validity of the proceedings for the repurchase of Securities. If any of the foregoing provisions or other provisions of this Article III XV are inconsistent with applicable law, such law shall govern.
(b2) To exercise a repurchase right pursuant to Section 3.1 or Section 3.2right, a Holder shall deliver to the Paying Agent Trustee on or before the 30th day after the date of the Company Notice (i) irrevocable written notice (in the case of a repurchase pursuant to Section 3.1, a "Repurchase Notice" and, in the case of a repurchase pursuant to Section 3.2, a "Fundamental Change Repurchase Notice") of the Holder's exercise of such right, which notice shall set forth the name of the Holder, the principal amount of the Securities to be repurchased (and, if any Security is to repurchased in part, the serial number thereof, the portion of the principal amount thereof to be repurchased (which portion must be in principal amounts of $1,000 or a whole multiple of $1,000) and the name of the Person in which the portion thereof to remain outstanding Outstanding after such repurchase is to be registered), if certificated, the certificate numbers of the Securities to be repurchased, ) and a statement that an election to exercise the repurchase right pursuant to the terms and conditions specified in the Securities and the Indenture is being made thereby, and, in the event that any portion of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, shall be paid in shares of Common Stock, the name or names (with addresses) in which the certificate or certificates for shares of Common Stock shall be issued, and (ii) the Securities with respect to which the Repurchase Notice or Fundamental Change Repurchase Notice relates at any time after delivery repurchase right is being exercised. Such written notice shall be irrevocable, except that the right of the Repurchase Notice or the Fundamental Change Repurchase Notice, as the case may be (together with all necessary endorsements), at the offices of the Paying Agent, such delivery being a condition Holder to receipt by the Holder of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, thereof; provided, however, that such Repurchase Price or Fundamental Change Repurchase Price, as the case may be, shall be so paid pursuant to this Section 3.4(b) only if convert the Securities so delivered with respect to which the Paying Agent shall conform in all respects to the description thereof in the related Repurchase Notice or Fundamental Change Repurchase Notice. In the case of a repurchase right pursuant to Section 3.1 and Section 3.2, such delivery is being exercised shall be at any time from the opening of business on the date that is 20 Business Days prior to the Repurchase Date continue until the close of business on the second Business Day immediately preceding the Repurchase Date.
(3) In the event a repurchase right shall be exercised in accordance with the terms hereof, the Company shall pay or cause to be paid to the Trustee the Repurchase Price in cash or shares of Common Stock, as provided above, for payment to the Holder on the Repurchase Date or, if shares of Common Stock are to be paid, as promptly after the Repurchase Date as practicable, together with accrued and unpaid interest to the Repurchase Date payable with respect to the Securities as to which the repurchase right has been exercised; provided, however, that installments of interest that mature on or prior to the Repurchase Date shall be payable in cash to the Holders of such Securities, or one or more Predecessor Securities, registered as such at the Fundamental Change close of business on the relevant Regular Record Date.
(4) If any Security (or portion thereof) surrendered for repurchase shall not be so paid on the Repurchase Date, the principal amount of such Security (or portion thereof, as the case may be) shall, subject until paid, bear interest to extension the extent permitted by applicable law from the Repurchase Date at the rate of 5.25% per annum, and each Security shall remain convertible into Common Stock until the principal of such Security (or portion thereof, as the case may be) shall have been paid or duly provided for.
(5) Any Security that is to comply be repurchased only in part shall be surrendered to the Trustee (with, if the Company or the Trustee so requires, due endorsement by, or a written instrument of transfer in form satisfactory to the Company and the Trustee duly executed by, the Holder thereof or his attorney duly authorized in writing), and the Company shall execute, and the Trustee shall authenticate and make available for delivery to the Holder of such Security without service charge, a new Security or Securities, containing identical terms and conditions, each in an authorized denomination in aggregate principal amount equal to and in exchange for the unrepurchased portion of the principal of the Security so surrendered.
(6) Any issuance of shares of Common Stock in respect of the Repurchase Price shall be deemed to have been effected immediately prior to the close of business on the Repurchase Date and at such time the rights of the Holders of the Securities repurchased with applicable lawsuch shares of Common Stock as Holders shall cease, and the Person or Persons in whose name or names any certificate or -118- certificates for shares of Common Stock shall be issuable upon such repurchase shall be deemed to have become on the Repurchase Date the holder or holders of record of the shares represented thereby; provided, however, that any surrender for repurchase on a date when the stock transfer books of the Company shall be closed shall constitute the Person or Persons in whose name or names the certificate or certificates for such shares are to be issued as the record holder or holders thereof for all purposes at the opening of business on the next succeeding day on which such stock transfer books are open. Owners No payment or adjustment shall be made for dividends or distributions on any Common Stock issued upon repurchase of beneficial interests any Security declared prior to the Repurchase Date.
(7) No fractional shares of Common Stock shall be issued upon repurchase of any Security or Securities. If more than one Security shall be repurchased from the same Holder and the Repurchase Price shall be payable in Global shares of Common Stock, the number of full shares that shall be issuable upon such repurchase shall be computed on the basis of the aggregate principal amount of the Securities (or specified portions thereof) so repurchased. Instead of any fractional share of Common Stock that would otherwise be issuable on the repurchase of any Security or Securities (or specified portions thereof), the Company will make a cash payment in respect of such fraction (calculated to the nearest 1/100th of a share) in an amount equal to the same fraction of the Closing Price Per Share (as determined by the Company) of the Common Stock on the Trading Day immediately preceding the Repurchase Date.
(8) Any issuance and delivery of certificates for shares of Common Stock on repurchase of Securities shall provide be made without charge to the Holder of Securities being repurchased for such certificates or for any tax or duty in respect of the issuance or delivery of such certificates or the securities represented thereby; provided, however, that the Company shall not be required to pay any tax or duty that may be payable in respect of (i) income of the Holder or (ii) any transfer involved in the issuance or delivery of certificates for shares of Common Stock in a Repurchase Notice name other than that of the Holder of the Securities being repurchased, and no such issuance or Fundamental Change Repurchase Notice delivery shall be made unless and until the Person requesting such issuance or delivery has paid to the Company the amount of any such tax or duty or has established, to the satisfaction of the Company, that such tax or duty has been paid.
(9) If shares of Common Stock to be delivered upon repurchase of a Security are to be registered in accordance a name other than that of the beneficial owner of such Security, then such Holder must deliver to the Trustee a Surrender Certificate, dated the date of surrender of such Restricted Security and signed by such beneficial owner, as to compliance with the Applicable Procedures restrictions on transfer applicable to such Restricted Security. Neither the Trustee nor any Registrar or Transfer Agent or other agents shall be required to register in a name other than that of the Depositarybeneficial owner shares of Common Stock issued upon repurchase of any such Restricted Security not so accompanied by a properly completed Surrender Certificate.
(10) All Securities delivered for repurchase shall be delivered to the Trustee to be canceled at the direction of the Trustee, which shall dispose of the same as provided in Section 3.9.
Appears in 1 contract
Samples: Indenture (Atmi Inc)
Notices; Method of Exercising Repurchase Right, Etc. (a) Unless the Company shall have theretofore called for redemption all of the outstanding SecuritiesNotes and deposited or set aside an amount of money sufficient to redeem such Notes on the redemption date as set forth in Section 3.2, on or before the fifth (5th) Business Day following the occurrence of a Repurchase Event, the Company shall give to or, at the written request of the Company, the Trustee, shall mail to all holders of record of the Paying Agent and all Holders of Securities, in the manner provided in this Section 3.4, Notes a notice containing the information required pursuant to the following provisions of this Section 3.4(a) (the "Company Notice") (i) on or before the 20th Business Day prior to the Repurchase Date or, in the event of a Fundamental Change arising from a Change of Control, the anticipated Effective Date (but in no event earlier than 45 days prior to the Repurchase Date or anticipated Effective Date, form as the case may be), and (ii) within 15 Business Days after prepared by the Company knows or reasonably should know of the occurrence of a Fundamental Change that arises the Repurchase Event and of the repurchase right set forth herein arising as a result of any Termination of Tradingthereof. Prior to or concurrently with the delivery of any The Company Notice, the Company will shall issue a press release or publish with respect to such information Repurchase Event, and shall use commercially reasonable efforts to have such press release available on the Company's then existing website including the information required to be included in such Company Notice hereunderBloomberg Business News. The Company shall also deliver a copy of any Company Notice such notice of a repurchase right to the Trustee. At the request Trustee and expense cause a copy of such notice of a repurchase right, or a summary of the Company on or before the fifth Business Day prior to the date on which the Company Notice is information contained therein, to be mailed, the Trustee shall provide the Company Notice to the Holders published once in accordance with the provisions a newspaper of this Indenturegeneral circulation in The City of New York. Each The Company Notice shall statecontain the following information:
(i1) the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be,repurchase date;
(ii2) the CUSIP number(s) of the Note(s) subject to the repurchase right;
(3) the date by which the repurchase right must be exercised,;
(iii4) the last date by which the election to require repurchase, if submitted, must be revoked;
(5) the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, and whether the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, shall be paid by the Company in cash or by delivery of shares of Common Stock, or a specified combination thereof and the percentage of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, that will be paid in shares of Common Stock (which indication shall be irrevocable, subject to the satisfaction (or waiver) of the conditions set forth in Section 3.3),;
(iv) if the notice relates to the occurrence of a Fundamental Change, the events causing the Fundamental Change and the date of the Fundamental Change,
(v) that Securities with respect to which a Holder gives a Repurchase Notice or Fundamental Change Repurchase Notice may be converted only if the Holder withdraws the Repurchase Notice or Fundamental Change Repurchase Notice as to such Securities in accordance with the terms of this Indenture,
(vi6) a description of the procedure that which a Holder holder must follow to exercise a repurchase right, and the place or places where such Securities are to be surrendered for payment of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, and accrued but unpaid interest (and Liquidated Damages), if any, to, but excluding, the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be,; and
(vii) that on the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be, the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, and accrued but unpaid interest (and Liquidated Damages), if any, to, but excluding, the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be, will become due and payable upon each such Security designated by the Holder to be repurchased, and that interest thereon shall cease to accrue on and after said date,
(viii7) the Conversion Price then in effect,
(ix) , the date on which the right to convert the principal amount of the Notes to be repurchased will terminate and the place or places that the Security certificate (including the Election of Holder to Require Repurchase attached thereto) and the Repurchase Notice (as defined below) shall where Notes may be delivered, and, if the Security is a Restricted Security, the place or places that the Transfer Certificate in the form set forth in Exhibit C, required by Section 2.12 shall be delivered,
(x) the name and address of the Paying Agent and Conversion Agent, and
(xi) if the notice relates to a Fundamental Change, the estimated amount of any Make-Whole Premium and the respective percentages of such Make-Whole Premium that will be paid (as contemplated by Section 6.1(b)) in shares of Common Stock and in cash (which indication shall be irrevocable), subject to the satisfaction (or waiver) of the conditions set forth in Section 6.1(c), in the event that a Holder should, in lieu of electing to have Securities repurchased on the Fundamental Change Repurchase Date, elect to convert such Securities during the Fundamental Change Conversion Period, and
(xii) any other information to be included therein pursuant to Section 6.1surrendered for conversion. No failure of the Company to give the foregoing notices or defect therein shall limit any Holderholder's right to exercise a repurchase right or affect the validity of the proceedings for the repurchase of SecuritiesNotes. If any of the foregoing provisions or other provisions of this Article III are inconsistent with applicable law, such law shall govern.
(b) To exercise a repurchase right pursuant to Section 3.1 or Section 3.2right, a Holder holder shall deliver to the Paying Agent Trustee on or before the close of business on the thirty-fifth (35th) day after the Company Notice was mailed (i) written notice to the Company (in or agent designated by the case of a repurchase pursuant to Section 3.1, a "Repurchase Notice" and, in the case of a repurchase pursuant to Section 3.2, a "Fundamental Change Repurchase Notice"Company for such purpose) of the Holderholder's exercise of such right, which notice shall set forth the name of the Holderholder, the principal amount of the Securities to be repurchased (and, if any Security is to repurchased in part, the portion of the principal amount thereof to be repurchased (which portion must be in principal amounts of $1,000 or a whole multiple of $1,000) and the name of the Person in which the portion thereof to remain outstanding after such repurchase is to be registered), if certificated, the certificate numbers of the Securities Notes to be repurchased, and a statement that an -84- election to exercise the repurchase right pursuant to the terms and conditions specified in the Securities and the Indenture is being made thereby, and, in the event that any portion of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, shall be paid in shares of Common Stock, the name or names (with addresses) in which the certificate or certificates for shares of Common Stock shall be issued, and (ii) the Securities Notes with respect to which the Repurchase Notice or Fundamental Change Repurchase Notice relates repurchase right is being exercised, duly endorsed for transfer to the Company. Election of repurchase by a holder shall be revocable at any time after delivery of prior to, but excluding, the Repurchase Notice or the Fundamental Change Repurchase Noticerepurchase date, as the case may be (together with all necessary endorsements), at the offices of the Paying Agent, such delivery being a condition by delivering written notice to receipt by the Holder of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, thereof; provided, however, that such Repurchase Price or Fundamental Change Repurchase Price, as the case may be, shall be so paid pursuant to this Section 3.4(b) only if the Securities so delivered effect to the Paying Agent shall conform in all respects to the description thereof in the related Repurchase Notice or Fundamental Change Repurchase Notice. In the case of a repurchase right pursuant to Section 3.1 and Section 3.2, such delivery shall be at any time from the opening of business on the date that is 20 Business Days Trustee prior to the Repurchase Date until the close of business on the second Business Day prior to the repurchase date.
(c) If the Company fails to repurchase on the repurchase date any Notes (or portions thereof) as to which the repurchase right has been properly exercised, then the principal of such Notes shall, until paid, bear interest to the extent permitted by applicable law from the repurchase date at the rate borne by the Note and each such Note shall be convertible into Common Stock in accordance with this Indenture (without giving effect to Section 16.2(b)) until the principal of such Note shall have been paid or duly provided for.
(d) Any Note that is to be repurchased only in part shall be surrendered to the Trustee duly endorsed for transfer to the Company and accompanied by appropriate evidence of genuineness and authority satisfactory to the Company and the Trustee duly executed by, the holder thereof (or his attorney duly authorized in writing), and the Company shall execute, and the Trustee shall authenticate and deliver to the holder of such Note without service charge, a new Note or Notes, containing identical terms and conditions, of any authorized denomination as requested by such holder in aggregate principal amount equal to and in exchange for the unrepurchased portion of the principal of the Note so surrendered.
(e) On or prior to 10:00 a.m., New York City time on the repurchase date, the Company shall deposit with the Trustee or with a paying agent (or, if the Company is acting as its own paying agent, segregate and hold in trust as provided in Section 5.4) the Repurchase Date Price in cash for payment to the holder on the repurchase date.
(f) If the Company is unable to repurchase on the repurchase date all of the Notes (or portions thereof) as to which the Fundamental Change Repurchase Daterepurchase right has been properly exercised, as the case aggregate amount of Notes the Company may berepurchase shall be allocated pro rata among each Note (or portion thereof) surrendered for repurchase, subject based on the principal amount of such Note, in proportion to extension the aggregate amount of Notes surrendered for repurchase.
(g) All Notes delivered for repurchase shall be delivered to comply with applicable law. Owners of beneficial interests in Global Securities shall provide a Repurchase Notice or Fundamental Change Repurchase Notice the Trustee to be canceled in accordance with the Applicable Procedures provisions of the DepositarySection 2.8.
Appears in 1 contract
Samples: Indenture (Dave & Busters Inc)
Notices; Method of Exercising Repurchase Right, Etc. (a1) Unless the Company shall have theretofore called for redemption all of the outstanding Outstanding Securities, the Company shall give to the Trustee, the Paying Agent and all Holders of Securities, in the manner provided in this Section 3.4, a notice containing the information required pursuant to the following provisions of this Section 3.4(a) (the "Company Notice") (i) on or before the 20th Business Day prior to the Repurchase Date or, in the event of a Fundamental Change arising from a Change of Control, the anticipated Effective Date (but in no event earlier than 45 days prior to the Repurchase Date or anticipated Effective Date, as the case may be), and (ii) within 15 Business Days 30th day after the Company knows or reasonably should know of the occurrence of a Fundamental Change that arises as a result of any Termination of Trading. Prior to or concurrently with the delivery of any Company Noticein Control, the Company will issue a press release or publish such information on the Company's then existing website including the information required to be included in such Company Notice hereunder. The Company shall also deliver a copy of any Company Notice to the Trustee. At or, at the request and expense of the Company on or before the fifth Business Day prior 15th day after such occurrence, the Trustee, shall give to all Holders of Securities, in the manner provided in Section 1.6, notice (the "Offer to Purchase") of the occurrence of the Change of Control and of the repurchase right set forth herein arising as a result thereof. The Company shall also deliver a copy of such Offer to Purchase to the date on which the Company Notice is to be mailed, the Trustee shall provide the Company Notice to the Holders in accordance with the provisions of this IndentureTrustee. Each Company Notice notice of a repurchase right shall state:
(i) the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be,
(ii) the date by which the repurchase right must be exercisedexercised pursuant to Section 14.3(2),
(iii) the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, and whether the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, shall be paid by the Company in cash or by delivery of shares of Common Stock, or a specified combination thereof and the percentage of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, that will be paid in shares of Common Stock (which indication shall be irrevocable, subject to the satisfaction (or waiver) of the conditions set forth in Section 3.3),
(iv) if the notice relates to the occurrence of a Fundamental Change, the events causing the Fundamental Change and the date of the Fundamental Change,
(v) that Securities with respect to which a Holder gives a Repurchase Notice or Fundamental Change Repurchase Notice may be converted only if the Holder withdraws the Repurchase Notice or Fundamental Change Repurchase Notice as to such Securities in accordance with the terms of this Indenture,
(vi) a description of the procedure that which a Holder must follow to exercise a repurchase right, and the place or places where such Securities are to be surrendered for payment of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, and accrued but unpaid interest (and including Liquidated Damages, if any), if any, to, but excluding, any to the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be,
(viiv) that on the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be, the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, and accrued but unpaid interest (and Liquidated including liquidated Damages, if any), if any, to, but excluding, any to the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be, will become due and payable upon each such Security designated by the Holder to be repurchased, and that interest thereon shall cease to accrue on and after said date,
(viiivi) the Conversion Price Rate then in effect,, the date on which the right to convert the principal amount of the Securities to be repurchased will terminate and the place or places where such Securities may be surrendered for conversion, and
(ixvii) the place or places that the Security certificate (including with the Election of Holder to Require Repurchase attached thereto) and the Repurchase Notice (as defined below) specified in Section 2.2 shall be delivered, and, and if the Security is a Restricted Security, Securities Certificate the place or places that the Transfer Surrender Certificate in the form set forth in Exhibit C, required by Section 2.12 14.3(9) shall be delivered,
(x) the name and address of the Paying Agent and Conversion Agent, and
(xi) if the notice relates to a Fundamental Change, the estimated amount of any Make-Whole Premium and the respective percentages of such Make-Whole Premium that will be paid (as contemplated by Section 6.1(b)) in shares of Common Stock and in cash (which indication shall be irrevocable), subject to the satisfaction (or waiver) of the conditions set forth in Section 6.1(c), in the event that a Holder should, in lieu of electing to have Securities repurchased on the Fundamental Change Repurchase Date, elect to convert such Securities during the Fundamental Change Conversion Period, and
(xii) any other information to be included therein pursuant to Section 6.1. No failure of the Company to give the foregoing notices or defect therein shall limit any Holder's ' s right to exercise a repurchase right or affect the validity of the proceedings for the repurchase of Securities. If any of the foregoing provisions or other provisions of this Article III XIV are inconsistent with applicable law, such law shall govern.
(b2) To exercise a repurchase right pursuant to Section 3.1 or Section 3.2right, a Holder shall deliver to the Paying Agent Trustee on or before the date that is five Business Days prior to the Repurchase Date of the Offer to Purchase (i) written notice (in the case of a repurchase pursuant to Section 3.1, a "Repurchase Notice" and, in the case of a repurchase pursuant to Section 3.2, a "Fundamental Change Repurchase Notice") of the Holder's exercise of such right, which notice shall set forth the name of the Holder, the principal amount of the Securities to be repurchased (and, if any Security is to repurchased in part, the serial number thereof, the portion of the principal amount thereof to be repurchased (which portion must be in principal amounts of $1,000 or a whole multiple of $1,000) and the name of the Person in which the portion thereof to remain outstanding Outstanding after such repurchase is to be registered), if certificated, the certificate numbers of the Securities to be repurchased, ) and a statement that an election to exercise the repurchase right pursuant to the terms and conditions specified in the Securities and the Indenture is being made thereby, and, in the event that any portion of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, shall be paid in shares of Common Stock, the name or names (with addresses) in which the certificate or certificates for shares of Common Stock shall be issued, and (ii) the Securities with respect to which the Repurchase Notice or Fundamental Change Repurchase Notice relates at any time after delivery repurchase right is being exercised. Such written notice shall be irrevocable, except that the right of the Repurchase Notice or the Fundamental Change Repurchase Notice, as the case may be (together with all necessary endorsements), at the offices of the Paying Agent, such delivery being a condition Holder to receipt by the Holder of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, thereof; provided, however, that such Repurchase Price or Fundamental Change Repurchase Price, as the case may be, shall be so paid pursuant to this Section 3.4(b) only if convert the Securities so delivered with respect to which the Paying Agent shall conform in all respects to the description thereof in the related Repurchase Notice or Fundamental Change Repurchase Notice. In the case of a repurchase right pursuant to Section 3.1 and Section 3.2, such delivery is being exercised shall be at any time from the opening of business on the date that is 20 Business Days prior to the Repurchase Date continue until the close of business on the second Business Day Repurchase Date.
(3) In the event a repurchase right shall be exercised in accordance with the terms hereof, the Company shall pay or cause to be paid to the Trustee the Repurchase Price in cash or shares of Common Stock, as provided above, for payment to the Holder on the Repurchase Date or, if shares of Common Stock are to be paid, as promptly after the Repurchase Date as practicable, together with accrued and unpaid interest to the Repurchase Date payable with respect to the Securities as to which the repurchase right has been exercised; provided, however, that installments of interest that mature on or prior to the Repurchase Date shall be payable in cash to the Holders of such Securities, or one or more Predecessor Securities, registered as such at the Fundamental Change close of business on the relevant Regular Record Date.
(4) If any Security (or portion thereof) surrendered for repurchase shall not be so paid on the Repurchase Date, the principal amount of such Security (or portion thereof, as the case may be) shall, subject until paid, bear interest to extension the extent permitted by applicable law from the Repurchase Date at the rate of 7.0% per annum, and each Security shall remain convertible into Common Stock until the principal of such Security (or portion thereof, as the case may be) shall have been paid or duly provided for.
(5) Any Security which is to comply with be repurchased only in part shall be surrendered to the Trustee (with, if the Company or the Trustee so requires, due endorsement by, or a written instrument of transfer in form satisfactory to the Company and the Trustee duly executed by, the Holder thereof or his attorney duly authorized in writing), and the Company shall execute, and the Trustee shall authenticate and make available for delivery to the Holder of such Security without service charge, a new Security or Securities, containing identical terms and conditions, each in an authorized denomination in aggregate principal amount equal to and in exchange for the unrepurchased portion of the principal of the Security so surrendered.
(6) Any issuance of shares of Common Stock in respect of the Repurchase Price shall be deemed to have been effected immediately prior to the close of business on the Repurchase Date and the Person or Persons in whose name or names any certificate or certificates for shares of Common Stock shall be issuable upon such repurchase shall be deemed to have become on the Repurchase Date the holder or holders of record of the shares represented thereby; provided, however, that any surrender for repurchase on a date when the stock transfer books of the Company shall be closed shall constitute the Person or Persons in whose name or names the certificate or certificates for such shares are to be issued as the record holder or holders thereof for all purposes at the opening of business on the next succeeding day on which such stock transfer books are open. No payment or adjustment shall be made for dividends or distributions on any Common Stock issued upon repurchase of any Security declared prior to the Repurchase Date.
(7) No fractions of shares shall be issued upon repurchase of Securities. If more than one Security shall be repurchased from the same Holder and the Repurchase Price shall be payable in shares of Common Stock, the number of full shares which shall be issuable upon such repurchase shall be computed on the basis of the aggregate principal amount of the Securities so repurchased. Instead of any fractional share of Common Stock which would otherwise be issuable on the repurchase of any Security or Securities, the Company will deliver to the applicable lawHolder its check for the current market value of such fractional share. Owners The current market value of beneficial interests in Global a fraction of a share is determined by multiplying the current market price of a full share by the fraction, and rounding the result to the nearest cent. For purposes of this Section, the current market price of a share of Common Stock is the Closing Price Per Share of the Common Stock on the Trading Day immediately preceding the Repurchase Date.
(8) Any issuance and delivery of certificates for shares of Common Stock on repurchase of Securities shall provide be made without charge to the Holder of Securities being repurchased for such certificates or for any tax or duty in respect of the issuance or delivery of such certificates or the securities represented thereby; provided, however, that the Company shall not be required to pay any tax or duty which may be payable in respect of (i) income of the Holder or (ii) any transfer involved in the issuance or delivery of certificates for shares of Common Stock in a Repurchase Notice name other than that of the Holder of the Securities being repurchased, and no such issuance or Fundamental Change Repurchase Notice delivery shall be made unless and until the Person requesting such issuance or delivery has paid to the Company the amount of any such tax or duty or has established, to the satisfaction of the Company, that such tax or duty has been paid.
(9) If shares of Common Stock to be delivered upon repurchase of a Security are to be registered in accordance a name other than that of the beneficial owner of such Security, then such Holder must deliver to the Trustee a Surrender Certificate, dated the date of surrender of such Restricted Security and signed by such beneficial owner, as to compliance with the Applicable Procedures restrictions on transfer applicable to such Restricted Security. Neither the Trustee nor any Registrar or Transfer Agent or other agents shall be required to register in a name other than that of the Depositarybeneficial owner shares of Common Stock issued upon repurchase of any such Restricted Security not so accompanied by a properly completed Surrender Certificate.
(10) All Securities delivered for repurchase shall be delivered to the Trustee to be canceled at the direction of the Trustee, which shall dispose of the same as provided in Section 3.9.
Appears in 1 contract
Notices; Method of Exercising Repurchase Right, Etc. (a) Unless the Company shall have theretofore called for redemption all of the outstanding Outstanding Securities, the Company shall give to the Trustee, the Paying Agent and all Holders of Securities, in the manner provided in this Section 3.4, a notice containing the information required pursuant to the following provisions of this Section 3.4(a) (the "Company Notice") (i) on or before the 20th Business Day prior to the Repurchase Date or, in the event of a Fundamental Change arising from a Change of Control, the anticipated Effective Date (but in no event earlier than 45 days prior to the Repurchase Date or anticipated Effective Date, as the case may be), and (ii) within 15 Business Days thirtieth day after the Company knows or reasonably should know of the occurrence of a Fundamental Change that arises as a result of any Termination of Trading. Prior to or concurrently with the delivery of any Company Noticein Control, the Company will issue a press release or publish such information on the Company's then existing website including the information required to be included in such Company Notice hereunder. The Company shall also deliver a copy of any Company Notice to the Trustee. At or, at the request and expense of the Company on or before the fifth Business Day prior thirtieth day after such occurrence, the Trustee, shall give to all Holders of Securities, in the manner provided in Section 1.6, ----------- notice (the "Company Notice") of the occurrence of the Change in Control and of -------------- the repurchase right set forth herein arising as a result thereof. The Company shall also deliver a copy of such notice of a repurchase right to the date on which the Company Notice is to be mailed, the Trustee shall provide the Company Notice to the Holders in accordance with the provisions of this IndentureTrustee. Each Company Notice notice of a repurchase right shall state:
(i1) the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be,
(ii2) the date by which the repurchase right must be exercised,
(iii3) the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, and whether the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, shall be paid by the Company in cash or by delivery of shares of Common Stock, or a specified combination thereof and the percentage of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, that will be paid in shares of Common Stock (which indication shall be irrevocable, subject to the satisfaction (or waiver) of the conditions set forth in Section 3.3),
(iv) if the notice relates to the occurrence of a Fundamental Change, the events causing the Fundamental Change and the date of the Fundamental Change,
(v) that Securities with respect to which a Holder gives a Repurchase Notice or Fundamental Change Repurchase Notice may be converted only if the Holder withdraws the Repurchase Notice or Fundamental Change Repurchase Notice as to such Securities in accordance with the terms of this Indenture,
(vi4) a description of the procedure that a Holder must follow to exercise a repurchase right, and the place or places where such Securities are to be surrendered for payment of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, and accrued but unpaid interest (and Liquidated Damages)interest, if any, to, but excluding, the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be,
(vii5) that on the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be, the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, and accrued but unpaid interest (and Liquidated Damages)interest, if any, to, but excluding, the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be, will become due and payable upon each such Security designated by the Holder to be repurchased, repurchased and that interest thereon shall cease to accrue on and after said date,
(viii6) the Conversion Price Rate then in effect, the date on which the right to convert the principal amount of the Securities to be repurchased will terminate and the place or places where such Securities may be surrendered for conversion,
(ix7) the place or places that the Security certificate (including the Notice of Election of Holder to Require Repurchase attached thereto) and the Repurchase Notice (hereto as defined below) Exhibit B, shall be delivered, and, if the Security is a Restricted Security, the place or places that the Transfer Certificate in --------- and the form set forth in Exhibit C, required by Section 2.12 shall be delivered,
(x) the name and address of the Paying Agent and Conversion Agentsuch notice, and
(xi) if 8) the notice relates to a Fundamental Change, the estimated amount of any Make-Whole Premium and the respective percentages CUSIP number or numbers of such Make-Whole Premium that will be paid (as contemplated by Section 6.1(b)) in shares of Common Stock and in cash (which indication shall be irrevocable), subject to the satisfaction (or waiver) of the conditions set forth in Section 6.1(c), in the event that a Holder should, in lieu of electing to have Securities repurchased on the Fundamental Change Repurchase Date, elect to convert such Securities during the Fundamental Change Conversion Period, and
(xii) any other information to be included therein pursuant to Section 6.1Securities. No failure of the Company to give the foregoing notices or defect therein shall limit any Holder's right to exercise a repurchase right or affect the validity of the proceedings for the repurchase of Securities. If any of the foregoing provisions or other provisions of this Article III are inconsistent with applicable law, such law shall govern.
(b) To exercise a repurchase right pursuant to Section 3.1 or Section 3.2right, a Holder shall deliver to the Paying Agent Trustee on or before the thirtieth day (ior such greater period as may be required by applicable law) after the date of the Company Notice (1) written notice (in the case of a repurchase pursuant to Section 3.1, a "Repurchase Notice" and, in the case of a repurchase pursuant to Section 3.2, a "Fundamental Change Repurchase Notice") of the Holder's exercise of such right, which notice shall set forth the name of the Holder, the principal amount of the Securities to be repurchased (and, if any Security is to repurchased in part, the serial number thereof, the portion of the principal amount thereof to be repurchased (which portion must be in principal amounts of $1,000 or a whole multiple of $1,000) and the name of the Person in which the portion thereof to remain outstanding Outstanding after such repurchase is to be registered), if certificated, the certificate numbers of the Securities to be repurchased, ) and a statement that an election to exercise the repurchase right pursuant to the terms and conditions specified in the Securities and the Indenture is being made thereby, and, in the event that any portion of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, shall be paid in shares of Common Stock, the name or names (with addresses) in which the certificate or certificates for shares of Common Stock shall be issued, and (ii2) the Securities with respect to which the Repurchase Notice or Fundamental Change Repurchase Notice relates at any time after delivery repurchase right is being exercised. Such written notice shall be irrevocable, except that the right of the Repurchase Notice or the Fundamental Change Repurchase Notice, as the case may be (together with all necessary endorsements), at the offices of the Paying Agent, such delivery being a condition Holder to receipt by the Holder of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, thereof; provided, however, that such Repurchase Price or Fundamental Change Repurchase Price, as the case may be, shall be so paid pursuant to this Section 3.4(b) only if convert the Securities so delivered with respect to which the Paying Agent shall conform in all respects to the description thereof in the related Repurchase Notice or Fundamental Change Repurchase Notice. In the case of a repurchase right pursuant to Section 3.1 and Section 3.2, such delivery is being exercised shall be at any time from the opening of business on the date that is 20 Business Days prior to the Repurchase Date continue until the close of business on the second Business Day immediately preceding the Repurchase Date.
(c) In the event a repurchase right shall be exercised in accordance with the terms hereof, the Company shall pay or cause to be paid to the Trustee the Repurchase Price in cash or shares of Common Stock, as provided above, for payment to the Holder on the Repurchase Date or, if shares of Common Stock are to be paid, as promptly after the Repurchase Date as practicable, together with accrued and unpaid interest to the Repurchase Date payable with respect to the Securities as to which the purchase right has been exercised; provided, however, that installments of interest that mature on or prior to the Repurchase Date shall be payable in cash to the Holders of such Securities, or one or more Predecessor Securities, registered as such at the Fundamental Change close of business on the relevant Regular Record Date.
(d) If any Security (or portion thereof) surrendered for repurchase shall not be so paid on the Repurchase Date, the principal amount of such Security (or portion thereof, as the case may be) shall, subject until paid, bear interest to extension the extent permitted by applicable law from the Repurchase Date at the rate then in effect per annum, and each Security shall remain convertible into Common Stock until the principal of such Security (or portion thereof, as the case may be) shall have been paid or duly provided for.
(e) Any Security that is to comply with be repurchased only in part shall be surrendered to the Trustee (with, if the Company or the Trustee so requires, due endorsement by, or a written instrument of transfer in form satisfactory to the Company and the Trustee duly executed by, the Holder thereof or his attorney duly authorized in writing), and the Company shall execute, and the Trustee shall authenticate and make available for delivery to the Holder of such Security without service charge, a new Security or Securities, containing identical terms and conditions, each in an authorized denomination in aggregate principal amount equal to and in exchange for the unrepurchased portion of the principal of the Security so surrendered.
(f) Any issuance of shares of Common Stock in respect of the Repurchase Price shall be deemed to have been effected immediately prior to the close of business on the Repurchase Date and the Person or Persons in whose name or names any certificate or certificates for shares of Common Stock shall be issuable upon such repurchase shall be deemed to have become on the Repurchase Date the holder or holders of record of the shares represented thereby; provided, however, that any surrender for repurchase on a date when the stock transfer books of the Company shall be closed shall constitute the Person or Persons in whose name or names the certificate or certificates for such shares are to be issued as the record holder or holders thereof for all purposes at the opening of business on the next succeeding day on which such stock transfer books are open. No payment or adjustment shall be made for dividends or distributions on any Common Stock issued upon repurchase of any Security declared prior to the Repurchase Date.
(g) No fractions of shares shall be issued upon repurchase of Securities. If more than one Security shall be repurchased from the same Holder and the Repurchase Price shall be payable in shares of Common Stock, the number of full shares that shall be issuable upon such repurchase shall be computed on the basis of the aggregate principal amount of the Securities so repurchased. Instead of any fractional share of Common Stock that would otherwise be issuable on the repurchase of any Security or Securities, the Company will deliver to the applicable lawHolder its check for the current market value of such fractional share. Owners The current market value of beneficial interests in Global a fraction of a share is determined by multiplying the current market price of a full share by the fraction and rounding the result to the nearest cent. For purposes of this Section 12.3, the current market price of a share of Common ------------ Stock is the average of the high and low sales price per Share of the Common Stock on the Trading Day immediately preceding the Repurchase Date.
(h) Any issuance and delivery of certificates for shares of Common Stock on repurchase of Securities shall provide a Repurchase Notice be made without charge to the Holder of Securities being repurchased for such certificates or Fundamental Change Repurchase Notice for any tax or duty in accordance with the Applicable Procedures respect of the Depositaryissuance or delivery of such certificates or the securities represented thereby; provided, however, that the Company shall not be required to pay any tax or duty that may be payable in respect of (1) income of the Holder or (2) any transfer involved in the issuance or delivery of certificates for shares of Common Stock in a name other than that of the Holder of the Securities being repurchased, and no such issuance or delivery shall be made unless and until the Person requesting such issuance or delivery has paid to the Company the amount of any such tax or duty or has established, to the satisfaction of the Company, that such tax or duty has been paid.
(i) All Securities delivered for repurchase shall be delivered to the Trustee to be canceled at the direction of the Trustee, which shall dispose of the same as provided in Section 2.10. ------------ ARTICLE THIRTEEN HOLDERS LISTS AND REPORTS BY TRUSTEE AND COMPANY; NON-RECOURSE
SECTION 13.1 Company to Furnish Trustee Names and Addresses of Holders. --------------------------------------------------------- The Company will furnish or cause to be furnished to the Trustee:
(a) semi-annually, not more than 15 days after the Regular Record Date, a list, in such form as the Trustee may reasonably require, of the names and addresses of the Holders of Securities as of such Regular Record Date, and
(b) at such other times as the Trustee may reasonably request in writing, within 30 days after the receipt by the Company of any such request, a list of similar form and content as of a date not more than 15 days prior to the time such list is furnished; provided, however, that no such list need be furnished so long as the Trustee is acting as Security Registrar.
Appears in 1 contract
Samples: Indenture (Cell Therapeutics Inc)
Notices; Method of Exercising Repurchase Right, Etc. (a) Unless the Company shall have theretofore called for redemption all of the outstanding Outstanding Securities, on or before the 30th day after the occurrence of a Change of Control, the Company or, at the request and expense of the Company, the Trustee, shall give to the Trustee, the Paying Agent and all Holders of Securities, in the manner provided in this Section 3.41.6, a notice containing the information required pursuant to the following provisions of this Section 3.4(a) (the "Company Notice") (i) on or before the 20th Business Day prior to the Repurchase Date or, in the event of a Fundamental Change arising from a Change of Control, the anticipated Effective Date (but in no event earlier than 45 days prior to the Repurchase Date or anticipated Effective Date, as the case may be), and (ii) within 15 Business Days after the Company knows or reasonably should know of the occurrence of a Fundamental the Change that arises of Control and of the repurchase right set forth herein arising as a result of any Termination of Trading. Prior to or concurrently with the delivery of any Company Notice, the Company will issue a press release or publish such information on the Company's then existing website including the information required to be included in such Company Notice hereunderthereof. The Company shall also deliver a copy of any Company Notice such notice of a repurchase right to the Trustee. At the request and expense Each notice of the Company on or before the fifth Business Day prior to the date on which the Company Notice is to be mailed, the Trustee shall provide the Company Notice to the Holders in accordance with the provisions of this Indenture. Each Company Notice a repurchase right shall state:
(i1) the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be,
(ii2) the date by which the repurchase right must be exercised,
(iii3) the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, and whether the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, shall be paid by the Company in cash or by delivery of shares of Common Stock, or a specified combination thereof and the percentage of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, that will be paid in shares of Common Stock (which indication shall be irrevocable, subject to the satisfaction (or waiver) of the conditions set forth in Section 3.3),
(iv4) if the notice relates to the occurrence of a Fundamental Change, the events causing the Fundamental Change and the date of the Fundamental Change,
(v) that Securities with respect to which a Holder gives a Repurchase Notice or Fundamental Change Repurchase Notice may be converted only if the Holder withdraws the Repurchase Notice or Fundamental Change Repurchase Notice as to such Securities in accordance with the terms of this Indenture,
(vi) a description of the procedure that instructions a Holder must follow to exercise a repurchase right, and the place or places where such Securities are to be surrendered for payment of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, and accrued but unpaid interest (and Liquidated Damages), if any, to, but excluding, the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be,
(vii5) that on the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be, the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, and accrued but unpaid interest (and Liquidated Damages)interest, if any, to, but excluding, the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be, will become due and payable upon each such Security designated by the Holder to be repurchased, and that interest thereon shall cease to accrue on and after said date,, and
(viii6) the Conversion Price Rate then in effect,
(ix) , the date on which the right to convert the principal amount of the Securities to be repurchased will terminate and the place or places that the Security certificate (including the Election of Holder to Require Repurchase attached thereto) and the Repurchase Notice (as defined below) shall be delivered, and, if the Security is a Restricted Security, the place or places that the Transfer Certificate in the form set forth in Exhibit C, required by Section 2.12 shall be delivered,
(x) the name and address of the Paying Agent and Conversion Agent, and
(xi) if the notice relates to a Fundamental Change, the estimated amount of any Make-Whole Premium and the respective percentages of such Make-Whole Premium that will be paid (as contemplated by Section 6.1(b)) in shares of Common Stock and in cash (which indication shall be irrevocable), subject to the satisfaction (or waiver) of the conditions set forth in Section 6.1(c), in the event that a Holder should, in lieu of electing to have Securities repurchased on the Fundamental Change Repurchase Date, elect to convert where such Securities during the Fundamental Change Conversion Period, and
(xii) any other information to may be included therein pursuant to Section 6.1surrendered for conversion. No failure of the Company to give the foregoing notices or defect therein shall limit any Holder's right to exercise a repurchase right or affect the validity of the proceedings for the repurchase of Securities. If any of the foregoing provisions or other provisions of this Article III Fourteen are inconsistent with applicable law, such law shall govern.
(b) To exercise a repurchase right pursuant to Section 3.1 or Section 3.2right, a Holder shall deliver to the Trustee or any Paying Agent on or before the 5th day prior to the Repurchase Date (i) written notice (in the case of a repurchase pursuant to Section 3.1, a "Repurchase Notice" and, in the case of a repurchase pursuant to Section 3.2, a "Fundamental Change Repurchase Notice") of the Holder's exercise of such right, which notice shall set forth the name of the Holder, the principal amount of the Securities to be repurchased (and, if any Security is to be repurchased in part, the serial number thereof, the portion of the principal amount thereof to be repurchased (which portion must be in principal amounts of $1,000 or a whole multiple of $1,000) and the name of the Person in which the portion thereof to remain outstanding Outstanding after such repurchase is to be registered), if certificated, the certificate numbers of the Securities to be repurchased, ) and a statement that an election to exercise the repurchase right pursuant to the terms and conditions specified in the Securities and the Indenture is being made thereby, and, in the event that any portion of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, shall be paid in shares of Common Stock, the name or names (with addresses) in which the certificate or certificates for shares of Common Stock shall be issued, and (ii) the Securities with respect to which the Repurchase Notice or Fundamental Change Repurchase Notice relates at any time after delivery repurchase right is being exercised. Such written notice shall be irrevocable, except that the right of the Repurchase Notice or the Fundamental Change Repurchase Notice, as the case may be (together with all necessary endorsements), at the offices of the Paying Agent, such delivery being a condition Holder to receipt by the Holder of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, thereof; provided, however, that such Repurchase Price or Fundamental Change Repurchase Price, as the case may be, shall be so paid pursuant to this Section 3.4(b) only if convert the Securities so delivered with respect to which the Paying Agent shall conform in all respects to the description thereof in the related Repurchase Notice or Fundamental Change Repurchase Notice. In the case of a repurchase right pursuant to Section 3.1 and Section 3.2, such delivery is being exercised shall be at any time from the opening of business on the date that is 20 Business Days prior to the Repurchase Date continue until the close of business on the second Business Day Repurchase Date.
(c) In the event a repurchase right shall be exercised in accordance with the terms hereof, the Company shall pay or cause to be paid to the Trustee the Repurchase Price in cash or shares of Common Stock, as provided above, for payment to the Holder on the Repurchase Date or, if shares of Common Stock are to be paid, as promptly after the Repurchase Date as practicable, together with accrued and unpaid interest to the Repurchase Date payable with respect to the Securities as to which the purchase right has been exercised; provided, however, that installments of interest that mature on or prior to the Repurchase Date shall be payable in cash, to the Holders of the Securities, or one or more Predecessor Securities, registered as such at the Fundamental Change close of business on the relevant Regular Record Date.
(d) If any Security (or portion thereof) surrendered for repurchase shall not be so paid on the Repurchase Date, the principal amount of such Security (or portion thereof, as the case may be) shall, subject until paid, bear interest to extension the extent permitted by applicable law from the Repurchase Date at the rate per annum borne by such Security, and each Security shall remain convertible into Common Stock until the principal of such Security (or portion thereof, as the case may be) shall have been paid or duly provided for.
(e) Any Security which is to comply with be repurchased only in part shall be surrendered to the Trustee at the office or agency of the Company designated for that purpose pursuant to Section 10.2 (with, if the Company or the Trustee so requires, due endorsement by, or a written instrument of transfer in form satisfactory to the Company and the Trustee duly executed by, the Holder thereof or his attorney duly authorized in writing), and the Company shall execute, and the Trustee shall authenticate and make available for delivery to the Holder of such Security without service charge, a new Security or Securities, containing identical terms and conditions, each in an authorized denomination in aggregate principal amount equal to and in exchange for the unrepurchased portion of the principal of the Security so surrendered.
(f) Any issuance of shares of Common Stock in respect of the Repurchase Price shall be deemed to have been effected immediately prior to the close of business on the Repurchase Date and the Person or Persons in whose name or names any certificate or certificates for shares of Common Stock shall be issuable upon such repurchase shall be deemed to have become on the Repurchase Date the holder or holders of record of the shares represented thereby; provided, however, that any surrender for repurchase on a date when the stock transfer books of the Company shall be closed shall constitute the Person or Persons in whose name or names the certificate or certificates for such shares are to be issued as the record holder or holders thereof for all purposes at the opening of business on the next succeeding day on which such stock transfer books are open. No payment or adjustment shall be made for dividends or distributions on any Common Stock issued upon repurchase of any Security declared prior to the Repurchase Date.
(g) No fractions of shares shall be issued upon repurchase of Securities. If more than one Security shall be repurchased from the same Holder and the Repurchase Price shall be payable in shares of Common Stock, the number of full shares which shall be issuable upon such repurchase shall be computed on the basis of the aggregate principal amount of the Securities so repurchased. Instead of any fractional share of Common Stock which would otherwise be issuable on the repurchase of any Security or Securities, the Company will deliver to the applicable lawHolder its check for the current market value of such fractional share. Owners The current market value of beneficial interests in Global a fraction of a share shall be determined by multiplying the current market price of a full share by the fraction, and rounding the result to the nearest cent. For purposes of this Section, the current market price of a share of Common Stock shall be the Closing Price of the Common Stock on the Trading Day immediately preceding the Repurchase Date.
(h) Any issuance and delivery of certificates for shares of Common Stock on repurchase of Securities shall provide a Repurchase Notice be made without charge to the Holder of Securities being repur chased for such certificates or Fundamental Change Repurchase Notice for any tax or duty in accordance with the Applicable Procedures respect of the Depositaryissuance or delivery of such certificates or the securities represented thereby; provided, however, that the Company shall not be required to pay any tax or duty which may be payable in respect of any transfer involved in the issuance or delivery of certificates for shares of Common Stock in a name other than that of the Holder of the Securities being repurchased, and no such issuance or delivery shall be made unless and until the Person requesting such issuance or delivery has paid to the Company the amount of any such tax or duty or has established, to the satisfaction of the Company, that such tax or duty has been paid.
(i) All Securities delivered for repurchase shall be delivered to the Trustee, the Paying Agent or any other agents (as shall be set forth in the Company Notice) to be canceled at the direction of the Trustee, which shall dispose of the same as provided in Section 3.10.
Appears in 1 contract
Samples: Indenture (Tech Data Corp)
Notices; Method of Exercising Repurchase Right, Etc. (a) Unless the Company shall have theretofore called for redemption all of the outstanding SecuritiesOutstanding Notes, within 30 days after the Company becomes aware of the occurrence of a Change in Control, the Company, or, at the written request and expense of the Company within 30 days after the Company becomes aware of such occurrence, the Trustee, shall give to the Trustee, the Paying Agent and all Holders of SecuritiesNotes notice, in the manner provided in this Section 3.413.2 hereof, a notice containing the information required pursuant to the following provisions of this Section 3.4(a) (the "Company Notice") (i) on or before the 20th Business Day prior to the Repurchase Date or, in the event of a Fundamental Change arising from a Change of Control, the anticipated Effective Date (but in no event earlier than 45 days prior to the Repurchase Date or anticipated Effective Date, as the case may be), and (ii) within 15 Business Days after the Company knows or reasonably should know of the occurrence of a Fundamental the Change that arises of Control and of the Repurchase Right set forth herein arising as a result of any Termination of Trading. Prior to or concurrently with thereof (the delivery of any “Company Notice, the Company will issue a press release or publish such information on the Company's then existing website including the information required to be included in such Company Notice hereunder”). The Company shall also deliver a copy of any Company Notice such notice of a Repurchase Right to the Trustee. At the request and expense Each notice of the Company on or before the fifth Business Day prior to the date on which the Company Notice is to be mailed, the Trustee shall provide the Company Notice to the Holders in accordance with the provisions of this Indenture. Each Company Notice a Repurchase Right shall state:
(i1) the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be,;
(ii2) the date by which the repurchase right Repurchase Right must be exercised,;
(iii3) the Repurchase Price or the Fundamental Change Repurchase Priceand accrued and unpaid interest, as the case may be, and whether the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, shall be paid by the Company in cash or by delivery of shares of Common Stock, or a specified combination thereof and the percentage of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, that will be paid in shares of Common Stock (which indication shall be irrevocable, subject to the satisfaction (or waiver) of the conditions set forth in Section 3.3),if any;
(iv) if the notice relates to the occurrence of a Fundamental Change, the events causing the Fundamental Change and the date of the Fundamental Change,
(v) that Securities with respect to which a Holder gives a Repurchase Notice or Fundamental Change Repurchase Notice may be converted only if the Holder withdraws the Repurchase Notice or Fundamental Change Repurchase Notice as to such Securities in accordance with the terms of this Indenture,
(vi4) a description of the procedure that which a Holder must follow to exercise a repurchase rightRepurchase Right, and the place or places where such Securities Notes are to be surrendered for payment of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, accrued and accrued but unpaid interest (and Liquidated Damages)Additional Interest, if any, to, but excluding, the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be,;
(vii5) that on the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be, the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, accrued and accrued but unpaid interest (and Liquidated Damages)Additional Interest, if any, to, but excluding, the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be, will become due and payable upon each such Security Note designated by the Holder to be repurchased, and that interest thereon shall cease to accrue on and after said date,;
(viii6) the Conversion Price then in effect,, the date on which the right to convert the principal of the Notes will terminate and that accrued and unpaid interest on the Notes is forfeited upon conversion;
(ix7) the amount of the Notes to be repurchased will terminate and the place where such Notes may be surrendered for conversion, and
(8) the place or places that where such Notes, together with the Security Option to Elect Repayment Upon a Change of Control certificate (including the Election included in Exhibit A annexed hereto are to be delivered for payment of Holder to Require Repurchase attached thereto) and the Repurchase Notice (as defined below) shall be delivered, andPrice and accrued and unpaid interest, if the Security is a Restricted Security, the place or places that the Transfer Certificate in the form set forth in Exhibit C, required by Section 2.12 shall be delivered,
(x) the name and address of the Paying Agent and Conversion Agent, and
(xi) if the notice relates to a Fundamental Change, the estimated amount of any Make-Whole Premium and the respective percentages of such Make-Whole Premium that will be paid (as contemplated by Section 6.1(b)) in shares of Common Stock and in cash (which indication shall be irrevocable), subject to the satisfaction (or waiver) of the conditions set forth in Section 6.1(c), in the event that a Holder should, in lieu of electing to have Securities repurchased on the Fundamental Change Repurchase Date, elect to convert such Securities during the Fundamental Change Conversion Period, and
(xii) any other information to be included therein pursuant to Section 6.1any. No failure of the Company to give the foregoing notices or defect therein shall limit any Holder's ’s right to exercise a repurchase right Repurchase Right or affect the validity of the proceedings for the repurchase of SecuritiesNotes. If any of the foregoing provisions or other provisions of this Article III 11 are inconsistent with applicable law, such law shall govern.
(b) To exercise a repurchase right pursuant to Section 3.1 or Section 3.2Repurchase Right, a Holder shall deliver to the Paying Agent Trustee prior to or on the first day prior to the Repurchase Date:
(i1) written notice (in the case of a repurchase pursuant to Section 3.1, a "Repurchase Notice" and, in the case of a repurchase pursuant to Section 3.2, a "Fundamental Change Repurchase Notice") of the Holder's ’s exercise of such right, which notice shall set forth the name of the Holder, the principal amount of the Securities Notes to be repurchased (and, if any Security Note is to be repurchased in part, the serial number thereof, the portion of the principal amount thereof to be repurchased (which portion must be in principal amounts of $1,000 or a whole multiple of $1,000repurchased) and the name of the Person in which the portion thereof to remain outstanding after such repurchase is to be registered), if certificated, the certificate numbers of the Securities to be repurchased, and a statement that an election to exercise the repurchase right pursuant to the terms and conditions specified in the Securities and the Indenture Repurchase Right is being made thereby, and, in the event that any portion of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, shall be paid in shares of Common Stock, the name or names
(with addresses) in which the certificate or certificates for shares of Common Stock shall be issued, and (ii2) the Securities Notes with respect to which the Repurchase Notice or Fundamental Change Repurchase Notice relates at any time after delivery Right is being exercised. Such written notice shall be irrevocable, except that the right of the Repurchase Notice or Holder to convert the Fundamental Change Repurchase Notice, as the case may be (together Notes with all necessary endorsements), at the offices of the Paying Agent, such delivery being a condition respect to receipt by the Holder of which the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, thereof; provided, however, that such Repurchase Price or Fundamental Change Repurchase Price, as the case may be, Right is being exercised shall be so paid pursuant to this Section 3.4(b) only if the Securities so delivered to the Paying Agent shall conform in all respects to the description thereof in the related Repurchase Notice or Fundamental Change Repurchase Notice. In the case of a repurchase right pursuant to Section 3.1 and Section 3.2, such delivery shall be at any time from the opening of business on the date that is 20 Business Days prior to the Repurchase Date continue until the close of business on the second Business Day prior immediately preceding the Repurchase Date. The Company shall not pay accrued and unpaid interest on any Notes so converted except as provided in Section 12.2.
(c) In the event a Repurchase Right shall be exercised in accordance with the terms hereof, the Company shall pay or cause to be paid to the Trustee the Repurchase Price in cash as provided above, for payment to the Holder on the Repurchase Date, together with Additional Interest, if any, and accrued and unpaid interest to the Repurchase Date payable in cash with respect to the Notes as to which the Repurchase Right has been exercised; provided, however, that installments of interest that mature prior to or on the Fundamental Change Repurchase Date shall be payable to the Holders of such Notes, or one or more Predecessor Notes, registered as such at the close of business on the relevant Regular Record Date according to their terms and the provisions of Section 2.1 hereof.
(d) If any Note (or portion thereof) surrendered for repurchase shall not be paid on the Repurchase Date, the principal amount of such Note (or portion thereof, as the case may be) shall, subject until paid, bear interest to extension the extent permitted by applicable law from the Repurchase Date at the interest rate, and each Note shall remain convertible into Common Stock until the principal of such Note (or portion thereof, as the case may be) shall have been paid or duly provided for.
(e) Any Note which is to comply with applicable law. Owners be repurchased only in part shall be surrendered to the Trustee (with, if the Company or the Trustee so requires, due endorsement by, or a written instrument of beneficial interests transfer in Global Securities form satisfactory to the Company and the Trustee duly executed by the Holder thereof or his attorney duly authorized in writing), and the Company shall provide execute, and the Trustee shall authenticate and make available for delivery to the Holder of such Note without service charge, a Repurchase Notice new Note or Fundamental Change Repurchase Notice Notes, containing identical terms and conditions, each in accordance with an authorized denomination in aggregate principal amount equal to and in exchange for the Applicable Procedures unrepurchased portion of the Depositaryprincipal of the Note so surrendered.
(f) All Notes delivered for repurchase shall be delivered to the Trustee to be canceled at the direction of the Trustee, which shall dispose of the same as provided in Section 2.15 hereof.
Appears in 1 contract
Samples: Indenture (Ciphergen Biosystems Inc)
Notices; Method of Exercising Repurchase Right, Etc. (a) Unless the Company shall have theretofore called for redemption all of the outstanding Outstanding Securities, on or before the 30th day after the occurrence of a Fundamental Change, the Company or, at the request and expense of the Company, the Trustee, shall give to the Trustee, the Paying Agent and all Holders of Securities, in the manner provided in this Section 3.41.6, a notice containing the information required pursuant to the following provisions of this Section 3.4(a) (the "Company Notice") (i) on or before the 20th Business Day prior to the Repurchase Date or, in the event of a Fundamental Change arising from a Change of Control, the anticipated Effective Date (but in no event earlier than 45 days prior to the Repurchase Date or anticipated Effective Date, as the case may be), and (ii) within 15 Business Days after the Company knows or reasonably should know of the occurrence 110 of a the Fundamental Change that arises and of the repurchase right set forth herein arising as a result of any Termination of Trading. Prior to or concurrently with the delivery of any Company Notice, the Company will issue a press release or publish such information on the Company's then existing website including the information required to be included in such Company Notice hereunderthereof. The Company shall also deliver a copy of any Company Notice such notice of a repurchase right to the Trustee. At the request and expense Each notice of the Company on or before the fifth Business Day prior to the date on which the Company Notice is to be mailed, the Trustee shall provide the Company Notice to the Holders in accordance with the provisions of this Indenture. Each Company Notice a repurchase right shall state:
(i1) the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be,
(ii2) the date by which the repurchase right must be exercised,
(iii3) the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, and whether the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, shall be paid by the Company in cash or by delivery of shares of Common Stock, or a specified combination thereof and the percentage of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, that will be paid in shares of Common Stock (which indication shall be irrevocable, subject to the satisfaction (or waiver) of the conditions set forth in Section 3.3),
(iv) if the notice relates to the occurrence of a Fundamental Change, the events causing the Fundamental Change and the date of the Fundamental Change,
(v) that Securities with respect to which a Holder gives a Repurchase Notice or Fundamental Change Repurchase Notice may be converted only if the Holder withdraws the Repurchase Notice or Fundamental Change Repurchase Notice as to such Securities in accordance with the terms of this Indenture,
(vi4) a description of the procedure that which a Holder must follow to exercise a repurchase right, and the place or places where such Securities maturing after the Repurchase Date, are to be surrendered for payment of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, and accrued but unpaid interest (and Liquidated Damages)interest, if any, to, but excluding, the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be,
(vii5) that on the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be, the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, and accrued but unpaid interest (and Liquidated Damages)interest, if any, to, but excluding, the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be, will become due and payable upon each such Security designated by the Holder to be repurchased, and that interest thereon shall cease to accrue on and after said date,, and
(viii6) the Conversion Price then in effect,
(ix) , the date on which the right to convert the principal amount of the Securities to be repurchased will terminate and the place or places that the Security certificate (including the Election of Holder to Require Repurchase attached thereto) and the Repurchase Notice (as defined below) shall be delivered, and, if the Security is a Restricted Security, the place or places that the Transfer Certificate in the form set forth in Exhibit C, required by Section 2.12 shall be delivered,
(x) the name and address of the Paying Agent and Conversion Agent, and
(xi) if the notice relates to a Fundamental Change, the estimated amount of any Make-Whole Premium and the respective percentages of such Make-Whole Premium that will be paid (as contemplated by Section 6.1(b)) in shares of Common Stock and in cash (which indication shall be irrevocable), subject to the satisfaction (or waiver) of the conditions set forth in Section 6.1(c), in the event that a Holder should, in lieu of electing to have Securities repurchased on the Fundamental Change Repurchase Date, elect to convert where such Securities during the Fundamental Change Conversion Period, and
(xii) any other information to may be included therein pursuant to Section 6.1surrendered for conversion. No failure of the Company to give the foregoing notices or defect therein shall limit any Holder's right to exercise a repurchase right or affect the validity of the proceedings for the repurchase of Securities. If any of the foregoing provisions or other provisions of this Article III are inconsistent with applicable law, such law shall govern.
(b) To exercise a repurchase right pursuant to Section 3.1 or Section 3.2right, a Holder shall deliver to the Trustee or any Paying Agent on or before the 30th day after the date of the Company Notice (i) written notice (in the case of a repurchase pursuant to Section 3.1, a "Repurchase Notice" and, in the case of a repurchase pursuant to Section 3.2, a "Fundamental Change Repurchase Notice") of the Holder's exercise of such right, which notice shall set forth the name of the Holder, the principal amount of the Securities to be repurchased (and, if any Security is to be repurchased in part, the serial number thereof, the portion of the principal amount thereof to be repurchased (which portion must be in principal amounts of $1,000 or a whole multiple of $1,000) and the name of the Person in which the portion thereof to remain outstanding Outstanding after such repurchase is to be registered), if certificated, the certificate numbers of the Securities to be repurchased, ) and a statement that an election to exercise the repurchase right pursuant to the terms and conditions specified in the Securities and the Indenture is being made thereby, and, in the event that any portion of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, shall be paid in shares of Common Stock, the name or names (with addresses) in which the certificate or certificates for shares of Common Stock shall be issued, and (ii) the Securities with respect to which the Repurchase Notice or Fundamental Change Repurchase Notice relates at any time after delivery repurchase right is being exercised. Such written notice shall be irrevocable, except that the right of the Repurchase Notice or the Fundamental Change Repurchase Notice, as the case may be (together with all necessary endorsements), at the offices of the Paying Agent, such delivery being a condition Holder to receipt by the Holder of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, thereof; provided, however, that such Repurchase Price or Fundamental Change Repurchase Price, as the case may be, shall be so paid pursuant to this Section 3.4(b) only if convert the Securities so delivered with respect to which the Paying Agent shall conform in all respects to the description thereof in the related Repurchase Notice or Fundamental Change Repurchase Notice. In the case of a repurchase right pursuant to Section 3.1 and Section 3.2, such delivery is being exercised shall be at any time from the opening of business on the date that is 20 Business Days prior to the Repurchase Date continue until the close of business on the second Business Day prior to the Repurchase Date Date.
(c) In the event a repurchase right shall be exercised in accordance with the terms hereof, the Company shall pay or cause to be paid to the Trustee or the Fundamental Change Paying Agent the Repurchase Price in cash, as provided above, for payment to the Holder on the Repurchase Date together with accrued and unpaid interest to the Repurchase Date payable with respect to the Securities as to which their purchase right has been exercised; provided, however, that installments of interest that mature on or prior to the Repurchase Date shall be payable in cash, in the case of Securities, to the Holders of such Securities, or one or more Predecessor Securities, registered as such at the close of business on the relevant Regular Record Date.
(d) If any Security (or portion thereof) surrendered for repurchase shall not be so paid on the Repurchase Date, the principal amount of such Security (or portion thereof, as the case may be) shall, subject until paid, bear interest to extension the extent permitted by applicable law from the Repurchase Date at the rate of 5 1/4% per annum, and each Security shall remain convertible into Common Stock until the principal of such Security (or portion thereof, as the case may be) shall have been paid or duly provided for.
(e) Any Security which is to comply with applicable law. Owners be repurchased only in part shall be surrendered to the Trustee (with, if the Company or the Trustee so requires, due endorsement by, or a written instrument of beneficial interests transfer in Global Securities form satisfactory to the Company and the Trustee duly executed by, the Holder thereof or his attorney duly authorized in writing), and the Company shall provide execute, and the Trustee shall authenticate and make available for delivery to the Holder of such Security without service charge, a Repurchase Notice new Security or Fundamental Change Repurchase Notice Securities, containing identical terms and conditions, each in accordance with an authorized denomination in aggregate principal amount equal to and in exchange for the Applicable Procedures unrepurchased portion of the Depositaryprincipal of the Security so surrendered.
(f) All securities delivered for repurchase shall be delivered to the Trustee, the Paying Agent or any other agents (as shall be set forth in the Company Notice) to be canceled by or at the direction of the Trustee, which shall dispose of the same as provided in Section 3.9.
Appears in 1 contract
Samples: Indenture (Veritas Software Corp)
Notices; Method of Exercising Repurchase Right, Etc. (a) Unless the Company shall have theretofore called for redemption all of the outstanding Outstanding Securities, the Company shall give to the Trustee, the Paying Agent and all Holders of Securities, in the manner provided in this Section 3.4, a notice containing the information required pursuant to the following provisions of this Section 3.4(a) (the "Company Notice") (i) on or before the 20th Business Day prior to the Repurchase Date or, in the event of a Fundamental Change arising from a Change of Control, the anticipated Effective Date (but in no event earlier than 45 days prior to the Repurchase Date or anticipated Effective Date, as the case may be), and (ii) within 15 Business Days 30th day after the Company knows or reasonably should know of the occurrence of a Fundamental Change that arises as a result of any Termination of Trading. Prior to or concurrently with the delivery of any Company Noticein Control, the Company will issue a press release or publish such information on the Company's then existing website including the information required to be included in such Company Notice hereunder. The Company shall also deliver a copy of any Company Notice to the Trustee. At or, at the request and expense of the Company on or before the fifth Business Day prior 15th day after such occurrence, the Trustee, shall give to all Holders of Securities, in the manner provided in Section 1.6, notice (the "Company Notice") of the occurrence of the Change of Control and of the repurchase right set forth herein arising as a result thereof. The Company shall also deliver a copy of such notice of a repurchase right to the date on which the Company Notice is to be mailed, the Trustee shall provide the Company Notice to the Holders in accordance with the provisions of this IndentureTrustee. Each Company Notice notice of a repurchase right shall state:
(i1) the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be,
(ii2) the date by which the repurchase right must be exercised,
(iii3) the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, and whether the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, shall be paid by the Company in cash or by delivery of shares of Common Stock, or a specified combination thereof and the percentage of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, that will be paid in shares of Common Stock (which indication shall be irrevocable, subject to the satisfaction (or waiver) of the conditions set forth in Section 3.3),
(iv) if the notice relates to the occurrence of a Fundamental Change, the events causing the Fundamental Change and the date of the Fundamental Change,
(v) that Securities with respect to which a Holder gives a Repurchase Notice or Fundamental Change Repurchase Notice may be converted only if the Holder withdraws the Repurchase Notice or Fundamental Change Repurchase Notice as to such Securities in accordance with the terms of this Indenture,
(vi4) a description of the procedure that which a Holder must follow to exercise a repurchase right, and the place or places where such Securities Securities, are to be surrendered for payment of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, and accrued but unpaid interest (and Liquidated Damages)interest, if any, to, but excluding, the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be,
(vii5) that on the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be, the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, and accrued but unpaid interest (and Liquidated Damages)interest, if any, to, but excluding, the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be, will become due and payable upon each such Security designated by the Holder to be repurchased, and that interest thereon shall cease to accrue on and after said date,
(viii6) the Conversion Price Rate then in effect, the date on which the right to convert the principal amount of the Securities to be repurchased will terminate and the place or places where such Securities may be surrendered for conversion,
(ix7) the place or places that the Security certificate (including the Election of Holder to Require Repurchase attached thereto) required by Section 2.2 shall be delivered, and the Repurchase Notice (as defined belowform of such certificate and the place or places that the Surrender Certificate required by Section 14.3(i) shall be delivered, and, if the Security is a Restricted Security, the place or places that the Transfer Certificate in the form set forth in Exhibit C, required by Section 2.12 shall be delivered,
(x) 8) the name and address of the Paying Agent and Conversion Agent, and
(xi) if the notice relates to a Fundamental Change, the estimated amount of any Make-Whole Premium and the respective percentages Cusip number or numbers of such Make-Whole Premium that will be paid (as contemplated by Section 6.1(b)) in shares of Common Stock and in cash (which indication shall be irrevocable), subject to the satisfaction (or waiver) of the conditions set forth in Section 6.1(c), in the event that a Holder should, in lieu of electing to have Securities repurchased on the Fundamental Change Repurchase Date, elect to convert such Securities during the Fundamental Change Conversion Period, and
(xii) any other information to be included therein pursuant to Section 6.1Securities. No failure of the Company to give the foregoing notices or defect therein shall limit any Holder's right to exercise a repurchase right or affect the validity of the proceedings for the repurchase of Securities. If any of the foregoing provisions or other provisions of this Article III Fourteen are inconsistent with applicable law, such law shall govern.
(b) To exercise a repurchase right pursuant to Section 3.1 or Section 3.2right, a Holder shall deliver to the Paying Agent Trustee on or before the 30th day after the date of the Company Notice (i) written notice (in the case of a repurchase pursuant to Section 3.1, a "Repurchase Notice" and, in the case of a repurchase pursuant to Section 3.2, a "Fundamental Change Repurchase Notice") of the Holder's exercise of such right, which notice shall set forth the name of the Holder, the principal amount of the Securities to be repurchased (and, if any Security is to repurchased in part, the serial number thereof, the portion of the principal amount thereof to be repurchased (which portion must be in principal amounts of $1,000 or a whole multiple of $1,000) and the name of the Person in which the portion thereof to remain outstanding Outstanding after such repurchase is to be registered), if certificated, the certificate numbers of the Securities to be repurchased, ) and a statement that an election to exercise the repurchase right pursuant to the terms and conditions specified in the Securities and the Indenture is being made thereby, and, in the event that any portion of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, shall be paid in shares of Common Stock, the name or names (with addresses) in which the certificate or certificates for shares of Common Stock shall be issued, and (ii) the Securities with respect to which the Repurchase Notice or Fundamental Change Repurchase Notice relates at any time after delivery repurchase right is being exercised. Such written notice shall be irrevocable, except that the right of the Repurchase Notice or the Fundamental Change Repurchase Notice, as the case may be (together with all necessary endorsements), at the offices of the Paying Agent, such delivery being a condition Holder to receipt by the Holder of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, thereof; provided, however, that such Repurchase Price or Fundamental Change Repurchase Price, as the case may be, shall be so paid pursuant to this Section 3.4(b) only if convert the Securities so delivered with respect to which the Paying Agent shall conform in all respects to the description thereof in the related Repurchase Notice or Fundamental Change Repurchase Notice. In the case of a repurchase right pursuant to Section 3.1 and Section 3.2, such delivery is being exercised shall be at any time from the opening of business on the date that is 20 Business Days prior to the Repurchase Date continue until the close of business on the second Business Day Repurchase Date.
(c) In the event a repurchase right shall be exercised in accordance with the terms hereof, the Company shall pay or cause to be paid to the Trustee the Repurchase Price in cash or shares of Common Stock, as provided above, for payment to the Holder on the Repurchase Date or, if shares of Common Stock are to be paid, as promptly after the Repurchase Date as practicable, together with accrued and unpaid interest to the Repurchase Date payable with respect to the Securities as to which the purchase right has been exercised; PROVIDED, HOWEVER, that installments of interest that mature on or prior to the Repurchase Date shall be payable in cash to the Holders of such Securities, or one or more Predecessor Securities, registered as such at the Fundamental Change close of business on the relevant Regular Record Date.
(d) If any Security (or portion thereof) surrendered for repurchase shall not be so paid on the Repurchase Date, the principal amount of such Security (or portion thereof, as the case may be) shall, subject until paid, bear interest to extension the extent permitted by applicable law from the Repurchase Date at the rate of 5 1/4% per annum, and each Security shall remain convertible into Common Stock until the principal of such Security (or portion thereof, as the case may be) shall have been paid or duly provided for.
(e) Any Security which is to comply with be repurchased only in part shall be surrendered to the Trustee (with, if the Company or the Trustee so requires, due endorsement by, or a written instrument of transfer in form satisfactory to the Company and the Trustee duly executed by, the Holder thereof or his attorney duly authorized in writing), and the Company shall execute, and the Trustee shall authenticate and make available for delivery to the Holder of such Security without service charge, a new Security or Securities, containing identical terms and conditions, each in an authorized denomination in aggregate principal amount equal to and in exchange for the unrepurchased portion of the principal of the Security so surrendered.
(f) Any issuance of shares of Common Stock in respect of the Repurchase Price shall be deemed to have been effected immediately prior to the close of business on the Repurchase Date and the Person or Persons in whose name or names any certificate or certificates for shares of Common Stock shall be issuable upon such repurchase shall be deemed to have become on the Repurchase Date the holder or holders of record of the shares represented thereby; PROVIDED, HOWEVER, that any surrender for repurchase on a date when the stock transfer books of the Company shall be closed shall constitute the Person or Persons in whose name or names the certificate or certificates for such shares are to be issued as the record holder or holders thereof for all purposes at the opening of business on the next succeeding day on which such stock transfer books are open. No payment or adjustment shall be made for dividends or distributions on any Common Stock issued upon repurchase of any Security declared prior to the Repurchase Date.
(g) No fractions of shares shall be issued upon repurchase of Securities. If more than one Security shall be repurchased from the same Holder and the Repurchase Price shall be payable in shares of Common Stock, the number of full shares which shall be issuable upon such repurchase shall be computed on the basis of the aggregate principal amount of the Securities so repurchased. Instead of any fractional share of Common Stock which would otherwise be issuable on the repurchase of any Security or Securities, the Company will deliver to the applicable lawHolder its check for the current market value of such fractional share. Owners The current market value of beneficial interests in Global a fraction of a share is determined by multiplying the current market price of a full share by the fraction, and rounding the result to the nearest cent. For purposes of this Section, the current market price of a share of Common Stock is the Closing Price Per Share of the Common Stock on the Trading Day immediately preceding the Repurchase Date.
(h) Any issuance and delivery of certificates for shares of Common Stock on repurchase of Securities shall provide be made without charge to the Holder of Securities being repurchased for such certificates or for any tax or duty in respect of the issuance or delivery of such certificates or the securities represented thereby; PROVIDED, HOWEVER, that the Company shall not be required to pay any tax or duty which may be payable in respect of (i) income of the Holder or (ii) any transfer involved in the issuance or delivery of certificates for shares of Common Stock in a Repurchase Notice name other than that of the Holder of the Securities being repurchased, and no such issuance or Fundamental Change Repurchase Notice delivery shall be made unless and until the Person requesting such issuance or delivery has paid to the Company the amount of any such tax or duty or has established, to the satisfaction of the Company, that such tax or duty has been paid.
(i) If shares of Common Stock to be delivered upon repurchase of a Security are to be registered in accordance a name other than that of the beneficial owner of such Security, then such Holder must deliver to the Trustee a Surrender Certificate, dated the date of surrender of such Restricted Security and signed by such beneficial owner, as to compliance with the Applicable Procedures restrictions on transfer applicable to such Restricted Security. Neither the Trustee nor any Registrar or Transfer Agent or other agents shall be required to register in a name other than that of the Depositarybeneficial owner shares of Common Stock issued upon repurchase of any such Restricted Security not so accompanied by a properly completed Surrender Certificate.
(j) All Securities delivered for repurchase shall be delivered to the Trustee to be canceled at the direction of the Trustee, which shall dispose of the same as provided in Section 3.9.
Appears in 1 contract
Notices; Method of Exercising Repurchase Right, Etc. (a1) Unless the Company shall have theretofore called for redemption all of the outstanding Securities, the Company shall give to the Trustee, the Paying Agent and all Holders of Securities, in the manner provided in this Section 3.4, a notice containing the information required pursuant to the Within ten days following provisions of this Section 3.4(a) (the "Company Notice") (i) on or before the 20th Business Day prior to the Repurchase Date or, in the event of a Fundamental Change arising from a any Change of Control, the anticipated Effective Date (but in no event earlier than 45 days prior to the Repurchase Date or anticipated Effective Date, as the case may be), and (ii) within 15 Business Days after the Company knows or reasonably should know of the occurrence of a Fundamental Change that arises as a result of any Termination of Trading. Prior to or concurrently with the delivery of any Company Notice, the Company will issue a press release or publish such information on the Company's then existing website including the information required to be included in such Company Notice hereunder. The Company shall also deliver mail a notice to each Holder (with a copy of any Company Notice to the Trustee. At ) describing the request transaction or transactions that constitute the Change of Control and expense of the Company on or before the fifth Business Day prior to the date on which the Company Notice is to be mailed, the Trustee shall provide the Company Notice to the Holders in accordance with the provisions of this Indenture. Each Company Notice shall statestating:
(i) the Repurchase Date or Date, which shall not be less than 20 Business Days, nor will it exceed 30 Business Days from the Fundamental Change date such notice is mailed (the "Repurchase Date, as the case may be,");
(ii) the date by which the repurchase right must be exercised,;
(iii) the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, and whether the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, shall be paid by the Company in cash or by delivery of shares of Common Stock, or a specified combination thereof and the percentage of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, that will be paid in shares of Common Stock (which indication shall be irrevocable, subject to the satisfaction (or waiver) of the conditions set forth in Section 3.3),;
(iv) if the notice relates to the occurrence of a Fundamental Change, the events causing the Fundamental Change and the date of the Fundamental Change,
(v) that Securities with respect to which a Holder gives a Repurchase Notice or Fundamental Change Repurchase Notice may be converted only if the Holder withdraws the Repurchase Notice or Fundamental Change Repurchase Notice as to such Securities in accordance with the terms of this Indenture,
(vi) a description of the procedure that which a Holder must follow to exercise a repurchase right, and the place or places where where, or procedures by which, such Securities Notes are to be surrendered for payment of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, and accrued but unpaid interest (and Liquidated Damages)interest, if any, to, but excluding, any to the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be,;
(viiv) that on the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be, the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, and accrued but unpaid interest (and Liquidated Damages)interest, if any, to, but excluding, any to the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be, will become due and payable upon each such Security Note designated by the Holder to be repurchased, and that interest thereon shall cease to accrue on and after said date,;
(viiivi) the Conversion Price Rate then in effect,, the date on which the right to convert the principal amount of the Notes to be repurchased will terminate and the 60 61 place or places where, or procedures by which, such Notes may be surrendered for conversion;
(ixvii) the place or places that the Security certificate (including Note with the Election "Option of Holder to Require Repurchase attached thereto) and Elect Purchase" as specified on the Repurchase Notice (as defined below) reverse of the Note shall be delivered, and, ;
(viii) that any Note not tendered shall continue to accrue interest;
(ix) that Holders shall be entitled to withdraw their election if the Security is Paying Agent receives, not later than the close of business on the second Business Day preceding the Repurchase Date, a Restricted Securitytelegram, telex, facsimile transmission or letter setting forth the name of the Holder, the place or places principal amount of Notes delivered for purchase, and a statement that such Holder is withdrawing his election to have the Transfer Certificate in the form set forth in Exhibit C, required by Section 2.12 shall be delivered,Notes purchased; and
(x) that Holders whose Notes are being purchased only in part shall be issued new Notes equal in principal amount to the name and address unpurchased portion of the Paying Agent and Conversion AgentNotes surrendered, and
(xi) if the notice relates which unpurchased portion must be equal to a Fundamental Change, the estimated $1,000 in principal amount of any Make-Whole Premium and the respective percentages of such Make-Whole Premium that will be paid (as contemplated by Section 6.1(b)) in shares of Common Stock and in cash (which indication shall be irrevocable), subject to the satisfaction (or waiver) of the conditions set forth in Section 6.1(c), in the event that a Holder should, in lieu of electing to have Securities repurchased on the Fundamental Change Repurchase Date, elect to convert such Securities during the Fundamental Change Conversion Period, and
(xii) any other information to be included therein pursuant to Section 6.1an integral multiple thereof. No failure of the Company to give the foregoing notices or defect therein shall limit any Holder's right to exercise a repurchase right or affect the validity of the proceedings for the repurchase of SecuritiesNotes. If any of the foregoing provisions or other provisions of this Article III 11 are inconsistent with applicable law, such law shall govern.
(b2) To exercise a repurchase right pursuant to Section 3.1 or Section 3.2right, a Holder shall deliver to the Paying Agent Trustee on or before the date specified in the repurchase notice (i) written notice (in the case of a repurchase pursuant to Section 3.1, a "Repurchase Notice" and, in the case of a repurchase pursuant to Section 3.2, a "Fundamental Change Repurchase Notice") of the Holder's exercise of such right, which notice shall set forth the name of the Holder, the principal amount of the Securities Notes to be repurchased (and, if any Security Note is to repurchased in part, the serial number thereof, the portion of the principal amount thereof to be repurchased (which portion must be in principal amounts of $1,000 or a whole multiple of $1,000) and the name of the Person in which the portion thereof to remain outstanding after such repurchase is to be registered), if certificated, the certificate numbers of the Securities to be repurchased, ) and a statement that an election to exercise the repurchase right pursuant to the terms and conditions specified in the Securities and the Indenture is being made thereby, and, in the event that any portion of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, shall be paid in shares of Common Stock, the name or names (with addresses) in which the certificate or certificates for shares of Common Stock shall be issued, and (ii) the Securities Notes with respect to which the Repurchase Notice or Fundamental Change Repurchase Notice relates at any time after delivery repurchase right is being exercised. The right of the Repurchase Notice or Holder to convert the Fundamental Change Repurchase Notice, as Notes with respect to which the case may be (together with all necessary endorsements), at the offices of the Paying Agent, such delivery being a condition to receipt by the Holder of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, thereof; provided, however, that such Repurchase Price or Fundamental Change Repurchase Price, as the case may be, shall be so paid pursuant to this Section 3.4(b) only if the Securities so delivered to the Paying Agent shall conform in all respects to the description thereof in the related Repurchase Notice or Fundamental Change Repurchase Notice. In the case of a repurchase right pursuant to Section 3.1 and Section 3.2, such delivery is being exercised shall be at any time from the opening of business on the date that is 20 Business Days prior to the Repurchase Date continue until the close of business on the second Business Day prior to the Repurchase Date or Date.
(3) In the Fundamental Change event a repurchase right shall be exercised in accordance with the terms hereof, on the Repurchase Date, the Company shall accept for payment all Notes or portions thereof properly tendered pursuant to the Change of Control Offer, deposit with 61 62 or pay or cause to be paid to the Trustee the Repurchase Price in cash or shares of Common Stock, as provided above, for payment by the Trustee to the Holder on the Repurchase Date or, if shares of Common Stock are to be paid, as promptly after the Repurchase Date as practicable; provided, however, that installments of interest that mature on or prior to the Repurchase Date shall be payable in cash to the Holders of such Notes, or one or more Predecessor Notes, registered as such at the close of business on the relevant Regular Record Date; and deliver or cause to be delivered to the Trustee the Notes so accepted together with an Officers' Certificate stating the aggregate principal amount of Notes or portions thereof being purchased by the Company.
(4) If any Note (or portion thereof) surrendered for repurchase shall not be so paid on the Repurchase Date, the principal amount of such Note (or portion thereof, as the case may be) shall, subject until paid, bear interest to extension the extent permitted by applicable law from the Repurchase Date at the rate specified therein, and each Note shall remain convertible into Common Stock until the principal of such Note (or portion thereof, as the case may be) shall have been paid or duly provided for.
(5) Any Note which is to comply with be repurchased only in part shall be surrendered to the Trustee (with, if the Company or the Trustee so requires, due endorsement by, or a written instrument of transfer in form satisfactory to the Company and the Trustee duly executed by, the Holder thereof or his attorney duly authorized in writing), and the Company shall execute, and the Trustee shall authenticate and mail (or cause to be transferred by book entry) to the Holder of such Note without service charge, a new Note or Notes, containing identical terms and conditions, each in an authorized denomination in aggregate principal amount equal to and in exchange for the unrepurchased portion of the principal of the Note so surrendered; provided that each such new Note shall be in principal amount of $1,000 or an integral multiple thereof.
(6) Any issuance of shares of Common Stock in respect of the Repurchase Price shall be deemed to have been effected immediately prior to the close of business on the Repurchase Date and the Person or Persons in whose name or names any certificate or certificates for shares of Common Stock shall be issuable upon such repurchase shall be deemed to have become on the Repurchase Date the holder or holders of record of the shares represented thereby; provided, however, that any surrender for repurchase on a date when the stock transfer books of the Company shall be closed shall constitute the Person or Persons in whose name or names the certificate or certificates for such shares are to be issued as the record holder or holders thereof for all purposes at the opening of business on the next succeeding day on which such stock transfer books are open. No payment or adjustment shall be made for dividends or distributions on any Common Stock issued upon repurchase of any Note declared prior to the Repurchase Date.
(7) No fractions of shares shall be issued upon repurchase of Notes. If more than one Note shall be repurchased from the same Holder and the Repurchase Price shall 62 63 be payable in shares of Common Stock, the number of full shares which shall be issuable upon such repurchase shall be computed on the basis of the aggregate principal amount of the Notes so repurchased. Instead of any fractional share of Common Stock which would otherwise be issuable on the repurchase of any Note or Notes, the Company will deliver to the applicable lawHolder its check for the current market value of such fractional share or round up the number of shares of Common Stock issuable upon conversion to the nearest whole share). Owners The current market value of beneficial interests a fraction of a share is determined by multiplying the current market price of a full share by the fraction, and rounding the result to the nearest cent. For purposes of this Section, the current market price of a share of Common Stock is the Closing Price Per Share of the Common Stock on the Trading Day immediately preceding the Repurchase Date.
(8) Any issuance and delivery of certificates for shares of Common Stock on repurchase of Notes shall be made without charge to the Holder of Notes being repurchased for such certificates or for any tax or duty in Global Securities respect of the issuance or delivery of such certificates or the Notes represented thereby; provided, however, that the Company shall provide not be required to pay any tax or duty which may be payable in respect of (i) income of the Holder or (ii) any transfer involved in the issuance or delivery of certificates for shares of Common Stock in a Repurchase Notice name other than that of the Holder of the Notes being repurchased, and no such issuance or Fundamental delivery shall be made unless and until the Person requesting such issuance or delivery has paid to the Company the amount of any such tax or duty or has established, to the satisfaction of the Company, that such tax or duty has been paid.
(9) All Notes delivered for repurchase shall be delivered to the Trustee to be canceled at the direction of the Trustee, which shall dispose of the same as provided in Section 2.12.
(10) The provisions described above that require the Company to make a Change Repurchase Notice of Control Offer following a Change of Control shall be applicable regardless of whether or not any other provisions in accordance this Indenture are applicable. Notwithstanding any other provision of this Article 11, the Company shall not be required to make a Change of Control Offer upon a Change of Control if a third party makes the Change of Control Offer in the manner, at the times and otherwise in compliance with the Applicable Procedures requirements set forth in this Indenture applicable to a Change of Control Offer made by the DepositaryCompany and purchases all Notes validly tendered and not withdrawn under such Change of Control Offer.
Appears in 1 contract
Samples: Indenture (Orion Power Holdings Inc)
Notices; Method of Exercising Repurchase Right, Etc. (a) Unless the Company shall have theretofore called for redemption all of the outstanding Outstanding Securities, on or before the 15th day after the occurrence of a Change in Control, the Company shall give to or, at the written request of the Company, on or before the tenth (10th) day after receipt of such request, the Trustee, at the Paying Agent and Company's expense, shall give notice to all Holders of Securities, in the manner provided in this Section 3.4, a notice containing the information required pursuant to the following provisions of this Section 3.4(a) Securities (the "Company Notice") (i) on or before the 20th Business Day prior to the Repurchase Date or, in the event of a Fundamental Change arising from a Change of Control, the anticipated Effective Date (but in no event earlier than 45 days prior to the Repurchase Date or anticipated Effective Date, as the case may be), and (ii) within 15 Business Days after the Company knows or reasonably should know of the occurrence of a Fundamental the Change that arises in Control and of the repurchase right set forth herein arising as a result thereof. If the Company gives such notice of any Termination of Trading. Prior to or concurrently with the delivery of any Company Noticea repurchase right, the Company will issue a press release or publish such information on the Company's then existing website including the information required to be included in such Company Notice hereunder. The Company shall also deliver a copy of any Company Notice such notice of a repurchase right to the Trustee. At the request and expense of the Company on or before the fifth Business Day prior to the date on which the Company Notice is to be mailed, the Trustee shall provide the Company Notice to the Holders in accordance with the provisions of this Indenture. Each Company Notice shall state:
(i) the Repurchase Date or date of such Change in Control and, briefly, the Fundamental events causing such Change Repurchase Date, as the case may be,in Control;
(ii) the date by which the repurchase right Change in Control Purchase Notice (as defined below) must be exercised,delivered;
(iii) the Repurchase Price or Date;
(iv) the Fundamental Change Repurchase Price, as the case may be, and whether the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, shall be paid by the Company in cash or by delivery of shares of Common Stock, or a specified combination thereof and the percentage of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, that will be paid in shares of Common Stock (which indication shall be irrevocable, subject to the satisfaction (or waiver) of the conditions set forth in Section 3.3),
(iv) if the notice relates to the occurrence of a Fundamental Change, the events causing the Fundamental Change and the date of the Fundamental Change,;
(v) that Securities with respect to which a Holder gives a Repurchase Notice or Fundamental Change Repurchase Notice may be converted only if the Holder withdraws the Repurchase Notice or Fundamental Change Repurchase Notice as to such Securities in accordance with the terms of this Indenture,
(vi) a description of the procedure that which a Holder must follow to exercise a repurchase right, and ;
(vi) the procedures for withdrawing a Change in Control Purchase Notice;
(vii) the place or places where such Securities are to be surrendered for payment of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, and accrued but unpaid interest (and Liquidated Damages)interest, if any, to, but excluding, the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be,
(vii) that on the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be, the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, and accrued but unpaid interest (and Liquidated Damages), if any, to, but excluding, the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be, will become due and payable upon each such Security designated by the Holder to be repurchased, and that interest thereon shall cease to accrue on and after said date,;
(viii) briefly, the Conversion Price then in effect,conversion rights of Holders of Securities;
(ix) the place or places that conversion price and any adjustments thereto, the Security certificate (including date on which the Election of Holder right to Require Repurchase attached thereto) convert the Securities will terminate and the Repurchase Notice (as defined below) shall places where such Securities may be delivered, and, if the Security is a Restricted Security, the place or places that the Transfer Certificate in the form set forth in Exhibit C, required by Section 2.12 shall be delivered,surrendered for conversion;
(x) that Holders who want to convert Securities must satisfy the name and address of requirements set forth in the Paying Agent and Conversion Agent, Securities; and
(xi) if the notice relates to a Fundamental Change, the estimated amount of any Make-Whole Premium and the respective percentages of such Make-Whole Premium that will be paid (as contemplated by Section 6.1(b)) in shares of Common Stock and in cash (which indication shall be irrevocable), subject to the satisfaction (or waiver) of the conditions set forth in Section 6.1(c), in the event that a Holder should, in lieu of electing to have Securities repurchased on the Fundamental Change Repurchase Date, elect to convert such Securities during the Fundamental Change Conversion Period, and
(xii) any other information to be included therein pursuant to Section 6.1. No no failure of the Company to give the foregoing notices notice or defect therein shall limit any Holder's right to exercise a repurchase right or affect the validity of the proceedings for the repurchase of the Securities. If any of the foregoing provisions or other provisions of this Article III are inconsistent with applicable law, such law shall govern.
(b) To exercise a repurchase right pursuant to Section 3.1 or Section 3.2right, a Holder shall deliver to the Paying Agent (i) or an office or agency maintained by the Company for such purpose in the Borough of Manhattan, The City of New York, prior to the close of business on or before the Repurchase Date written notice (in the case of a repurchase pursuant to Section 3.1, a "Repurchase Notice" and, in the case of a repurchase pursuant to Section 3.2, a "Fundamental Change Repurchase Notice") of the Holder's exercise of such rightright (the "Change in Control Purchase Notice"), which notice shall set forth (i) the name of the Holder, the principal amount of the Securities to be repurchased (and, if any Security is to be repurchased in part, the portion of the principal amount thereof to be repurchased (which portion must be in principal amounts of $1,000 or a whole multiple of $1,000) and the name of the Person in which the portion thereof to remain outstanding after such repurchase is to be registered), if certificated, the certificate numbers of the Securities to be repurchased, ) and a statement that an election to exercise the repurchase right is being made thereby pursuant to the terms and conditions specified in applicable provisions of the Securities and the Indenture is being made therebySecurities, and, in the event that any portion of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, shall be paid in shares of Common Stock, the name or names (with addresses) in which the certificate or certificates for shares of Common Stock shall be issued, and (ii) the certificate numbers of the Securities with respect to which the Repurchase Notice repurchase right is being exercised.
(c) In the event a repurchase right shall be exercised in accordance with the terms hereof, the Company shall pay or Fundamental Change Repurchase Notice relates at any time after delivery of the Repurchase Notice or the Fundamental Change Repurchase Notice, as the case may cause to be (together with all necessary endorsements), at the offices of paid to the Paying Agent, such delivery being a condition to receipt by the Holder of Agent the Repurchase Price in cash or the Fundamental Change Repurchase Priceshares of Common Stock, as provided above, for payment to the case may beHolder on the Repurchase Date or, if shares of Common Stock are to be issued, with respect to the Securities (or portion thereof) as to which the repurchase right has been exercised; provided, however, that such Security for which a repurchase right has been exercised has been delivered to the Paying Agent at any time after the notice of exercise of a repurchase right shall have been given. Payment of the Repurchase Price for such Security or, if shares of Common Stock are to be issued, shall be made promptly following the later of the Business Day following the Repurchase Date and time of delivery of the Security. If the Paying Agent holds money sufficient to pay the Repurchase Price on the Business Day following the Repurchase Date, then, immediately after the Repurchase Date, such Security shall cease to be outstanding and interest will cease to accrue and will be deemed paid regardless of whether such Security has been delivered to the Paying Agent, and all other rights of the Holder shall terminate (other than the right of such Holder to receive the Repurchase Price upon delivery of such Security).
(d) On or Fundamental Change prior to the Repurchase PriceDate, the Company shall deposit with the Trustee or with a Paying Agent (or, if the Company is acting as its own Paying Agent, segregate and hold in trust as provided in Section 10.03 of the Indenture) an amount of money sufficient to pay the Repurchase Price of the Securities which are to be repaid on the Repurchase Date.
(e) If any Security (or portion thereof) surrendered for repurchase shall not be so paid on the Business Day following the Repurchase Date, the principal amount of such Security (or portion thereof, as the case may be) shall, until paid, bear interest from the Repurchase Date at the rate of 5 1/2% per annum, and each Security shall remain convertible into Common Stock in accordance with Article 13 herein until the principal of such Security (or portion thereof, as the case may be) shall have been paid or duly provided for.
(f) Any Security which is to be repurchased only in part shall be so paid pursuant surrendered to this Section 3.4(b) only the Trustee (with, if the Securities Company or the Trustee so requires, due endorsement by, or a written instrument of transfer in form satisfactory to the Company and the Trustee duly executed by, the Holder thereof or his attorney duly authorized in writing), and the Company shall execute, and the Trustee shall authenticate and deliver to the Holder of such Security without service charge, a new Security or Securities, containing identical terms and conditions, each in an authorized denomination in aggregate principal amount equal to and in exchange for the portion of the principal of the Security so surrendered that was not repurchased.
(g) Any Holder that has delivered to the Trustee a Change in Control Purchase Notice shall have the right to withdraw such notice at any time prior to the close of business on the Repurchase Date by delivery of a written notice of withdrawal to the Paying Agent shall conform in all respects prior to the description thereof in close of business on such date. The notice of withdrawal shall state the related Repurchase Notice or Fundamental Change Repurchase Notice. In principal amount and the case certificate numbers of the Securities as to which the withdrawal notice relates and the principal amount, if any, which remains subject to the notice of exercise of a repurchase right pursuant right. A Security in respect of which a Holder has exercised its option to Section 3.1 and Section 3.2, require repurchase upon a Change in Control may thereafter be converted into Common Stock only if such delivery Holder withdraws its notice in accordance with the preceding sentence.
(h) Any issuance of shares of Common Stock in respect of the Repurchase Price shall be deemed to have been effected immediately prior to the close of business on the Repurchase Date and the person or persons in whose name or names any certificate or certificates for shares of Common Stock shall be issuable upon such repurchase shall be deemed to have become on the Repurchase Date the holder or holders of record of the shares represented thereby; provided, however, that any surrender for repurchase on a date when the stock transfer books of the Company shall be closed shall constitute the person or persons in whose name or names the certificate or certificates for such shares are to be issued as the record holder or holders thereof for all purposes at any time from the opening of business on the date that is 20 Business Days next succeeding day on which such stock transfer books are open. No payment or adjustment shall be made for dividends or distributions on any Common Stock issued upon repurchase of any Security declared prior to the Repurchase Date Date.
(i) No fractional shares of Common Stock or scrip representing fractional shares shall be issued upon repurchase of Securities. If more than one Security shall be repurchased from the same holder and the Repurchase Price shall be payable in shares of Common Stock, the number of full shares which shall be issued upon repurchase shall be computed on the basis of the aggregate principal amount of the Securities (or specified portions thereof to the extent permitted hereby) so repurchased. If any fractional share of stock otherwise would be issuable upon repurchase of any Security or Securities, the Company shall make an adjustment therefor in cash at the current market value thereof to the Holder of Securities. For these purposes, the current market value of a share of Common Stock shall be the Closing Price on the first Trading Day immediately preceding the Repurchase Date.
(j) The issue of stock certificates on repurchase of Securities shall be made without charge to the Holder of Securities being repurchased for any tax in respect of the issue thereof. The Company shall not, however, be required to pay any tax which may be payable in respect of any transfer involved in the issue and delivery of stock in any name other than that of the Holder of any Security repurchased, and the Company shall not be required to issue or deliver any such stock certificate unless and until the close of business on person or persons requesting the second Business Day prior issue thereof shall have paid to the Repurchase Date Company the amount of such tax or shall have established to the Fundamental Change Repurchase Date, as the case may be, subject to extension to comply with applicable law. Owners of beneficial interests in Global Securities shall provide a Repurchase Notice or Fundamental Change Repurchase Notice in accordance with the Applicable Procedures satisfaction of the DepositaryCompany that such tax has been paid.
Appears in 1 contract
Notices; Method of Exercising Repurchase Right, Etc. (a) Unless In the case of a Change in Control or a Termination of Trading, unless the Company shall have theretofore called for redemption all of the outstanding Outstanding Securities, prior to or on the 30th day after the occurrence of a Change in Control or a Termination of Trading, the Company, or, at the written request and expense of the Company prior to or on the 30th day after such occurrence, the Trustee, shall give to the Trustee, the Paying Agent and all Holders of SecuritiesSecurities notice, in the manner provided in this Section 3.413.2, of the occurrence of the Change of Control or a notice containing Termination of Trading and of the information required pursuant to the following provisions of this Section 3.4(a) Repurchase Right set forth herein arising as a result thereof (the "Fundamental Change Company Notice"). In the case of an Optional Repurchase Right, 20 Business Days prior to an Optional Repurchase Date the Company, or, at the written request and expense of the Company fifteen days prior to such date, the Trustee, shall give to all Holders of Securities a notice, in the manner provided in Section 13.2, of the Optional Repurchase Right (the "Optional Repurchase Right Company Notice" and, together with the Fundamental Change Company Notice, each a "Company Notice") (i) on or before the 20th Business Day prior to the Repurchase Date or, in the event of a Fundamental Change arising from a Change of Control, the anticipated Effective Date (but in no event earlier than 45 days prior to the Repurchase Date or anticipated Effective Date, as the case may be), and (ii) within 15 Business Days after the Company knows or reasonably should know of the occurrence of a Fundamental Change that arises as a result of any Termination of Trading. Prior to or concurrently with the delivery of any Company Notice, the Company will issue a press release or publish such information on the Company's then existing website including the information required to be included in such Company Notice hereunder. The Company shall also deliver a copy of any such Company Notice of a Repurchase Right to the Trustee. At the request and expense of the Company on or before the fifth Business Day prior to the date on which the Company Notice is to be mailed, the Trustee shall provide the Company Notice to the Holders in accordance with the provisions of this Indenture. Each Company Notice of a Repurchase Right shall state:
(i1) the Repurchase Date or the Fundamental Change applicable Repurchase Date, as the case may be,;
(ii2) the date by which the repurchase right Fundamental Change Repurchase Right or the Optional Repurchase Right must be exercised,;
(iii3) the Repurchase Price or the Fundamental Change Repurchase Priceand accrued and unpaid interest (including Additional Amounts, as the case may beif any), and if any;
(4) whether the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, shall be paid by the Company in cash or by delivery of shares of Common StockADRs, or a specified combination thereof and thereof, specifying the percentage of each;
(5) if the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, that will be paid in shares of Common Stock (which indication shall be irrevocableADRs, subject to the satisfaction (or waiver) method for calculating the average Trading Price of the conditions set forth in Section 3.3),ADRs;
(iv) if the notice relates to the occurrence of a Fundamental Change, the events causing the Fundamental Change and the date of the Fundamental Change,
(v) that Securities with respect to which a Holder gives a Repurchase Notice or Fundamental Change Repurchase Notice may be converted only if the Holder withdraws the Repurchase Notice or Fundamental Change Repurchase Notice as to such Securities in accordance with the terms of this Indenture,
(vi6) a description of the procedure that which a Holder must follow to exercise a repurchase rightits Repurchase Right, and the place or places where such Securities Securities, are to be surrendered for payment of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, and accrued but and unpaid interest (and Liquidated Damages)interest, if any, to, but excluding, the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be,;
(vii7) that on the applicable Repurchase Date or the Fundamental Change Repurchase Date, as the case may be, the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, and accrued but and unpaid interest (and Liquidated Damages)interest, if any, to, but excluding, the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be, will become due and payable in cash upon each such Security designated by the Holder to be repurchased, and that interest thereon shall cease to accrue on and after said date,;
(viii) 8) the Conversion Price Rate then in effect,, the date on which the right to convert the principal amount of the Securities to be repurchased will terminate and the place where such Securities may be surrendered for conversion, and
(ix9) the place or places that where such Securities, together with the Security Option to Elect Repayment certificate (including the Election included in Exhibit A annexed hereto are to be delivered for payment of Holder to Require Repurchase attached thereto) and the Repurchase Notice (as defined below) shall be delivered, andPrice and accrued and unpaid interest, if the Security is a Restricted Security, the place or places that the Transfer Certificate in the form set forth in Exhibit C, required by Section 2.12 shall be delivered,
(x) the name and address of the Paying Agent and Conversion Agent, and
(xi) if the notice relates to a Fundamental Change, the estimated amount of any Make-Whole Premium and the respective percentages of such Make-Whole Premium that will be paid (as contemplated by Section 6.1(b)) in shares of Common Stock and in cash (which indication shall be irrevocable), subject to the satisfaction (or waiver) of the conditions set forth in Section 6.1(c), in the event that a Holder should, in lieu of electing to have Securities repurchased on the Fundamental Change Repurchase Date, elect to convert such Securities during the Fundamental Change Conversion Period, and
(xii) any other information to be included therein pursuant to Section 6.1any. No failure of the Company to give the foregoing notices or defect therein shall limit any Holder's right to exercise a repurchase right Repurchase Right or affect the validity of the proceedings for the repurchase of Securities. If any of the foregoing provisions or other provisions of this Article III 11 are inconsistent with applicable law, such law shall govern.
(b) To exercise a repurchase right pursuant to Section 3.1 its Optional Repurchase Right or Section 3.2its Fundamental Change Repurchase Right, as the case may be, a Holder shall deliver to the Paying Agent (i) written notice (Trustee on or prior to the close of business two Business Days prior to the applicable Optional Repurchase Date in the case of an Optional Repurchase Right, or prior to or on the 30th day after the date of the Company Notice in the case of a repurchase pursuant to Section 3.1, Change in Control or a "Repurchase Notice" and, in the case Termination of a repurchase pursuant to Section 3.2, a "Fundamental Change Repurchase Notice"Trading:
(1) written notice of the Holder's exercise of such right, which notice shall set forth the name of the Holder, the principal amount of the Securities to be repurchased (and, if any Security is to be repurchased in part, the serial number thereof, the portion of the principal amount thereof to be repurchased (which portion must be in principal amounts of $1,000 or a whole multiple of $1,000repurchased) and the name of the Person in which the portion thereof to remain outstanding after such repurchase is to be registered), if certificated, the certificate numbers of the Securities to be repurchased, and a statement that an election to exercise the repurchase right pursuant to the terms and conditions specified in the Securities and the Indenture applicable Repurchase Right is being made thereby, and, in the event that any portion of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, shall be paid in shares of Common Stockwhole or in part in ADRs, the name or names (with addresses) in which the certificate or certificates for shares of Common Stock the ADRs shall be issued;
(2) the Securities with respect to which the Repurchase Right is being exercised; and
(3) in the event the Company elects to pay the Repurchase Price to be paid as of such Repurchase Date, and in whole or in part, in ADRs but such portion of the Repurchase Price shall ultimately be payable to such Holder entirely in cash because any of the conditions to payment of the Repurchase Price in ADRs is not satisfied prior to the close of business on such Repurchase Date, as set forth in Section 11.2, whether such Holder elects (iii) to withdraw such Repurchase Notice as to some or all of the Securities to which the Repurchase Notice or Fundamental Change such Repurchase Notice relates (stating the Principal Amount at any time after delivery Maturity and certificate numbers of the Securities as to which such withdrawal shall relate), or (ii) to receive cash in respect of the entire Repurchase Price for all Securities (or portions thereof) to which such Repurchase Notice or relates. Such written notice shall be irrevocable, except that the Fundamental Change Repurchase Notice, as the case may be (together with all necessary endorsements), at the offices right of the Paying Agent, such delivery being a condition Holder to receipt by convert the Holder of Securities with respect to which the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, thereof; provided, however, that such Repurchase Price or Fundamental Change Repurchase Price, as the case may be, Right is being exercised shall be so paid pursuant to this Section 3.4(b) only if the Securities so delivered to the Paying Agent shall conform in all respects to the description thereof in the related Repurchase Notice or Fundamental Change Repurchase Notice. In the case of a repurchase right pursuant to Section 3.1 and Section 3.2, such delivery shall be at any time from the opening of business on the date that is 20 Business Days prior to the Repurchase Date continue until the close of business on the second Business Day prior immediately preceding the Repurchase Date.
(c) In the event a Repurchase Right shall be exercised in accordance with the terms hereof, the Company shall pay or cause to be paid to the Trustee the Repurchase Price in cash or ADRs, as provided above, for payment to the Holder on the Repurchase Date or, if ADRs are to be paid, as promptly after the Repurchase Date as practicable, together with accrued and unpaid interest to, but excluding, the Repurchase Date payable in cash with respect to the Securities as to which the Repurchase Right has been exercised; provided, however, that installments of interest that mature prior to or on the Fundamental Change Repurchase Date shall be payable in cash to the Holders of such Securities, or one or more Predecessor Securities, registered as such at the close of business on the relevant Regular Record Date.
(d) If any Security (or portion thereof) surrendered for repurchase shall not be so paid on the Repurchase Date, the principal amount of such Security (or portion thereof, as the case may be) shall, subject until paid, bear interest to extension the extent permitted by applicable law from the Repurchase Date at the Interest Rate, and each Security shall remain convertible into ADRs until the principal of such Security (or portion thereof, as the case may be) shall have been paid or duly provided for.
(e) Any Security which is to comply with applicable lawbe repurchased only in part shall be surrendered to the Trustee (with, if the Company or the Trustee so requires, due endorsement by, or a written instrument of transfer in form satisfactory to the Company and the Trustee duly executed by the Holder thereof or his attorney duly authorized in writing), and the Company shall execute, and the Trustee shall authenticate and make available for delivery to the Holder of such Security without service charge, a new Security or Securities, containing identical terms and conditions, each in an authorized denomination in aggregate principal amount equal to and in exchange for the unrepurchased portion of the principal of the Security so surrendered.
(f) Any issuance of ADRs in respect of the Repurchase Price shall be deemed to have been effected immediately prior to the close of business on the Repurchase Date and the Person or Persons in whose name or names any certificate or certificates representing the ADRs shall be issuable upon such repurchase shall be deemed to have become on the Repurchase Date the holder or holders of record of the ADRs represented thereby; provided, however, that any surrender for repurchase on a date when the stock transfer books of the Guarantor shall be closed shall constitute the Person or Persons in whose name or names the ADRs are to be issued as the holder or holders of record of the shares represented thereby for all purposes at the opening of business on the next succeeding day on which such stock transfer books are open. Owners No payment or adjustment shall be made for dividends or distributions on any ADRs issued upon repurchase of beneficial interests any Security declared prior to the Repurchase Date.
(g) No fractions of shares of ADRs shall be issued upon repurchase of any Security or Securities. If more than one Security shall be repurchased from the same Holder and the Repurchase Price shall be payable in Global ADRs, the number of full shares which shall be issued upon such repurchase shall be computed on the basis of the aggregate principal amount of the Securities (or specified portions thereof) to be so repurchased. Instead of any fractional share of ADRs which would otherwise be issued on the repurchase of any Security or Securities (or specified portions thereof), the Company shall pay a cash adjustment in respect of such fraction (calculated to the nearest one-100th of a share) in an amount equal to the same fraction of the Trading Price of the ADRs as of the Trading Day preceding the Repurchase Date.
(h) Any issuance and delivery of certificates representing ADRs on repurchase of Securities shall provide a Repurchase Notice be made without charge to the Holder of Securities being repurchased for such certificates or Fundamental Change Repurchase Notice for any tax or duty in accordance with the Applicable Procedures respect of the Depositaryissuance or delivery of such certificates or the Securities represented thereby; provided, however, that the Company shall not be required to pay any tax or duty which may be payable in respect of (i) income of the Holder or (ii) any transfer involved in the issuance or delivery of certificates representing ADRs in a name other than that of the Holder of the Securities being repurchased, and no such issuance or delivery shall be made unless the Person requesting such issuance or delivery has paid to the Company the amount of any such tax or duty or has established, to the satisfaction of the Company, that such tax or duty has been paid.
(i) All Securities delivered for repurchase shall be delivered to the Trustee to be canceled at the direction of the Trustee, which shall dispose of the same as provided in Section 2.17.
Appears in 1 contract
Notices; Method of Exercising Repurchase Right, Etc. (a) Unless Within 30 calendar days after the Company shall have theretofore called for redemption all occurrence of the outstanding Securitiesa Repurchase Event, the Company shall give make an irrevocable unconditional offer (a "Repurchase Offer") to the Trustee, Holders to purchase for U.S. Legal Tender all of the Paying Agent and all Holders of Securities, in the manner provided in this Section 3.4, a notice containing the information required Debentures pursuant to the following provisions offer described in clause (b) of this Section 3.4(a) (12.2 at the "Company Notice") (i) on or before the 20th Business Day prior Repurchase Price plus accrued and unpaid interest, if any, to the Repurchase Date or, in the event of a Fundamental Change arising from a Change of Control, the anticipated Effective Date (but in no event earlier than 45 days prior to the Repurchase Date or anticipated Effective Date, as the case may be), and (ii) within 15 . Within five Business Days after each date upon which the Company knows or reasonably should know of the occurrence of a Fundamental Change that arises as Repurchase Event requiring the Company to make a result of any Termination of Trading. Prior Repurchase Offer pursuant to or concurrently with the delivery of any Company NoticeSection 12.1 hereof, the Company will issue shall so notify the Trustee.
(b) Notice of a press release or publish such information on Repurchase Offer shall be sent, not more than 30 calendar days after the Company's then existing website including occurrence of the information required Repurchase Event, by first class mail, by the Company to be included in such Company Notice hereunder. The Company shall also deliver each Holder at its registered address, with a copy of any Company Notice to the Trustee. At the request and expense of the Company on or before the fifth Business Day prior to the date on which the Company Notice is to be mailed, the Trustee shall provide the Company Notice The notice to the Holders in accordance with shall contain all instructions and materials required by applicable law and shall contain or make available to Holders other information material to the provisions decision of this Indenture. Each Company Notice shall state:
(i) Holders generally to tender Debentures pursuant to the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be,
(ii) the date by which the repurchase right must be exercised,
(iii) the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, and whether the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, shall be paid by the Company in cash or by delivery of shares of Common Stock, or a specified combination thereof and the percentage of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, that will be paid in shares of Common Stock (which indication shall be irrevocable, subject to the satisfaction (or waiver) of the conditions set forth in Section 3.3),
(iv) if the notice relates to the occurrence of a Fundamental Change, the events causing the Fundamental Change and the date of the Fundamental Change,
(v) that Securities with respect to which a Holder gives a Repurchase Notice or Fundamental Change Repurchase Notice may be converted only if the Holder withdraws the Repurchase Notice or Fundamental Change Repurchase Notice as to such Securities in accordance with the terms of this Indenture,
(vi) a description of the procedure that a Holder must follow to exercise a repurchase right, and the place or places where such Securities are to be surrendered for payment of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, and accrued but unpaid interest (and Liquidated Damages), if any, to, but excluding, the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be,
(vii) that on the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be, the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, and accrued but unpaid interest (and Liquidated Damages), if any, to, but excluding, the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be, will become due and payable upon each such Security designated by the Holder to be repurchased, and that interest thereon shall cease to accrue on and after said date,
(viii) the Conversion Price then in effect,
(ix) the place or places that the Security certificate (including the Election of Holder to Require Repurchase attached thereto) and the Repurchase Notice (as defined below) shall be delivered, and, if the Security is a Restricted Security, the place or places that the Transfer Certificate in the form set forth in Exhibit C, required by Section 2.12 shall be delivered,
(x) the name and address of the Paying Agent and Conversion Agent, and
(xi) if the notice relates to a Fundamental Change, the estimated amount of any Make-Whole Premium and the respective percentages of such Make-Whole Premium that will be paid (as contemplated by Section 6.1(b)) in shares of Common Stock and in cash (which indication shall be irrevocable), subject to the satisfaction (or waiver) of the conditions set forth in Section 6.1(c), in the event that a Holder should, in lieu of electing to have Securities repurchased on the Fundamental Change Repurchase Date, elect to convert such Securities during the Fundamental Change Conversion Period, and
(xii) any other information to be included therein pursuant to Section 6.1Offer. No failure of the Company to give the foregoing notices such notice or defect therein shall limit any Holder's right to exercise a his repurchase right or affect the validity of the proceedings for the repurchase of Securitiesthe Debentures. If any The notice, which shall govern the terms of the foregoing provisions Repurchase Offer, shall state that:
(i) the Repurchase Offer is being made pursuant to such notice and this Article XII and that all Debentures, or other provisions portions thereof, properly tendered pursuant to the Repurchase Offer prior to the fifth Business Day prior to the Repurchase Date (the "Final Repurchase Put Date") will be accepted for payment;
(ii) the Repurchase Price, the Repurchase Date and the Final Repurchase Put Date;
(iii) that any Debenture, or portion thereof, not tendered or accepted for payment will continue to accrue interest, if interest is then accruing;
(iv) that, unless the Company defaults in depositing U.S. Legal Tender with the Paying Agent in accordance with the last paragraph of clause (c) of this Article III are inconsistent with applicable lawSection 12.2, such law or payment is otherwise prevented, any Debenture, or portion thereof, accepted for payment pursuant to the Repurchase Offer shall govern.cease to accrue interest after the Repurchase Date;
(bv) To exercise that Holders electing to have a repurchase right Debenture, or portion thereof, purchased pursuant to Section 3.1 or Section 3.2a Repurchase Offer will be required to surrender the Debenture, a with the form entitled "Option of Holder shall deliver to Elect Purchase" on the reverse of the Debenture completed, to the Paying Agent (iwhich may not for purposes of this Article XII, notwithstanding anything in this Indenture to the contrary, be the Company or any Affiliate of the Company) written notice (at the address specified in the case notice prior to the close of a repurchase pursuant business on the Final Repurchase Put Date;
(vi) that Holders will be entitled to Section 3.1withdraw their election if the Paying Agent receives, prior to the close of business on the Final Repurchase Put Date, a "Repurchase Notice" andtelegram, in the case of a repurchase pursuant to Section 3.2telex, a "Fundamental Change Repurchase Notice") of the Holder's exercise of such right, which notice shall set facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Securities Debentures the Holder is withdrawing and a statement containing a facsimile signature that such Holdxx xx withdrawing his election to have such principal amount of Debentures purchased;
(vii) that Holders whose Debentures were purchased only in part will be repurchased (and, if any Security is issued new Debentures equal in principal amount to repurchased in part, the unpurchased portion of the principal amount thereof Debentures surrendered; and
(viii) a brief description, to the extent known to the Company, of the events resulting in such Repurchase Event.
(c) Any such Repurchase Offer shall comply with all applicable provisions of federal and state laws, including those regulating tender offers, if applicable, and any provisions of this Indenture which conflict with such laws shall be deemed to be repurchased (which portion must be in principal amounts superseded by the provisions of $1,000 such laws. On or a whole multiple of $1,000) and before the name of the Person in which the portion thereof to remain outstanding after such repurchase is to be registered), if certificatedRepurchase Date, the certificate numbers of the Securities to be repurchased, and a statement that an election to exercise the repurchase right Company shall (a) accept for payment Debentures or portions thereof properly tendered pursuant to the terms and conditions specified in the Securities and the Indenture is being made thereby, and, in the event that any portion of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, shall be paid in shares of Common Stock, the name or names (with addresses) in which the certificate or certificates for shares of Common Stock shall be issued, and (ii) the Securities to which the Repurchase Notice or Fundamental Change Repurchase Notice relates at any time after delivery of the Repurchase Notice or the Fundamental Change Repurchase Notice, as the case may be (together with all necessary endorsements), at the offices of the Paying Agent, such delivery being a condition to receipt by the Holder of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, thereof; provided, however, that such Repurchase Price or Fundamental Change Repurchase Price, as the case may be, shall be so paid pursuant to this Section 3.4(b) only if the Securities so delivered to the Paying Agent shall conform in all respects to the description thereof in the related Repurchase Notice or Fundamental Change Repurchase Notice. In the case of a repurchase right pursuant to Section 3.1 and Section 3.2, such delivery shall be at any time from the opening of business on the date that is 20 Business Days Offer prior to the Repurchase Date until the close of business on the second Business Day prior Final Repurchase Put Date, (b) deposit with the Paying Agent U.S. Legal Tender sufficient to pay the Repurchase Price plus accrued and unpaid interest, if any, to the Repurchase Date of all Debentures so tendered and (c) deliver to the Trustee Debentures so accepted together with an Officers' Certificate listing the Debentures or portions thereof being purchased by the Fundamental Change Company. The Paying Agent shall promptly mail to the Holders of Debentures so accepted payment in an amount equal to the Repurchase Price plus accrued and unpaid interest, if any, to the Repurchase Date, as and the case may be, subject Trustee shall promptly authenticate and mail or deliver to extension such Holders a new Debenture equal in principal amount to comply with applicable law. Owners of beneficial interests in Global Securities shall provide a Repurchase Notice or Fundamental Change Repurchase Notice in accordance with the Applicable Procedures any unpurchased portion of the DepositaryDebenture surrendered. Any Debentures not so accepted shall be promptly mailed or delivered by the Company to the Holder thereof and the principal shall, until paid, bear interest to the extent permitted by applicable law from the Repurchase Date at the rate borne by the Debenture and each Debenture shall remain convertible into Common Stock until the principal of such Debenture shall have been paid or duly provided for. The Company shall publicly announce the results of the Repurchase Offer on or as soon as practicable after the Repurchase Date.
Appears in 1 contract
Notices; Method of Exercising Repurchase Right, Etc. (a) Unless the Company shall have theretofore called for redemption all of the outstanding Securities, the Company shall give to the Trustee, the Paying Agent and all Holders of Securities, in the manner provided in this Section 3.4, a notice containing the information required pursuant to the following provisions of this Section 3.4(a) (the "Company Notice") (i) on or before the 20th Business Day prior to the Repurchase Date or, in the event of a Fundamental Change arising from a Change of Control, the anticipated Effective Date (but in no event earlier than 45 days prior to the Repurchase Date or anticipated Effective Date, as the case may be), and (ii) within 15 Business Days 30th day after the Company knows or reasonably should know of the occurrence of a Fundamental Change that arises as a result of any Termination of Trading. Prior to or concurrently with the delivery of any Company NoticeDesignated Event, the Company will issue a press release or publish such information on the Company's then existing website including the information required to be included in such Company Notice hereunder. The Company shall also deliver a copy of any Company Notice to the Trustee. At or, at the request and expense of the Company on or before Company, the fifth Business Day prior Trustee, shall give to all Holders of Securities, notice (the date on which "Designated Event Notice") of the occurrence of the Designated Event and of the repurchase right set forth herein arising as a result thereof. If the Company gives such Designated Event Notice is to be mailedHolders, the Trustee it shall provide the Company also give such Designated Event Notice to the Holders in accordance Trustee. The Trustee shall not be charged with the provisions notice or knowledge of this Indenturea Designated Event until it shall have received a copy of such Designated Event Notice. Each Designated Event Notice shall describe such Designated Event, shall state that as a result of the occurrence of such Designated Event the Holder has the right to require the Company Notice to repurchase the Holder's Securities in whole or in part and shall state:
(i) the Repurchase Date or the Fundamental Change Designated Event Repurchase Date, as the case may be,
(ii) the date by which the repurchase right must be exercisedexercised pursuant to Section 3.14(b),
(iii) the Repurchase Price or the Fundamental Change Designated Event Repurchase Price, as the case may be, and whether the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, shall be paid by the Company in cash or by delivery of shares of Common Stock, or a specified combination thereof and the percentage of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, that will be paid in shares of Common Stock (which indication shall be irrevocable, subject to the satisfaction (or waiver) of the conditions set forth in Section 3.3),
(iv) if the notice relates to the occurrence of a Fundamental Change, the events causing the Fundamental Change and the date of the Fundamental Change,
(v) that Securities with respect to which a Holder gives a Repurchase Notice or Fundamental Change Repurchase Notice may be converted only if the Holder withdraws the Repurchase Notice or Fundamental Change Repurchase Notice as to such Securities in accordance with the terms of this Indenture,
(vi) a description of the procedure that which a Holder must follow to exercise a repurchase right, and the place or places where such Securities are to be surrendered for payment of the Designated Event Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, and accrued but and unpaid interest (and Liquidated Damages)interest, if any, to, but excluding, the Repurchase Date or the Fundamental Change Designated Event Repurchase Date, as the case may be,
(viiv) that on the Designated Event Repurchase Date or the Fundamental Change Repurchase Date, as the case may be, the Repurchase Price or the Fundamental Change Designated Event Repurchase Price, as the case may be, and accrued but and unpaid interest (and Liquidated Damages)interest, if any, to, but excluding, the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be, will become due and payable upon each such Security designated by the Holder to be repurchasedrepurchased (unless such Holder exercises its right to convert such Security pursuant to Article X of this Indenture), and that interest thereon shall cease to accrue on and after said datedate with respect to any Security designated by the Holder to be repurchased,
(viiivi) the Conversion Price Rate then in effect,, the date on which the right to convert the principal amount of the Securities to be repurchased will terminate and the place or places where such Securities may be surrendered for conversion, and
(ixvii) the place or places that the Security certificate (including the Election of Holder to Require Repurchase attached thereto) and the Repurchase Notice (as defined belownotice described in Section 3.14(b) shall be delivered, and, if the Security is a Restricted Security, the place or places that the Transfer Certificate in and the form set forth in Exhibit C, required by Section 2.12 shall be delivered,
(x) the name and address of the Paying Agent and Conversion Agent, and
(xi) if the notice relates to a Fundamental Change, the estimated amount of any Make-Whole Premium and the respective percentages of such Make-Whole Premium that will be paid (as contemplated by Section 6.1(b)) in shares of Common Stock and in cash (which indication shall be irrevocable), subject to the satisfaction (or waiver) of the conditions set forth in Section 6.1(c), in the event that a Holder should, in lieu of electing to have Securities repurchased on the Fundamental Change Repurchase Date, elect to convert such Securities during the Fundamental Change Conversion Period, and
(xii) any other information to be included therein pursuant to Section 6.1notice. No failure of the Company to give the foregoing notices or defect therein shall limit any Holder's right to exercise a repurchase right or affect the validity of the proceedings for the repurchase of Securities. If any of the foregoing provisions or other provisions of this Article III are inconsistent with applicable law, such law shall govern.
(b) To exercise a repurchase right pursuant to Section 3.1 or Section 3.2following a Designated Event, a Holder shall deliver to the Trustee or any Paying Agent on or before the 30th day after the date of the Designated Event Notice (i) written notice (in the case of a repurchase pursuant to Section 3.1, a "Repurchase Notice" and, in the case of a repurchase pursuant to Section 3.2, a "Fundamental Change Repurchase Notice") of the Holder's exercise of such rightright (a "Designated Event Repurchase Exercise Notice"), which notice shall set forth the name of the Holder, the principal amount certificate number of the Securities to be repurchased (and, if any Security is to repurchased in part, the portion of the principal amount thereof to be repurchased (which portion must be in principal amounts a Principal Amount of $1,000 or a whole an integral multiple of $1,000) thereof)), and the name of the Person in which the portion thereof to remain outstanding after such repurchase is to be registered), if certificated, the certificate numbers of the Securities to be repurchased, registered and a statement that an election to exercise the repurchase right pursuant to the terms and conditions specified in the Securities and the Indenture this Section 3.14(b) is being made thereby, and, thereby with respect to the Securities so specified for repurchase in the event that any portion of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, shall be paid in shares of Common Stock, the name or names (with addresses) in which the certificate or certificates for shares of Common Stock shall be issued, such notice and (ii) delivery or book-entry transfer of the Securities to which the Repurchase Notice or Fundamental Change Repurchase Notice relates Paying Agent at any time after delivery of the Repurchase applicable Designated Event Notice or the Fundamental Change Repurchase Notice, as the case may be (together with all necessary endorsements), ) at the offices office of the Paying Agent, such delivery being a condition to receipt by the Holder of the Designated Event Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, thereoftherefor; provided, however, provided that such Designated Event Repurchase Price or Fundamental Change Repurchase Price, as the case may be, shall be so paid pursuant to this Section 3.4(b) 3.14 only if the Securities Security so delivered to the Paying Agent shall conform in all respects to the description thereof in the related Designated Event Repurchase Notice or Fundamental Change Repurchase Exercise Notice. In Securities in respect of which a Designated Event Repurchase Exercise Notice has been given by the case Holder thereof may not be converted pursuant to Article X hereof on or after the date of the delivery of such Designated Event Repurchase Exercise Notice unless such Designated Event Repurchase Exercise Notice has first been validly withdrawn. A Designated Event Repurchase Exercise Notice may be withdrawn by means of a repurchase right pursuant written notice of withdrawal delivered to Section 3.1 and Section 3.2, such delivery shall be the office of the Paying Agent at any time from the opening of business on the date that is 20 Business Days prior to the Repurchase Date until the close of business on the second Business Day immediately preceding the Designated Event Repurchase Date, specifying:
(1) the certificate number, if any, of the Security in respect of which such notice of withdrawal is being submitted, or the appropriate Depositary information if the Security in respect of which such notice of withdrawal is being submitted is represented by a Global Security,
(2) the Principal Amount of the Security with respect to which such notice of withdrawal is being submitted, and
(3) the Principal Amount, if any, of such Security which remains subject to the original Designated Event Repurchase Exercise Notice and which has been or will be delivered for purchase by the Company. The Paying Agent shall promptly notify the Company of the receipt by it of any Designated Event Repurchase Exercise Notice or written notice of withdrawal thereof.
(c) If the Holder of a Security exercises a repurchase right in accordance with this Section, the Company shall, prior to 10:00 a.m. (New York City time) on the Business Day following the Designated Event Repurchase Date, deposit with the Paying Agent (or, if the Company or a Subsidiary or an Affiliate of either of them is acting as the Paying Agent, shall segregate and hold in trust as provided in Section 2.04) the Designated Event Repurchase Price in cash (in immediately available funds if deposited on such Business Day) for payment to such Holder together with accrued and unpaid interest, if any, to but excluding the Designated Event Repurchase Date payable with respect to the Securities as to which such Holder has exercised the repurchase right; provided, however, that installments of interest due on or prior to the Designated Event Repurchase Date shall be payable in cash to the Holders of such Securities, or one or more Predecessor Securities, registered as such at the Fundamental Change close of business on the relevant Regular Record Date, in each case according to the terms and provisions of Article XI of this Indenture.
(d) If any Security (or portion thereof) surrendered for repurchase shall not be so paid on the Designated Event Repurchase Date, the principal amount of such Security (or portion thereof, as the case may be) shall, subject until paid, bear interest to extension the extent permitted by applicable law from the Designated Event Repurchase Date at the rate of 4.50% per annum.
(e) With respect to comply any Security which is to be repurchased only in part, the Trustee shall authenticate and make available for delivery to the Holder of such Security without service charge, a new Security or Securities, containing identical terms and conditions, each in an authorized denomination in aggregate principal amount equal to and in exchange for the unrepurchased portion of the principal of the Security so surrendered.
(f) Any purchase by the Company contemplated pursuant to the provisions of this Section shall be consummated by the delivery of the consideration to be received by the Holder promptly following the later of (i) the Designated Event Repurchase Date and (ii) the time of the book-entry transfer or delivery of the Security.
(g) Subject to Section 8.02, the Paying Agent shall return to the Company any cash that remains unclaimed, together with applicable law. Owners interest, if any, thereon, held by it for the payment of beneficial interests the Designated Event Repurchase Price; provided that to the extent that the aggregate amount of cash deposited by the Company pursuant to Section 3.14(c) exceeds the aggregate Designated Event Repurchase Price of the Securities or portions thereof which the Company is obligated to purchase as of the Designated Event Repurchase Date then, unless otherwise agreed in Global Securities shall provide a Repurchase Notice or Fundamental Change Repurchase Notice in accordance writing with the Applicable Procedures of Company, promptly after the DepositaryBusiness Day following the Designated Event Repurchase Date, the Paying Agent shall return any such excess to the Company together with interest, if any, thereon.
Appears in 1 contract
Samples: Indenture (Avatar Holdings Inc)
Notices; Method of Exercising Repurchase Right, Etc. (a) Unless the Company shall have theretofore called for redemption all of the outstanding SecuritiesNotes pursuant to Article III, on or before the 30th day after the occurrence of a Repurchase Event, the Company or, at the request of the Company on or before the 15th day after such occurrence, the Trustee shall give to the Trustee, the Paying Agent and all Holders holders of Securities, in the manner provided in this Section 3.4, a Notes notice containing the information required pursuant to the following provisions of this Section 3.4(a) (the "Company Notice") (i) on or before the 20th Business Day prior to the Repurchase Date or, in the event of a Fundamental Change arising from a Change of Control, the anticipated Effective Date (but in no event earlier than 45 days prior to the Repurchase Date or anticipated Effective Date, as the case may be), and (ii) within 15 Business Days after the Company knows or reasonably should know of the occurrence of a Fundamental Change that arises the Repurchase Event and of the repurchase right set forth herein arising as a result of any Termination of Trading. Prior to or concurrently with the delivery of any Company Notice, the Company will issue a press release or publish such information on the Company's then existing website including the information required to be included in such Company Notice hereunderthereof. The Company shall also deliver a copy of any Company Notice such notice of a repurchase right to the Trustee. At the request and expense Each notice of the Company on or before the fifth Business Day prior to the date on which the Company Notice is to be mailed, the Trustee shall provide the Company Notice to the Holders in accordance with the provisions of this Indenture. Each Company Notice a repurchase right shall state:
(i1) the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be,
(ii2) the date by which the repurchase right must be exercised,
, (iii3) the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, and whether the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, shall be paid by the Company in cash or by delivery of shares of Common Stock, or a specified combination thereof and the percentage of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, that will be paid in shares of Common Stock (which indication shall be irrevocable, subject to the satisfaction (or waiver) of the conditions set forth in Section 3.3),
(iv) if the notice relates to the occurrence of a Fundamental Change, the events causing the Fundamental Change and the date of the Fundamental Change,
(v) that Securities with respect to which a Holder gives a Repurchase Notice or Fundamental Change Repurchase Notice may be converted only if the Holder withdraws the Repurchase Notice or Fundamental Change Repurchase Notice as to such Securities in accordance with the terms of this Indenture,
(vi4) a description of the procedure that which a Holder holder must follow to exercise a repurchase right, and the place or places where such Securities are to be surrendered for payment of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, and accrued but unpaid interest (and Liquidated Damages), if any, to, but excluding, the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be,
(vii5) that on the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be, the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, and accrued but unpaid interest (and Liquidated Damages), if any, to, but excluding, the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be, will become due and payable upon each such Security Note designated by the Holder holder to be repurchased, and that interest thereon shall cease to accrue on and after said date,
, (viii6) the Conversion Price then in effect,
Price, the date on which the right to convert the Notes to be repurchased will terminate and the places where such Notes may be surrendered for conversion, and (ix7) the place or places that the Security certificate (including the Election where such Notes are to be surrendered for payment of Holder to Require Repurchase attached thereto) and the Repurchase Notice (as defined below) shall be delivered, andPrice and accrued interest, if the Security is a Restricted Security, the place or places that the Transfer Certificate in the form set forth in Exhibit C, required by Section 2.12 shall be delivered,
(x) the name and address of the Paying Agent and Conversion Agent, and
(xi) if the notice relates to a Fundamental Change, the estimated amount of any Make-Whole Premium and the respective percentages of such Make-Whole Premium that will be paid (as contemplated by Section 6.1(b)) in shares of Common Stock and in cash (which indication shall be irrevocable), subject to the satisfaction (or waiver) of the conditions set forth in Section 6.1(c), in the event that a Holder should, in lieu of electing to have Securities repurchased on the Fundamental Change Repurchase Date, elect to convert such Securities during the Fundamental Change Conversion Period, and
(xii) any other information to be included therein pursuant to Section 6.1any. No failure of the Company to give the foregoing notices or defect therein shall limit any Holderholder's right to exercise a repurchase right or affect the validity of the proceedings for the repurchase of SecuritiesNotes. If any of the foregoing provisions or other provisions of this Article III are inconsistent with applicable law, such law shall govern.
(b) To exercise a repurchase right pursuant to Section 3.1 or Section 3.2right, a Holder holder shall deliver to the Paying Agent Trustee or any paying agent on or before the 30th day after the date of the Company Notice (i) written notice (in the case of a repurchase pursuant to Section 3.1, a "Repurchase Notice" and, in the case of a repurchase pursuant to Section 3.2, a "Fundamental Change Repurchase Notice") of the Holderholder's exercise of such right, which notice shall set forth the name of the Holderholder, the principal amount of the Securities Notes to be repurchased (and, if any Security Note is to repurchased in part, the serial number thereof, the portion of the principal amount thereof to be repurchased (which portion must be in principal amounts of $1,000 or a whole multiple of $1,000) and the name of the Person in which the portion thereof to remain outstanding after such repurchase is to be registered), if certificated, the certificate numbers of the Securities to be repurchased, ) and a statement that an election to exercise the repurchase right pursuant to the terms and conditions specified in the Securities and the Indenture is being made thereby, and, in and (ii) the Notes with respect to which the repurchase right is being exercised.
(c) In the event that any portion of a repurchase right shall be exercised in accordance with the terms hereof, the Company shall pay or cause to be paid to the Trustee or the paying agent the Repurchase Price in cash, for payment to the holder on the Repurchase Date.
(d) If any Note (or portion thereof) surrendered for repurchase shall not be so paid on the Fundamental Change Repurchase PriceDate, the principal amount of such Note (or portion thereof, as the case may be) shall, until paid, bear interest from the Repurchase Date at the rate of ____% per annum, and each Note shall be paid in shares of Common Stock, the name or names (with addresses) in which the certificate or certificates for shares of remain convertible into Common Stock shall be issued, and until the principal of such Note (ii) the Securities to which the Repurchase Notice or Fundamental Change Repurchase Notice relates at any time after delivery of the Repurchase Notice or the Fundamental Change Repurchase Notice, as the case may be (together with all necessary endorsements), at the offices of the Paying Agent, such delivery being a condition to receipt by the Holder of the Repurchase Price or the Fundamental Change Repurchase Priceportion thereof, as the case may be, thereof; provided, however, that such Repurchase Price ) shall have been paid or Fundamental Change Repurchase Price, as the case may be, duly provided for. 66
(e) Any Note which is to be repurchased only in part shall be so paid pursuant surrendered to this Section 3.4(b) only the Trustee (with, if the Securities Company or the Trustee so delivered requires, due endorsement by, or a written instrument of transfer in form satisfactory to the Paying Agent Company and the Trustee duly executed by, the holder thereof or his attorney duly authorized in writing), and the Company shall conform in all respects execute, and the Trustee shall authenticate and deliver to the description thereof holder of such Note without service charge, a new Note or Notes, containing identical terms and conditions, each in an authorized denomination in aggregate principal amount equal to and in exchange for the related Repurchase Notice or Fundamental Change Repurchase Notice. In the case of a repurchase right pursuant to Section 3.1 and Section 3.2, such delivery shall be at any time from the opening of business on the date that is 20 Business Days prior to the Repurchase Date until the close of business on the second Business Day prior to the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be, subject to extension to comply with applicable law. Owners of beneficial interests in Global Securities shall provide a Repurchase Notice or Fundamental Change Repurchase Notice in accordance with the Applicable Procedures unrepurchased portion of the Depositaryprincipal of the Note so surrendered.
Appears in 1 contract
Samples: Indenture (Iomega Corp)
Notices; Method of Exercising Repurchase Right, Etc. (a) Unless the Company shall have theretofore called for redemption of all of the outstanding SecuritiesOutstanding Notes, on or before the fifteenth (15th) calendar day after the occurrence of a Risk Event, the Company shall give to or, at the written request of the Company, the Trustee, the Paying Agent and shall mail to all Holders of Securities, in the manner provided in this Section 3.4, a notice containing the information required pursuant to the following provisions of this Section 3.4(a) (the "Company Notice") (i) on or before the 20th Business Day prior to the Repurchase Date or, in the event of a Fundamental Change arising from a Change of Control, the anticipated Effective Date (but in no event earlier than 45 days prior to the Repurchase Date or anticipated Effective Date, as the case may be), and (ii) within 15 Business Days after the Company knows or reasonably should know of the occurrence of a Fundamental Change that arises the Risk Event and of the purchase right set forth herein arising as a result of any Termination of Trading. Prior to or concurrently with the delivery of any Company Notice, the Company will issue a press release or publish such information on the Company's then existing website including the information required to be included in such Company Notice hereunderthereof. The Company shall also deliver a copy of any Company Notice such notice of a repurchase right to the Trustee. At the request Trustee and expense cause a copy of such Notice of a repurchase right, or a summary of the Company on or before the fifth Business Day prior to the date on which the Company Notice is information contained therein, to be mailed, the Trustee shall provide the Company Notice to the Holders published in accordance with the provisions a newspaper of this Indenturegeneral circulation in The City of New York. Each Company Notice notice of a repurchase right shall state:
(i1) the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be,
(ii2) the date by which the repurchase right must be exercised,
(iii3) the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, and whether the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, shall be paid by the Company in cash or by delivery of shares of Common Stock, or a specified combination thereof and the percentage of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, that will be paid in shares of Common Stock (which indication shall be irrevocable, subject to the satisfaction (or waiver) of the conditions set forth in Section 3.3),
(iv) if the notice relates to the occurrence of a Fundamental Change, the events causing the Fundamental Change and the date of the Fundamental Change,
(v) that Securities with respect to which a Holder gives a Repurchase Notice or Fundamental Change Repurchase Notice may be converted only if the Holder withdraws the Repurchase Notice or Fundamental Change Repurchase Notice as to such Securities in accordance with the terms of this Indenture,
(vi4) a description of the procedure that which a Holder must follow to exercise a repurchase right, and
(5) the conversion price then in effect, the date which the right to convert the principal amount of the Notes to be repurchased will terminate and the place or places where such Securities are to Notes may be surrendered for payment of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, and accrued but unpaid interest (and Liquidated Damages), if any, to, but excluding, the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be,
(vii) that on the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be, the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, and accrued but unpaid interest (and Liquidated Damages), if any, to, but excluding, the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be, will become due and payable upon each such Security designated by the Holder to be repurchased, and that interest thereon shall cease to accrue on and after said date,
(viii) the Conversion Price then in effect,
(ix) the place or places that the Security certificate (including the Election of Holder to Require Repurchase attached thereto) and the Repurchase Notice (as defined below) shall be delivered, and, if the Security is a Restricted Security, the place or places that the Transfer Certificate in the form set forth in Exhibit C, required by Section 2.12 shall be delivered,
(x) the name and address of the Paying Agent and Conversion Agent, and
(xi) if the notice relates to a Fundamental Change, the estimated amount of any Make-Whole Premium and the respective percentages of such Make-Whole Premium that will be paid (as contemplated by Section 6.1(b)) in shares of Common Stock and in cash (which indication shall be irrevocable), subject to the satisfaction (or waiver) of the conditions set forth in Section 6.1(c), in the event that a Holder should, in lieu of electing to have Securities repurchased on the Fundamental Change Repurchase Date, elect to convert such Securities during the Fundamental Change Conversion Period, and
(xii) any other information to be included therein pursuant to Section 6.1conversion. No failure of the Company to give the foregoing notices or defect therein shall limit any Holder's Holders right to exercise a repurchase purchase right or affect the validity of the proceedings for the repurchase of SecuritiesNotes. If any of the foregoing provisions or other provisions of this Article III are inconsistent with applicable law, such law shall govern.
(b) To exercise a repurchase right pursuant to Section 3.1 or Section 3.2right, a Holder shall deliver to the Paying Agent Trustee on or before the close of business on the fifth day preceding the Repurchase Date (i) written notice (in the case of a repurchase pursuant to Section 3.1, a "Repurchase Notice" and, in the case of a repurchase pursuant to Section 3.2, a "Fundamental Change Repurchase Notice") of the Holder's exercise of such right, which notice shall set forth the name of the Holder, the principal amount of the Securities to be repurchased (and, if any Security is to repurchased in part, the portion of the principal amount thereof to be repurchased (which portion must be in principal amounts of $1,000 or a whole multiple of $1,000) and the name of the Person in which the portion thereof to remain outstanding after such repurchase is to be registered), if certificated, the certificate numbers of the Securities Notes to be repurchased, and a statement that an election to exercise the repurchase right pursuant to the terms and conditions specified in the Securities and the Indenture is being made thereby, and, in the event that any portion of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, shall be paid in shares of Common Stock, the name or names (with addresses) in which the certificate or certificates for shares of Common Stock shall be issued, and (ii) the Securities Notes with respect to which the Repurchase Notice or Fundamental Change Repurchase Notice relates at any time after delivery repurchase right is being exercised, duly endorsed for transfer to the Company. Such written notice shall be irrevocable, except that the right of the Repurchase Notice or Holder to convert the Fundamental Change Repurchase Notice, as Notes with respect to which the case may be (together with all necessary endorsements), at the offices of the Paying Agent, such delivery being a condition to receipt by the Holder of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, thereof; provided, however, that such Repurchase Price or Fundamental Change Repurchase Price, as the case may be, shall be so paid pursuant to this Section 3.4(b) only if the Securities so delivered to the Paying Agent shall conform in all respects to the description thereof in the related Repurchase Notice or Fundamental Change Repurchase Notice. In the case of a repurchase right pursuant to Section 3.1 and Section 3.2, such delivery is being exercised shall be at any time from the opening of business on the date that is 20 Business Days prior to the Repurchase Date continue until the close of business on the second Business last Trading Day preceding the Repurchase Date.
(c) In the event a repurchase right shall be exercised in accordance with the terms hereof, the Company shall pay or cause to be paid the Repurchase Price in cash to the Holder on Repurchase Date, together with accrued and unpaid interest to the Repurchase Date payable with respect to the Notes to which the purchase right has been exercised, provided, however, that installments of interest that mature on or prior to the Repurchase Date shall be payable in cash to the Holders of such Notes, or one or more predecessor Notes, registered as such at the Fundamental Change close of business on the relevant Regular Record Date according to the terms and provisions of Article 3.
(d) If any Note surrendered for repurchase shall be so paid on the Repurchase Date, the principal shall, until paid, bear interest to the extent permitted by applicable law from the Repurchase Date at the rate borne by the Note and each Note shall remain convertible into Common Stock until the principal of such Note shall have been paid or duly provided for.
(e) Any Note which is to be repurchased only in part shall be surrendered to the Trustee (with, if the Company or the Trustee so requires, due endorsement by, or a written instrument of transfer in form satisfactory to the Company and the Trustee duly executed by, the Holder thereof or his attorney duly authorized in writing), and the Company shall execute, and the Trustee shall authenticate and deliver to the Holder of such Note without service charge, a new Note or Notes, containing identical terms and conditions, of any authorized denomination as requested by such Holder in aggregate principal amount equal to and in exchange for the case may beunrepurchased portion of the principal of the Note so surrendered.
(f) Prior to the Repurchase Date, subject to extension to comply with applicable law. Owners of beneficial interests in Global Securities the Company shall provide a Repurchase Notice or Fundamental Change Repurchase Notice in accordance deposit with the Applicable Procedures Trustee or with a Paying Agent (or, if the Company is acting as its own Paying Agent, segregate and hold in trust as provided in Section 10.3) an amount of money sufficient to pay the Repurchase Price of the DepositaryNotes that are to be repaid on the Repurchase Date.
Appears in 1 contract
Samples: Indenture (Buffets Inc)
Notices; Method of Exercising Repurchase Right, Etc. (a) Unless the Company shall have theretofore called for redemption all of the outstanding Outstanding Securities, prior to or on the 30/th/ day after the occurrence of a Change in Control, the Company, or, at the written request and expense of the Company prior to or on the 30/th/ day after such occurrence, the Trustee, shall give to the Trustee, the Paying Agent and all Holders of SecuritiesSecurities notice, in the manner provided in this Section 3.414.2, of the occurrence of the Change of Control and of the Repurchase Right set forth herein arising as a notice containing the information required pursuant to the following provisions of this Section 3.4(a) result thereof (the "Company Notice") (i) on or before the 20th Business Day prior to the Repurchase Date or, in the event of a Fundamental Change arising from a Change of Control, the anticipated Effective Date (but in no event earlier than 45 days prior to the Repurchase Date or anticipated Effective Date, as the case may be), and (ii) within 15 Business Days after the Company knows or reasonably should know of the occurrence of a Fundamental Change that arises as a result of any Termination of Trading. Prior to or concurrently with the delivery of any Company Notice, the Company will issue a press release or publish such information on the Company's then existing website including the information required to be included in such Company Notice hereunder. The Company shall also deliver a copy of any Company Notice such notice of a Repurchase Right to the Trustee. At the request and expense Each notice of the Company on or before the fifth Business Day prior to the date on which the Company Notice is to be mailed, the Trustee shall provide the Company Notice to the Holders in accordance with the provisions of this Indenture. Each Company Notice a Repurchase Right shall state:
(i1) the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be,;
(ii2) the date by which the repurchase right Repurchase Right must be exercised,;
(iii3) the Repurchase Price or the Fundamental Change Repurchase Priceand accrued and unpaid interest (including Additional Amounts, as the case may beif any), and if any;
(4) whether the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, shall be paid by the Company in cash or by delivery of shares of Common Stock, or a specified combination thereof and the percentage of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, that will be paid in shares of Common Stock (which indication shall be irrevocable, subject to the satisfaction (or waiver) of the conditions set forth in Section 3.3),;
(iv) if the notice relates to the occurrence of a Fundamental Change, the events causing the Fundamental Change and the date of the Fundamental Change,
(v) that Securities with respect to which a Holder gives a Repurchase Notice or Fundamental Change Repurchase Notice may be converted only if the Holder withdraws the Repurchase Notice or Fundamental Change Repurchase Notice as to such Securities in accordance with the terms of this Indenture,
(vi5) a description of the procedure that which a Holder must follow to exercise a repurchase rightits Repurchase Right, and the place or places where such Securities Securities, are to be surrendered for payment of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, and accrued but and unpaid interest (and Liquidated Damages)interest, if any, to, but excluding, the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be,;
(vii6) that on the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be, the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, and accrued but and unpaid interest (and Liquidated Damages)interest, if any, to, but excluding, the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be, will become due and payable in cash upon each such Security designated by the Holder to be repurchased, and that interest thereon shall cease to accrue on and after said date,;
(viii7) the Conversion Price Rate then in effect,, the date on which the right to convert the principal amount of the Securities to be repurchased will terminate and the place where such Securities may be surrendered for conversion, and
(ix) 8) the place or places that where such Securities, together with the Security Option to Elect Repayment Upon a Change of Control certificate (including the Election included in Exhibit A annexed hereto are to be delivered for payment --------- of Holder to Require Repurchase attached thereto) and the Repurchase Notice (as defined below) shall be delivered, andPrice and accrued and unpaid interest, if the Security is a Restricted Security, the place or places that the Transfer Certificate in the form set forth in Exhibit C, required by Section 2.12 shall be delivered,
(x) the name and address of the Paying Agent and Conversion Agent, and
(xi) if the notice relates to a Fundamental Change, the estimated amount of any Make-Whole Premium and the respective percentages of such Make-Whole Premium that will be paid (as contemplated by Section 6.1(b)) in shares of Common Stock and in cash (which indication shall be irrevocable), subject to the satisfaction (or waiver) of the conditions set forth in Section 6.1(c), in the event that a Holder should, in lieu of electing to have Securities repurchased on the Fundamental Change Repurchase Date, elect to convert such Securities during the Fundamental Change Conversion Period, and
(xii) any other information to be included therein pursuant to Section 6.1any. No failure of the Company to give the foregoing notices or defect therein shall limit any Holder's right to exercise a repurchase right Repurchase Right or affect the validity of the proceedings for the repurchase of Securities. If any of the foregoing provisions or other provisions of this Article III 11 are inconsistent with applicable law, such law shall govern.
(b) To exercise a repurchase right pursuant to Section 3.1 or Section 3.2its Repurchase Right, a Holder shall deliver to the Paying Agent Trustee prior to or on the 30th day after the date of the Company Notice:
(i1) written notice (in the case of a repurchase pursuant to Section 3.1, a "Repurchase Notice" and, in the case of a repurchase pursuant to Section 3.2, a "Fundamental Change Repurchase Notice") of the Holder's exercise of such right, which notice shall set forth the name of the Holder, the principal amount of the Securities to be repurchased (and, if any Security is to be repurchased in part, the serial number thereof, the portion of the principal amount thereof to be repurchased (which portion must be in principal amounts of $1,000 or a whole multiple of $1,000repurchased) and the name of the Person in which the portion thereof to remain outstanding after such repurchase is to be registered), if certificated, the certificate numbers of the Securities to be repurchased, and a statement that an election to exercise the repurchase right pursuant to the terms and conditions specified in the Securities and the Indenture Repurchase Right is being made thereby, and, in the event that any portion of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, shall be paid in shares of Common Stock, the name or names (with addresses) in which the certificate or certificates for shares of Common Stock shall be issued, and ; and
(ii2) the Securities with respect to which the Repurchase Notice or Fundamental Change Repurchase Notice relates at any time after delivery Right is being exercised. Such written notice shall be irrevocable, except that the right of the Repurchase Notice or Holder to convert the Fundamental Change Repurchase Notice, as the case may be (together Securities with all necessary endorsements), at the offices of the Paying Agent, such delivery being a condition respect to receipt by the Holder of which the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, thereof; provided, however, that such Repurchase Price or Fundamental Change Repurchase Price, as the case may be, Right is being exercised shall be so paid pursuant to this Section 3.4(b) only if the Securities so delivered to the Paying Agent shall conform in all respects to the description thereof in the related Repurchase Notice or Fundamental Change Repurchase Notice. In the case of a repurchase right pursuant to Section 3.1 and Section 3.2, such delivery shall be at any time from the opening of business on the date that is 20 Business Days prior to the Repurchase Date continue until the close of business on the second Business Day prior immediately preceding the Repurchase Date.
(c) In the event a Repurchase Right shall be exercised in accordance with the terms hereof, the Company shall pay or cause to be paid to the Trustee the Repurchase Price in cash or shares of Common Stock, as provided above, for payment to the Holder on the Repurchase Date or, if shares of Common Stock are to be paid, as promptly after the Repurchase Date as practicable, together with accrued and unpaid interest to, but excluding, the Repurchase Date payable in cash with respect to the Securities as to which the Repurchase Right has been exercised; provided, however, that installments of interest that mature prior to or on the Fundamental Change Repurchase Date shall be payable in cash to the Holders of such Securities, or one or more Predecessor Securities, registered as such at the close of business on the relevant Regular Record Date.
(d) If any Security (or portion thereof) surrendered for repurchase shall not be so paid on the Repurchase Date, the principal amount of such Security (or portion thereof, as the case may be) shall, subject until paid, bear interest to extension the extent permitted by applicable law from the Repurchase Date at the Interest Rate, and each Security shall remain convertible into Common Stock until the principal of such Security (or portion thereof, as the case may be) shall have been paid or duly provided for.
(e) Any Security which is to comply with applicable lawbe repurchased only in part shall be surrendered to the Trustee (with, if the Company or the Trustee so requires, due endorsement by, or a written instrument of transfer in form satisfactory to the Company and the Trustee duly executed by the Holder thereof or his attorney duly authorized in writing), and the Company shall execute, and the Trustee shall authenticate and make available for delivery to the Holder of such Security without service charge, a new Security or Securities, containing identical terms and conditions, each in an authorized denomination in aggregate principal amount equal to and in exchange for the unrepurchased portion of the principal of the Security so surrendered.
(f) Any issuance of shares of Common Stock in respect of the Repurchase Price shall be deemed to have been effected immediately prior to the close of business on the Repurchase Date and the Person or Persons in whose name or names any stock certificate or stock certificates representing shares of Common Stock shall be issuable upon such repurchase shall be deemed to have become on the Repurchase Date the holder or holders of record of the shares represented thereby; provided, however, that any surrender for repurchase on a date when the stock transfer books of the Company shall be closed shall constitute the Person or Persons in whose name or names the stock certificate or stock certificates representing such shares are to be issued as the holder or holders of record of the shares represented thereby for all purposes at the opening of business on the next succeeding day on which such stock transfer books are open. Owners No payment or adjustment shall be made for dividends or distributions on any Common Stock issued upon repurchase of beneficial interests any Security declared prior to the Repurchase Date.
(g) No fractions of shares of Common Stock shall be issued upon repurchase of any Security or Securities. If more than one Security shall be repurchased from the same Holder and the Repurchase Price shall be payable in Global shares of Common Stock, the number of full shares which shall be issued upon such repurchase shall be computed on the basis of the aggregate principal amount of the Securities (or specified portions thereof) to be so repurchased. Instead of any fractional share of Common Stock which would otherwise be issued on the repurchase of any Security or Securities (or specified portions thereof), the Company shall pay a cash adjustment in respect of such fraction (calculated to the nearest one-100th of a share) in an amount equal to the same fraction of the Trading Price of the Common Stock as of the Trading Day preceding the Repurchase Date.
(h) Any issuance and delivery of stock certificates representing shares of Common Stock on repurchase of Securities shall provide a Repurchase Notice be made without charge to the Holder of Securities being repurchased for such stock certificates or Fundamental Change Repurchase Notice for any tax or duty in accordance with the Applicable Procedures respect of the Depositaryissuance or delivery of such stock certificates or the Securities represented thereby; provided, however, that the Company shall not be required to pay any tax or duty which may be payable in respect of (i) income of the Holder or (ii) any transfer involved in the issuance or delivery of stock certificates representing shares of Common Stock in a name other than that of the Holder of the Securities being repurchased, and no such issuance or delivery shall be made unless the Person requesting such issuance or delivery has paid to the Company the amount of any such tax or duty or has established, to the satisfaction of the Company, that such tax or duty has been paid.
(i) All Securities delivered for repurchase shall be delivered to the Trustee to be canceled at the direction of the Trustee, which shall dispose of the same as provided in Section 2.15.
Appears in 1 contract
Samples: Indenture (Curagen Corp)
Notices; Method of Exercising Repurchase Right, Etc. (a) Reserved.
(b) Unless the Company shall have theretofore called for redemption all of the outstanding SecuritiesNotes, on or before the fifteenth (15th) calendar day after the occurrence of a Repurchase Event, the Company shall give to or, at the written request of the Company, the Trustee, shall mail to all holders of record of the Paying Agent and all Holders of Securities, in the manner provided in this Section 3.4, Notes a notice containing the information required pursuant to the following provisions of this Section 3.4(a) (the "Company Notice") (i) on or before the 20th Business Day prior to the Repurchase Date or, in the event of a Fundamental Change arising from a Change of Control, the anticipated Effective Date (but in no event earlier than 45 days prior to the Repurchase Date or anticipated Effective Date, form as the case may be), and (ii) within 15 Business Days after prepared by the Company knows or reasonably should know of the occurrence of a Fundamental Change that arises the Repurchase Event and of the repurchase right set forth herein arising as a result of any Termination of Trading. Prior to or concurrently with the delivery of any Company Notice, the Company will issue a press release or publish such information on the Company's then existing website including the information required to be included in such Company Notice hereunderthereof. The Company shall also deliver a copy of any such Company Notice to the Trustee. At the request Trustee and expense cause a copy of such Company Notice, or a summary of the Company on or before the fifth Business Day prior to the date on which the Company Notice is information contained therein, to be mailed, the Trustee shall provide the Company Notice to the Holders published once in accordance with the provisions a newspaper of this Indenturegeneral circulation in The City of New York. Each The Company Notice shall statecontain the following information:
(i1) a description of the Repurchase Event that occurred;
(2) the Repurchase Date or the Fundamental Change Event Repurchase Date, as the case may be,;
(ii3) the date by which the repurchase right must be exercised,;
(iii4) the last date by which the election to require repurchase, if submitted, must be revoked;
(5) the Repurchase Event Price or the Fundamental Change Repurchase Price, as the case may be, and whether the Repurchase Event Price or the Fundamental Change Repurchase Price, as the case may be, shall be paid by the Company payable in cash or by delivery of shares of Common Stock and, if payable in Common Stock, or a specified combination thereof and the percentage method of calculating the amount of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, that will be paid in shares of Common Stock (which indication shall to be irrevocable, subject to delivered upon the satisfaction (or waiver) of the conditions set forth repurchase as provided in Section 3.316.3(a),;
(iv) if the notice relates to the occurrence of a Fundamental Change, the events causing the Fundamental Change and the date of the Fundamental Change,
(v) that Securities with respect to which a Holder gives a Repurchase Notice or Fundamental Change Repurchase Notice may be converted only if the Holder withdraws the Repurchase Notice or Fundamental Change Repurchase Notice as to such Securities in accordance with the terms of this Indenture,
(vi6) a description of the procedure that which a Holder holder must follow to exercise a repurchase right, and the place or places where such Securities are to be surrendered for payment of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, and accrued but unpaid interest (and Liquidated Damages), if any, to, but excluding, the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be,;
(vii) that on the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be, the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, and accrued but unpaid interest (and Liquidated Damages), if any, to, but excluding, the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be, will become due and payable upon each such Security designated by the Holder to be repurchased, and that interest thereon shall cease to accrue on and after said date,
(viii7) the Conversion Price then in effect,
(ix) , the date on which the right to convert the principal amount of the Notes to be repurchased will terminate and the place or places that the Security certificate (including the Election of Holder to Require Repurchase attached thereto) and the Repurchase Notice (as defined below) shall where Notes may be delivered, and, if the Security is a Restricted Security, the place or places that the Transfer Certificate in the form set forth in Exhibit C, required by Section 2.12 shall be delivered,
(x) the name and address of the Paying Agent and Conversion Agent, surrendered for conversion; and
(xi) if 8) the notice relates to a Fundamental Change, the estimated amount of any Make-Whole Premium and the respective percentages of such Make-Whole Premium that will be paid (as contemplated by Section 6.1(b)) in shares of Common Stock and in cash (which indication shall be irrevocable), subject to the satisfaction (or waiver) CUSIP numbers of the conditions set forth in Section 6.1(c), in the event that a Holder should, in lieu of electing to have Securities repurchased on the Fundamental Change Repurchase Date, elect to convert such Securities during the Fundamental Change Conversion Period, and
(xii) any other information to be included therein pursuant to Section 6.1Notes. No failure of the Company to give the foregoing notices or defect therein shall limit any Holderholder's right to exercise a repurchase right or affect the validity of the proceedings for the repurchase of SecuritiesNotes. If any of the foregoing provisions or other provisions of this Article III are inconsistent with applicable law, such law shall govern.
(bc) To exercise a repurchase right pursuant to Section 3.1 or Section 3.2right, a Holder holder shall deliver to the Paying Agent Trustee on or before the thirty-fifth (35th) day after the Company Notice was delivered (i) written notice to the Company (in or agent designated by the case of a repurchase pursuant to Section 3.1, a "Repurchase Notice" and, in the case of a repurchase pursuant to Section 3.2, a "Fundamental Change Repurchase Notice"Company for such purpose) of the Holderholder's exercise of such right, which notice shall set forth the name of the Holderholder, the principal amount of the Securities to be repurchased (and, if any Security is to repurchased in part, the portion of the principal amount thereof to be repurchased (which portion must be in principal amounts of $1,000 or a whole multiple of $1,000) and the name of the Person in which the portion thereof to remain outstanding after such repurchase is to be registered), if certificated, the certificate numbers of the Securities Notes to be repurchased, and a statement that an election to exercise the repurchase right pursuant to the terms and conditions specified in the Securities and the Indenture is being made thereby, and, in the event that any portion of the Repurchase Event Price or the Fundamental Change Repurchase Price, as the case may be, shall be paid in shares of Common Stock, the name or names (with addresses) in 77 which the certificate or certificates for shares of Common Stock shall be issued, and (ii) the Securities Notes with respect to which the Repurchase Notice or Fundamental Change Repurchase Notice relates repurchase right is being exercised, duly endorsed for transfer to the Company. Election of repurchase by a holder shall be revocable at any time after delivery prior to, but excluding, the Event Repurchase Date, by delivering written notice to that effect to the Trustee prior to the close of business on the Business Day prior to the Event Repurchase Date.
(d) If the Company fails to repurchase on the Event Repurchase Date any Notes (or portions thereof) as to which the repurchase right has been properly exercised, then the principal of such Notes shall, until paid, bear interest to the extent permitted by applicable law from the Event Repurchase Date at the rate borne by the Note and each such Note shall be convertible into Common Stock in accordance with this Indenture (without giving effect to Section 16.2(b)) until the principal of such Note shall have been paid or duly provided for.
(e) Any Note which is to be repurchased only in part shall be surrendered to the Trustee duly endorsed for transfer to the Company and accompanied by appropriate evidence of genuineness and authority satisfactory to the Company and the Trustee duly executed by, the holder thereof (or his attorney duly authorized in writing), and the Company shall execute, and the Trustee shall authenticate and deliver to the holder of such Note without service charge, a new Note or Notes, containing identical terms and conditions, of any authorized denomination as requested by such holder in aggregate principal amount equal to and in exchange for the unrepurchased portion of the Repurchase Notice or the Fundamental Change Repurchase Notice, as the case may be (together with all necessary endorsements), at the offices principal of the Paying AgentNote so surrendered.
(f) On or prior to the Event Repurchase Date, the Company shall deposit with the Trustee or with a paying agent (or, if the Company is acting as its own paying agent, segregate and hold in trust as provided in Section 5.4) the Repurchase Event Price in cash for payment to the holder on the Event Repurchase Date; provided that if payment is to be made in cash, such delivery being a condition to receipt cash payment is made on the Event Repurchase Date it must be received by the Holder of the Repurchase Price Trustee or the Fundamental Change Repurchase Pricepaying agent, as the case may be, thereofby 10:00 a.m., New York City time, on such date; provided further that if the Repurchase Event Price is to be paid in shares of Common Stock, such shares of Common Stock are to be paid as promptly after the Event Repurchase Date as practicable.
(g) Any issuance of shares of Common Stock in respect of the Repurchase Event Price shall be deemed to have been effected immediately prior to the close of business on the Event Repurchase Date and the person or persons in whose name or names any certificate or certificates for shares of Common Stock shall be issuable upon such repurchase shall be deemed to have become on the Event Repurchase Date the holder or holders of record of the shares represented thereby; provided, however, that any surrender for repurchase on a date when the stock transfer books of the Company shall be closed shall constitute the person or persons in whose name or names the certificate or certificates for such Repurchase Price or Fundamental Change Repurchase Price, shares are to be issued as the case may be, shall be so paid pursuant to this Section 3.4(b) only if the Securities so delivered to the Paying Agent shall conform in record holder or holders thereof for all respects to the description thereof in the related Repurchase Notice or Fundamental Change Repurchase Notice. In the case of a repurchase right pursuant to Section 3.1 and Section 3.2, such delivery shall be purposes at any time from the opening of business on the date that is 20 Business Days next succeeding day on which such stock transfer books are open. No payment or adjustment shall be made for dividends or distributions on any Common Stock issued upon repurchase of any Note declared prior to the Event Repurchase Date Date.
(h) No fractions of shares shall be issued upon repurchase of Notes. If more than one Note shall be repurchased from the same holder and the Repurchase Event Price shall be payable in shares of Common Stock, the number of full shares which shall be issuable upon such repurchase shall be computed on the basis of the aggregate principal amount of the Notes so repurchased. Instead of any fractional share of Common Stock which would otherwise be issuable on the repurchase of any Note or Notes, the Company will deliver to the applicable holder its check for the current market value of such fractional share. The current market value of a fraction of a share is determined by multiplying the current market price of a full share by the fraction, and rounding the result to the nearest cent. For purposes of this Section, the current market price of a share of Common Stock is the Closing Price of the Common Stock on the Trading Day immediately preceding the Event Repurchase Date.
(i) Any issuance and delivery of certificates for shares of Common Stock on repurchase of Notes shall be made without charge to the holder of Notes being repurchased for such certificates or for any tax or duty in respect of the issuance or delivery of such certificates or the securities represented thereby; provided, however, that the Company shall not be required to pay any tax or duty which may be payable in respect of (i) income of the holder or (ii) any transfer involved in the issuance or delivery of certificates for shares of Common Stock in a name other than that of the holder of the Notes being repurchased, and no such issuance or delivery shall be made unless and until the close of business on the second Business Day prior person requesting such issuance or delivery has paid to the Repurchase Date Company the amount of any such tax or duty or has established, to the Fundamental Change Repurchase Datesatisfaction of the Company, as that such tax or duty has been paid.
(j) All Notes delivered for repurchase shall be delivered to the case may be, subject Trustee to extension to comply with applicable law. Owners of beneficial interests in Global Securities shall provide a Repurchase Notice or Fundamental Change Repurchase Notice be canceled in accordance with the Applicable Procedures provisions of the DepositarySection 2.8.
Appears in 1 contract
Samples: Indenture (Alkermes Inc)
Notices; Method of Exercising Repurchase Right, Etc. (a) Unless the Company shall have theretofore called for redemption all of the outstanding Outstanding Securities, prior to or on the 30th day after the occurrence of a Change of Control, the Company, or, at the written request and expense of the Company prior to or on the 30th day after such occurrence, the Trustee shall give to the Trustee, the Paying Agent and all Holders of SecuritiesSecurities notice, in the manner provided in this Section 3.414.2 hereof, of the occurrence of the Change of Control and of the Repurchase Right set forth herein arising as a notice containing the information required pursuant to the following provisions of this Section 3.4(a) result thereof (the "Company Notice") (i) on or before the 20th Business Day prior to the Repurchase Date or, in the event of a Fundamental Change arising from a Change of Control, the anticipated Effective Date (but in no event earlier than 45 days prior to the Repurchase Date or anticipated Effective Date, as the case may be), and (ii) within 15 Business Days after the Company knows or reasonably should know of the occurrence of a Fundamental Change that arises as a result of any Termination of Trading. Prior to or concurrently with the delivery of any Company Notice, the Company will issue a press release or publish such information on the Company's then existing website including the information required to be included in such Company Notice hereunder. The Company shall also deliver a copy of any Company Notice such notice of a Repurchase Right to the Trustee. At the request and expense Each notice of the Company on or before the fifth Business Day prior to the date on which the Company Notice is to be mailed, the Trustee shall provide the Company Notice to the Holders in accordance with the provisions of this Indenture. Each Company Notice a Repurchase Right shall state:
(i1) the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be,;
(ii2) the date by which the repurchase right Repurchase Right must be exercised,;
(iii3) the Repurchase Price or the Fundamental Change Repurchase Priceand accrued and unpaid interest, as the case may beif any, and whether the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, shall be paid by the Company in cash or by delivery of shares of Common Stock, or a specified combination thereof and the percentage of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, that will be paid in shares of Common Stock (which indication shall be irrevocable, subject to the satisfaction (or waiver) of the conditions set forth in Section 3.3),;
(iv) if the notice relates to the occurrence of a Fundamental Change, the events causing the Fundamental Change and the date of the Fundamental Change,
(v) that Securities with respect to which a Holder gives a Repurchase Notice or Fundamental Change Repurchase Notice may be converted only if the Holder withdraws the Repurchase Notice or Fundamental Change Repurchase Notice as to such Securities in accordance with the terms of this Indenture,
(vi4) a description of the procedure that which a Holder must follow to exercise a repurchase rightRepurchase Right, and the place or places where such Securities Securities, are to be surrendered for payment of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, and accrued but and unpaid interest (and Liquidated Damages)interest, if any, to, but excluding, the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be,;
(vii5) that on the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be, the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, and accrued but and unpaid interest (and Liquidated Damages)interest, if any, to, but excluding, the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be, will become due and payable upon each such Security designated by the Holder to be repurchased, and that interest thereon shall cease to accrue on and after said date,;
(viii6) the Conversion Price Rate then in effect,, the date on which the right to convert the principal amount of the Securities to be repurchased will terminate and the place where such Securities may be surrendered for conversion, and
(ix7) the place or places that where such Securities, together with the Security Option to Elect Repayment Upon a Change of Control certificate (including the Election included in Exhibit A annexed hereto are to be delivered for payment of Holder to Require Repurchase attached thereto) and the Repurchase Notice (as defined below) shall be delivered, andPrice and accrued and unpaid interest, if the Security is a Restricted Security, the place or places that the Transfer Certificate in the form set forth in Exhibit C, required by Section 2.12 shall be delivered,
(x) the name and address of the Paying Agent and Conversion Agent, and
(xi) if the notice relates to a Fundamental Change, the estimated amount of any Make-Whole Premium and the respective percentages of such Make-Whole Premium that will be paid (as contemplated by Section 6.1(b)) in shares of Common Stock and in cash (which indication shall be irrevocable), subject to the satisfaction (or waiver) of the conditions set forth in Section 6.1(c), in the event that a Holder should, in lieu of electing to have Securities repurchased on the Fundamental Change Repurchase Date, elect to convert such Securities during the Fundamental Change Conversion Period, and
(xii) any other information to be included therein pursuant to Section 6.1any. No failure of the Company to give the foregoing notices or defect therein shall limit any Holder's right to exercise a repurchase right Repurchase Right or affect the validity of the proceedings for the repurchase of Securities. If any of the foregoing provisions or other provisions of this Article III 11 are inconsistent with applicable law, such law shall govern.
(b) To exercise a repurchase right pursuant to Section 3.1 or Section 3.2Repurchase Right, a Holder shall deliver to the Paying Agent Trustee prior to or on the 30th day after the date of the Company Notice:
(i1) written notice (in the case of a repurchase pursuant to Section 3.1, a "Repurchase Notice" and, in the case of a repurchase pursuant to Section 3.2, a "Fundamental Change Repurchase Notice") of the Holder's exercise of such right, which notice shall set forth the name of the Holder, the principal amount of the Securities to be repurchased (and, if any Security is to be repurchased in part, the serial number thereof, the portion of the principal amount thereof to be repurchased (which portion must be in principal amounts of $1,000 or a whole multiple of $1,000repurchased) and the name of the Person in which the portion thereof to remain outstanding after such repurchase is to be registered), if certificated, the certificate numbers of the Securities to be repurchased, and a statement that an election to exercise the repurchase right pursuant to the terms and conditions specified in the Securities and the Indenture Repurchase Right is being made thereby, and, in the event that any portion of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, shall be paid in shares of Common Stock, the name or names (with addresses) in which the certificate or certificates for shares of Common Stock shall be issued, and and
(ii2) the Securities with respect to which the Repurchase Notice or Fundamental Change Repurchase Notice relates at any time after delivery Right is being exercised. Such written notice shall be irrevocable, except that the right of the Repurchase Notice or Holder to convert the Fundamental Change Repurchase Notice, as the case may be (together Securities with all necessary endorsements), at the offices of the Paying Agent, such delivery being a condition respect to receipt by the Holder of which the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, thereof; provided, however, that such Repurchase Price or Fundamental Change Repurchase Price, as the case may be, Right is being exercised shall be so paid pursuant to this Section 3.4(b) only if the Securities so delivered to the Paying Agent shall conform in all respects to the description thereof in the related Repurchase Notice or Fundamental Change Repurchase Notice. In the case of a repurchase right pursuant to Section 3.1 and Section 3.2, such delivery shall be at any time from the opening of business on the date that is 20 Business Days prior to the Repurchase Date continue until the close of business on the second Business Day prior immediately preceding the Repurchase Date.
(c) In the event a Repurchase Right shall be exercised in accordance with the terms hereof, the Company shall pay or cause to be paid to the Trustee the Repurchase Price in cash for payment to the Holder on the Repurchase Date or, if shares of Common Stock are to be paid, shares of Common Stock, as provided above, as promptly after the Repurchase Date as practicable, together with accrued and unpaid interest to the Repurchase Date payable in cash with respect to the Securities as to which the Repurchase Right has been exercised; provided, however, that installments of interest that mature prior to or on the Fundamental Change Repurchase Date shall be payable in cash to the Holders of such Securities, or one or more Predecessor Securities, registered as such at the close of business on the relevant Regular Record Date.
(d) If any Security (or portion thereof) surrendered for repurchase shall not be so paid on the Repurchase Date, the principal amount of such Security (or portion thereof, as the case may be) shall, subject until paid, bear interest to extension the extent permitted by applicable law from the Xxxxxxxxxx Date at the Interest Rate, and each Security shall remain convertible into Common Stock until the principal of such Security (or portion thereof, as the case may be) shall have been paid or duly provided for.
(e) Any Security which is to comply with applicable lawbe repurchased only in part shall be surrendered to the Trustee (with, if the Company or the Trustee so requires, due endorsement by, or a written instrument of transfer in form satisfactory to the Company and the Trustee duly executed by the Holder thereof or his attorney duly authorized in writing), and the Company shall execute, and the Trustee shall authenticate and make available for delivery to the Holder of such Security without service charge, a new Security or Securities, containing identical terms and conditions, each in an authorized denomination in aggregate principal amount equal to and in exchange for the unrepurchased portion of the principal of the Security so surrendered.
(f) Any issuance of shares of Common Stock in respect of the Repurchase Price shall be deemed to have been effected immediately prior to the close of business on the Repurchase Date and the Person or Persons in whose name or names any certificate or certificates for shares of Common Stock shall be issuable upon such repurchase shall be deemed to have become on the Repurchase Date the holder or holders of record of the shares represented thereby; provided, however, that any surrender for repurchase on a date when the stock transfer books of the Company shall be closed shall constitute the Person or Persons in whose name or names the certificate or certificates for such shares are to be issued as the record holder or holders thereof for all purposes at the opening of business on the next succeeding day on which such stock transfer books are open. Owners No payment or adjustment shall be made for dividends or distributions on any Common Stock issued upon repurchase of beneficial interests any Security declared prior to the Repurchase Date.
(g) No fractions of shares of Common Stock shall be issued upon repurchase of any Security or Securities. If more than one Security shall be repurchased from the same Holder and the Repurchase Price shall be payable in Global shares of Common Stock, the number of full shares which shall be issued upon such repurchase shall be computed on the basis of the aggregate principal amount of the Securities (or specified portions thereof) to be so repurchased. Instead of any fractional share of Common Stock which would otherwise be issued on the repurchase of any Security or Securities (or specified portions thereof), the Company shall pay a cash adjustment in respect of such fraction (calculated to the nearest one-100th of a share) in an amount equal to the same fraction of the Quoted Price of the Common Stock as of the Trading Day preceding the Repurchase Date.
(h) Any issuance and delivery of certificates for shares of Common Stock on repurchase of Securities shall provide a Repurchase Notice be made without charge to the Holder of Securities being repurchased for such certificates or Fundamental Change Repurchase Notice for any tax or duty in accordance with the Applicable Procedures respect of the Depositaryissuance or delivery of such certificates or the Securities represented thereby; provided, however, that the Company shall not be required to pay any tax or duty which may be payable in respect of (i) income of the Holder or (ii) any transfer involved in the issuance or delivery of certificates for shares of Common Stock in a name other than that of the Holder of the Securities being repurchased, and no such issuance or delivery shall be made unless the Persons requesting such issuance or delivery has paid to the Company the amount of any such tax or duty or has established, to the satisfaction of the Company, that such tax or duty has been paid.
(i) All Securities delivered for repurchase shall be delivered to the Trustee to be canceled at the direction of the Trustee, which shall dispose of the same as provided in Section 2.15 hereof.
Appears in 1 contract
Notices; Method of Exercising Repurchase Right, Etc. (a) Unless the Company shall have theretofore called for redemption all of the outstanding Securities, on or before the 25th day after the occurrence of a Change in Control, the Company shall give to or, at the written request of the Company, on or before the tenth (10th) day after receipt of such request, the Trustee, at the Paying Agent and Company's expense, shall give notice to all Holders of Securities, in the manner provided in this Section 3.4, a notice containing the information required pursuant to the following provisions of this Section 3.4(a) Securities (the "Company Notice") (i) on or before the 20th Business Day prior to the Repurchase Date or, in the event of a Fundamental Change arising from a Change of Control, the anticipated Effective Date (but in no event earlier than 45 days prior to the Repurchase Date or anticipated Effective Date, as the case may be), and (ii) within 15 Business Days after the Company knows or reasonably should know of the occurrence of a Fundamental the Change that arises in Control and of the repurchase right set forth herein arising as a result thereof. If the Company gives such notice of any Termination of Trading. Prior to or concurrently with the delivery of any Company Noticea repurchase right, the Company will issue a press release or publish such information on the Company's then existing website including the information required to be included in such Company Notice hereunder. The Company shall also deliver a copy of any Company Notice such notice of a repurchase right to the Trustee. At the request and expense of the Company on or before the fifth Business Day prior to the date on which the Company Notice is to be mailed, the Trustee shall provide the Company Notice to the Holders in accordance with the provisions of this Indenture. Each Company Notice shall state:
(i1) the Repurchase Date or date of such Change in Control and, briefly, the Fundamental events causing such Change Repurchase Date, as the case may be,in Control; 104
(ii2) the date by which the repurchase right Change in Control Purchase Notice (as defined below) must be exercised,delivered;
(iii3) the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, and whether the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, shall be paid by the Company in cash or by delivery of shares of Common Stock, or a specified combination thereof and the percentage of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, that will be paid in shares of Common Stock (which indication shall be irrevocable, subject to the satisfaction (or waiver) of the conditions set forth in Section 3.3),Control Purchase Date;
(iv4) if the notice relates to the occurrence of a Fundamental Change, the events causing the Fundamental Change and the date of the Fundamental Change,in Control Purchase Price;
(v5) that Securities with respect to which a Holder gives a Repurchase Notice or Fundamental Change Repurchase Notice may be converted only if the Holder withdraws the Repurchase Notice or Fundamental Change Repurchase Notice as to such Securities in accordance with the terms of this Indenture,
(vi) a description of the procedure that a Holder must follow to exercise a repurchase right, and the place or places where such Securities are to be surrendered for payment of the Repurchase Change in Control Purchase Price or the Fundamental Change Repurchase Price, as the case may be, and accrued but unpaid interest (and Liquidated Damages)interest, if any, to, but excluding, the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be,;
(vii) that on the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be, the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, and accrued but unpaid interest (and Liquidated Damages), if any, to, but excluding, the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be, will become due and payable upon each such Security designated by the Holder to be repurchased, and that interest thereon shall cease to accrue on and after said date,
(viii6) the Conversion Price then in effect,and any adjustments thereto, the date on which the right to convert the Securities will terminate and the places where such Securities may be surrendered for conversion;
(ix7) a description of the place or places procedure which a Holder must follow to exercise a repurchase right;
(8) the procedures for withdrawing a Change in Control Purchase Notice;
(9) that Holders who want to convert Securities must satisfy the Security certificate (including the Election of Holder to Require Repurchase attached thereto) and the Repurchase Notice (as defined below) shall be delivered, and, if the Security is a Restricted Security, the place or places that the Transfer Certificate in the form requirements set forth in Exhibit C, required by Section 2.12 shall be delivered,
(x) the name and address of the Paying Agent and Conversion Agent, Securities; and
(xi10) if the notice relates to a Fundamental Changebriefly, the estimated amount conversion rights of any Make-Whole Premium and the respective percentages Holders of such Make-Whole Premium that will be paid (as contemplated by Section 6.1(b)) in shares of Common Stock and in cash (which indication shall be irrevocable), subject to the satisfaction (or waiver) of the conditions set forth in Section 6.1(c), in the event that a Holder should, in lieu of electing to have Securities repurchased on the Fundamental Change Repurchase Date, elect to convert such Securities during the Fundamental Change Conversion Period, and
(xii) any other information to be included therein pursuant to Section 6.1Securities. No failure of the Company to give the foregoing notices notice or defect therein shall limit any Holder's right to exercise a repurchase right or affect the validity of the proceedings for the repurchase of Securities. If any of the foregoing provisions or other provisions of this Article III are inconsistent with applicable law, such law shall govern.
(b) To exercise a repurchase right pursuant to Section 3.1 or Section 3.2right, a Holder shall deliver to the Paying Agent (i) or an office or agency maintained by the Company for such purpose in the Borough of Manhattan, The City of New York, prior to the close of business on or before the Change in Control Purchase Date written notice (in the case of a repurchase pursuant to Section 3.1, a "Repurchase Notice" and, in the case of a repurchase pursuant to Section 3.2, a "Fundamental Change Repurchase Notice") of the Holder's exercise of such rightright (the "Change in Control Purchase Notice"), which notice shall set forth (i) the name of the Holder, (ii) the certificate numbers of the Securities with respect to which the repurchase right is being exercised, (iii) the principal amount of the Securities to be repurchased (and, if any Security is to be repurchased in part, the portion of the principal amount thereof to be repurchased (which portion must be in principal amounts of $1,000 or a whole multiple of $1,000) and the name of the Person in which the portion thereof to remain outstanding after such repurchase is to be 105 registered), if certificated, the certificate numbers of the Securities to be repurchased, ) and (iv) a statement that an election to exercise the repurchase right is being made thereby pursuant to the applicable provisions of the Securities.
(c) In the event a repurchase right shall be exercised in accordance with the terms and conditions specified hereof, the Company shall pay or cause to be paid to the Paying Agent the Change in Control Purchase Price in cash, for payment to the Holder on the Change in Control Purchase Date, payable with respect to the Securities and the Indenture is being made thereby, and, in the event that any (or portion of the Repurchase Price or the Fundamental Change Repurchase Price, thereof) as the case may be, shall be paid in shares of Common Stock, the name or names (with addresses) in which the certificate or certificates for shares of Common Stock shall be issued, and (ii) the Securities to which the Repurchase Notice or Fundamental Change Repurchase Notice relates at any time after delivery of the Repurchase Notice or the Fundamental Change Repurchase Notice, as the case may be (together with all necessary endorsements), at the offices of the Paying Agent, such delivery being a condition to receipt by the Holder of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, thereofrepurchase right has been exercised; provided, however, that such Repurchase Security for which a repurchase right has been exercised has been delivered to the Paying Agent (together with all necessary endorsements) at any time after the notice of exercise of a repurchase right shall have been given. Payment of the Change in Control Purchase Price for such Security shall be made promptly following the later of the Business Day following the Change in Control Purchase Date and time of delivery of the Security. If the Paying Agent holds money sufficient to pay the Change in Control Purchase Price on the Business Day following the Change in Control Purchase Date, then, immediately after the Change in Control Purchase Date, such Security shall cease to be outstanding and interest will cease to accrue and will be deemed paid regardless of whether such Security has been delivered to the Paying Agent, and all other rights of the Holder shall terminate (other than the right of such Holder to receive the Change in Control Purchase Price upon delivery of such Security). Securities in respect of which a Change in Control Purchase Notice has been given by the Holder thereof may not be converted into shares of Common Stock on or Fundamental after the date of the delivery of such Change Repurchase Pricein Control Purchase Notice, unless such Change in Control Purchase Notice has first been validly withdrawn as specified in Section 14.2(g).
(d) On or prior to the Change in Control Purchase Date, the Company shall deposit with the Trustee or with a Paying Agent (or, if the Company is acting as its own Paying Agent, segregate and hold in trust as provided in Section 6.6 hereof) an amount of money sufficient to pay the Change in Control Purchase Price of the Securities which are to be repaid on the Change in Control Purchase Date.
(e) If any Security (or portion thereof) surrendered for repurchase shall not be so paid on the Business Day following the Change in Control Purchase Date, the principal amount of such Security (or portion thereof, as the case may be) shall, until paid, bear interest from the Change in Control Purchase Date at the rate of 4% per annum, and each Security shall remain convertible into Common Stock in accordance with Article XIII herein until the principal of such Security (or portion thereof, as the case may be) shall have been paid or duly provided for.
(f) Any Security which is to be repurchased only in part shall be so paid pursuant surrendered to this Section 3.4(b) only the Trustee (with, if the Securities Company or the Trustee so requires, due endorsement by, or a written instrument of transfer in form satisfactory to the Company and the Trustee duly executed by, the Holder thereof or his attorney duly authorized in writing), and the Company shall execute, and the Trustee shall authenticate and deliver to the Holder of such Security without service charge, a new Security or Securities, containing identical terms and conditions, each in an authorized denomination in aggregate principal amount equal to and in exchange for the portion of the principal of the Security so surrendered that was not repurchased.
(g) Any Holder that has delivered to the Paying Agent Trustee a Change in Control Purchase Notice shall conform in all respects have the right to the description thereof in the related Repurchase Notice or Fundamental Change Repurchase Notice. In the case of a repurchase right pursuant to Section 3.1 and Section 3.2, withdraw such delivery shall be notice at any time from the opening of business on the date that is 20 Business Days prior to the Repurchase Date until the close of business on the second Business Day Change in Control Purchase Date by delivery of a written notice of withdrawal to the Paying Agent prior to the Repurchase Date or close of business on such date. The notice of withdrawal shall state the Fundamental Change Repurchase Dateprincipal amount and the certificate numbers of the Securities as to which the withdrawal notice relates and the principal amount, as the case may beif any, which remains subject to extension the notice of exercise of a repurchase right. A Security in respect of which a Holder has exercised its option to comply with applicable law. Owners of beneficial interests require repurchase upon a Change in Global Securities shall provide a Repurchase Notice or Fundamental Change Repurchase Notice Control may thereafter be converted into Common Stock only if such Holder withdraws its notice in accordance with the Applicable Procedures preceding sentence.
(h) There shall be no purchase of any Securities pursuant to Section 14.1 if there has occurred (or on or after the giving, by the Holders of such Securities, of the Depositaryrequired Change in Control Purchase Notice) and is continuing an Event of Default (other than a default in the payment of the Change in Control Purchase Price with respect to such Securities). The Paying Agent will promptly return to the respective Holders thereof any Securities (x) with respect to which a Change in Control Purchase Notice has been withdrawn in compliance with this Indenture, or (y) held by it during the continuance of an Event of Default (other than a default in the payment of the Change in Control Purchase Price with respect to such Securities) in which case, upon such return, the Change in Control Purchase Notice with respect thereto shall be deemed to have been withdrawn.
Appears in 1 contract
Samples: Indenture (Commscope Inc)
Notices; Method of Exercising Repurchase Right, Etc. (a) Unless the Company shall have theretofore called for redemption all of the outstanding Outstanding Securities, prior to or on the 30th day after the occurrence of a Change in Control, the Company, or, at the written request and expense of the Company prior to or on the 30th day after such occurrence, the Trustee shall give to the Trustee, the Paying Agent and all Holders of SecuritiesSecurities notice, in the manner provided in this Section 3.414.2 hereof, a notice containing the information required pursuant to the following provisions of this Section 3.4(a) (the "Company Notice") (i) on or before the 20th Business Day prior to the Repurchase Date or, in the event of a Fundamental Change arising from a Change of Control, the anticipated Effective Date (but in no event earlier than 45 days prior to the Repurchase Date or anticipated Effective Date, as the case may be), and (ii) within 15 Business Days after the Company knows or reasonably should know of the occurrence of a Fundamental the Change that arises of Control and of the Repurchase Right set forth herein arising as a result of any Termination of Trading. Prior to or concurrently with thereof (the delivery of any “Company Notice, the Company will issue a press release or publish such information on the Company's then existing website including the information required to be included in such Company Notice hereunder”). The Company shall also deliver a copy of any Company Notice such notice of a Repurchase Right to the Trustee. At the request and expense Each notice of the Company on or before the fifth Business Day prior to the date on which the Company Notice is to be mailed, the Trustee shall provide the Company Notice to the Holders in accordance with the provisions of this Indenture. Each Company Notice a Repurchase Right shall state:
(i1) the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be,;
(ii2) the date by which the repurchase right Repurchase Right must be exercised,;
(iii3) the Repurchase Price or the Fundamental Change Repurchase Priceand accrued and unpaid interest, as the case may beif any, and whether the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, shall be paid by the Company in cash or by delivery of shares of Common Stock, or a specified combination thereof and the percentage of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, that will be paid in shares of Common Stock (which indication shall be irrevocable, subject to the satisfaction (or waiver) of the conditions set forth in Section 3.3),;
(iv) if the notice relates to the occurrence of a Fundamental Change, the events causing the Fundamental Change and the date of the Fundamental Change,
(v) that Securities with respect to which a Holder gives a Repurchase Notice or Fundamental Change Repurchase Notice may be converted only if the Holder withdraws the Repurchase Notice or Fundamental Change Repurchase Notice as to such Securities in accordance with the terms of this Indenture,
(vi4) a description of the procedure that which a Holder must follow to exercise a repurchase rightRepurchase Right, and the place or places where such Securities Securities, are to be surrendered for payment of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, and accrued but and unpaid interest (and Liquidated Damages)interest, if any, to, but excluding, the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be,;
(vii5) that on the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be, the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, and accrued but and unpaid interest (and Liquidated Damages)interest, if any, to, but excluding, the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be, will become due and payable upon each such Security designated by the Holder to be repurchased, and that interest thereon shall cease to accrue on and after said date,;
(viii6) the Conversion Price conversion rate then in effect,, the date on which the right to convert the principal amount of the Securities to be repurchased will terminate and the place where such Securities may be surrendered for conversion, and
(ix7) the place or places that where such Securities, together with the Security Option to Elect Repayment Upon a Change of Control certificate (including the Election included in Exhibit A annexed hereto are to be delivered for payment of Holder to Require Repurchase attached thereto) and the Repurchase Notice (as defined below) shall be delivered, andPrice and accrued and unpaid interest, if the Security is a Restricted Security, the place or places that the Transfer Certificate in the form set forth in Exhibit C, required by Section 2.12 shall be delivered,
(x) the name and address of the Paying Agent and Conversion Agent, and
(xi) if the notice relates to a Fundamental Change, the estimated amount of any Make-Whole Premium and the respective percentages of such Make-Whole Premium that will be paid (as contemplated by Section 6.1(b)) in shares of Common Stock and in cash (which indication shall be irrevocable), subject to the satisfaction (or waiver) of the conditions set forth in Section 6.1(c), in the event that a Holder should, in lieu of electing to have Securities repurchased on the Fundamental Change Repurchase Date, elect to convert such Securities during the Fundamental Change Conversion Period, and
(xii) any other information to be included therein pursuant to Section 6.1any. No failure of the Company to give the foregoing notices or defect therein shall limit any Holder's ’s right to exercise a repurchase right Repurchase Right or affect the validity of the proceedings for the repurchase of Securities. If any of the foregoing provisions or other provisions of this Article III 11 are inconsistent with applicable law, such law shall govern.
(b) To exercise a repurchase right pursuant to Section 3.1 or Section 3.2Repurchase Right, a Holder shall deliver to the Paying Agent Trustee prior to or on the 30th day after the date of the Company Notice:
(i1) written notice (in the case of a repurchase pursuant to Section 3.1, a "Repurchase Notice" and, in the case of a repurchase pursuant to Section 3.2, a "Fundamental Change Repurchase Notice") of the Holder's ’s exercise of such right, which notice shall set forth the name of the Holder, the principal amount of the Securities to be repurchased (and, if any Security is to be repurchased in part, the serial number thereof, the portion of the principal amount thereof to be repurchased (which portion must be in principal amounts of $1,000 or a whole multiple of $1,000repurchased) and the name of the Person in which the portion thereof to remain outstanding after such repurchase is to be registered), if certificated, the certificate numbers of the Securities to be repurchased, and a statement that an election to exercise the repurchase right pursuant to the terms and conditions specified in the Securities and the Indenture Repurchase Right is being made thereby, and, in the event that any portion of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, shall be paid in shares of Common Stock, the name or names (with addresses) in which the certificate or certificates for shares of Common Stock shall be issued, and and
(ii2) the Securities with respect to which the Repurchase Notice or Fundamental Change Repurchase Notice relates at any time after delivery Right is being exercised. Such written notice shall be irrevocable, except that the right of the Repurchase Notice or Holder to convert the Fundamental Change Repurchase Notice, as the case may be (together Securities with all necessary endorsements), at the offices of the Paying Agent, such delivery being a condition respect to receipt by the Holder of which the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, thereof; provided, however, that such Repurchase Price or Fundamental Change Repurchase Price, as the case may be, Right is being exercised shall be so paid pursuant to this Section 3.4(b) only if the Securities so delivered to the Paying Agent shall conform in all respects to the description thereof in the related Repurchase Notice or Fundamental Change Repurchase Notice. In the case of a repurchase right pursuant to Section 3.1 and Section 3.2, such delivery shall be at any time from the opening of business on the date that is 20 Business Days prior to the Repurchase Date continue until the close of business on the second Business Day prior immediately preceding the Repurchase Date.
(c) In the event a Repurchase Right shall be exercised in accordance with the terms hereof, the Company shall pay or cause to be paid to the Trustee the Repurchase Price in cash for payment to the Holder on the Repurchase Date or, if shares of Common Stock are to be paid, shares of Common Stock, as provided above, as promptly after the Repurchase Date as practicable, together with accrued and unpaid interest to the Repurchase Date payable in cash with respect to the Securities as to which the Repurchase Right has been exercised; provided, however, that installments of interest that mature prior to or on the Fundamental Change Repurchase Date shall be payable in cash to the Holders of such Securities, or one or more Predecessor Securities, registered as such at the close of business on the relevant Regular Record Date.
(d) If any Security (or portion thereof) surrendered for repurchase shall not be so paid on the Repurchase Date, the principal amount of such Security (or portion thereof, as the case may be) shall, subject until paid, bear interest to extension the extent permitted by applicable law from the Repurchase Date at the Interest Rate, and each Security shall remain convertible into Common Stock until the principal of such Security (or portion thereof, as the case may be) shall have been paid or duly provided for.
(e) Any Security which is to comply with applicable lawbe repurchased only in part shall be surrendered to the Trustee (with, if the Company or the Trustee so requires, due endorsement by, or a written instrument of transfer in form satisfactory to the Company and the Trustee duly executed by the Holder thereof or his attorney duly authorized in writing), and the Company shall execute, and the Trustee shall authenticate and make available for delivery to the Holder of such Security without service charge, a new Security or Securities, containing identical terms and conditions, each in an authorized denomination in aggregate principal amount equal to and in exchange for the unrepurchased portion of the principal of the Security so surrendered.
(f) Any issuance of shares of Common Stock in respect of the Repurchase Price shall be deemed to have been effected immediately prior to the close of business on the Repurchase Date and the Person or Persons in whose name or names any certificate or certificates for shares of Common Stock shall be issuable upon such repurchase shall be deemed to have become on the Repurchase Date the holder or holders of record of the shares represented thereby; provided, however, that any surrender for repurchase on a date when the stock transfer books of the Company shall be closed shall constitute the Person or Persons in whose name or names the certificate or certificates for such shares are to be issued as the record holder or holders thereof for all purposes at the opening of business on the next succeeding day on which such stock transfer books are open. Owners No payment or adjustment shall be made for dividends or distributions on any Common Stock issued upon repurchase of beneficial interests any Security declared prior to the Repurchase Date.
(g) No fractions of shares of Common Stock shall be issued upon repurchase of any Security or Securities. If more than one Security shall be repurchased from the same Holder and the Repurchase Price shall be payable in Global shares of Common Stock, the number of full shares which shall be issued upon such repurchase shall be computed on the basis of the aggregate principal amount of the Securities (or specified portions thereof) to be so repurchased. Instead of any fractional share of Common Stock which would otherwise be issued on the repurchase of any Security or Securities (or specified portions thereof), the Company shall pay a cash adjustment in respect of such fraction (calculated to the nearest one-100th of a share) in an amount equal to the same fraction of the Quoted Price of the Common Stock as of the Trading Day preceding the Repurchase Date.
(h) Any issuance and delivery of certificates for shares of Common Stock on repurchase of Securities shall provide a Repurchase Notice be made without charge to the Holder of Securities being repurchased for such certificates or Fundamental Change Repurchase Notice for any tax or duty in accordance with the Applicable Procedures respect of the Depositaryissuance or delivery of such certificates or the Securities represented thereby; provided, however, that the Company shall not be required to pay any tax or duty which may be payable in respect of (i) income of the Holder or (ii) any transfer involved in the issuance or delivery of certificates for shares of Common Stock in a name other than that of the Holder of the Securities being repurchased, and no such issuance or delivery shall be made unless the Persons requesting such issuance or delivery has paid to the Company the amount of any such tax or duty or has established, to the satisfaction of the Company, that such tax or duty has been paid.
(i) All Securities delivered for repurchase shall be delivered to the Trustee to be canceled at the direction of the Trustee, which shall dispose of the same as provided in Section 2.15 hereof.
Appears in 1 contract
Samples: Indenture (Cv Therapeutics Inc)
Notices; Method of Exercising Repurchase Right, Etc. (a1) Unless the Company shall have theretofore called for redemption all of the outstanding Outstanding Securities, the Company shall give to the Trustee, the Paying Agent and all Holders of Securities, in the manner provided in this Section 3.4, a notice containing the information required pursuant to the following provisions of this Section 3.4(a) (the "Company Notice") (i) on or before the 20th Business Day prior to the Repurchase Date or, in the event of a Fundamental Change arising from a Change of Control, the anticipated Effective Date (but in no event earlier than 45 days prior to the Repurchase Date or anticipated Effective Date, as the case may be), and (ii) within 15 Business Days 30th day after the Company knows or reasonably should know of the occurrence of a Fundamental Change that arises as a result of any Termination of Trading. Prior to or concurrently with the delivery of any Company Noticein Control, the Company will issue a press release or publish such information on the Company's then existing website including the information required to be included in such Company Notice hereunder. The Company shall also deliver a copy of any Company Notice to the Trustee. At or, at the request and expense of the Company on or before the fifth Business Day prior 15th day after such occurrence, the Trustee, shall give to all Holders of Securities, in the manner provided in Section 1.6, notice (the "Company Notice") of the occurrence of the Change of Control and of the repurchase right set forth herein arising as a result thereof. The Company shall also deliver a copy of such notice of a repurchase right to the date on which the Company Notice is to be mailed, the Trustee shall provide the Company Notice to the Holders in accordance with the provisions of this IndentureTrustee. Each Company Notice notice of a repurchase right shall state:
(i) the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be,
(ii) the date by which the repurchase right must be exercised,
(iii) the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, and whether the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, shall be paid by the Company in cash or by delivery of shares of Common Stock, or a specified combination thereof and the percentage of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, that will be paid in shares of Common Stock (which indication shall be irrevocable, subject to the satisfaction (or waiver) of the conditions set forth in Section 3.3),
(iv) if the notice relates to the occurrence of a Fundamental Change, the events causing the Fundamental Change and the date of the Fundamental Change,
(v) that Securities with respect to which a Holder gives a Repurchase Notice or Fundamental Change Repurchase Notice may be converted only if the Holder withdraws the Repurchase Notice or Fundamental Change Repurchase Notice as to such Securities in accordance with the terms of this Indenture,
(vi) a description of the procedure that which a Holder must follow to exercise a repurchase right, and the place or places where such Securities are to be surrendered for payment of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, and accrued but unpaid interest (and Liquidated Damages)interest, if any, to, but excluding, any to the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be,
(viiv) that on the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be, the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, and accrued but unpaid interest (and Liquidated Damages)interest, if any, to, but excluding, any to the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be, will become due and payable upon each such Security designated by the Holder to be repurchased, and that interest thereon shall cease to accrue on and after said date,
(viiivi) the Conversion Price Rate then in effect,, the date on which the right to convert the principal amount of the Securities to be repurchased will terminate and the place or places where such Securities may be surrendered for conversion, and
(ixvii) the place or places that the Security certificate (including with the Election of Holder to Require Repurchase attached thereto) and the Repurchase Notice (as defined below) specified in Section 2.2 shall be delivered, and, if the Security is a Restricted Security, the place or places that the Transfer Certificate in the form set forth in Exhibit C, required by Section 2.12 shall be delivered,
(x) the name and address of the Paying Agent and Conversion Agent, and
(xi) if the notice relates to a Fundamental Change, the estimated amount of any Make-Whole Premium and the respective percentages of such Make-Whole Premium that will be paid (as contemplated by Section 6.1(b)) in shares of Common Stock and in cash (which indication shall be irrevocable), subject to the satisfaction (or waiver) of the conditions set forth in Section 6.1(c), in the event that a Holder should, in lieu of electing to have Securities repurchased on the Fundamental Change Repurchase Date, elect to convert such Securities during the Fundamental Change Conversion Period, and
(xii) any other information to be included therein pursuant to Section 6.1. No failure of the Company to give the foregoing notices or defect therein shall limit any Holder's ' s right to exercise a repurchase right or affect the validity of the proceedings for the repurchase of Securities. If any of the foregoing provisions or other provisions of this Article III XIV are inconsistent with applicable law, such law shall govern.
(b2) To exercise a repurchase right pursuant to Section 3.1 or Section 3.2right, a Holder shall deliver to the Paying Agent Trustee on or before the 30th day after the date of the Company Notice (i) irrevocable written notice (in the case of a repurchase pursuant to Section 3.1, a "Repurchase Notice" and, in the case of a repurchase pursuant to Section 3.2, a "Fundamental Change Repurchase Notice") of the Holder's exercise of such right, which notice shall set forth the name of the Holder, the principal amount of the Securities to be repurchased (and, if any Security is to repurchased in part, the serial number thereof, the portion of the principal amount thereof to be repurchased (which portion must be in principal amounts of $1,000 or a whole multiple of $1,000) and the name of the Person in which the portion thereof to remain outstanding Outstanding after such repurchase is to be registered), if certificated, the certificate numbers of the Securities to be repurchased, ) and a statement that an election to exercise the repurchase right pursuant to the terms and conditions specified in the Securities and the Indenture is being made thereby, and, in the event that any portion of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, shall be paid in shares of Common Stock, the name or names (with addresses) in which the certificate or certificates for shares of Common Stock shall be issued, and (ii) the Securities with respect to which the Repurchase Notice or Fundamental Change Repurchase Notice relates at any time after delivery repurchase right is being exercised. Such written notice shall be irrevocable, except that the right of the Repurchase Notice or the Fundamental Change Repurchase Notice, as the case may be (together with all necessary endorsements), at the offices of the Paying Agent, such delivery being a condition Holder to receipt by the Holder of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, thereof; provided, however, that such Repurchase Price or Fundamental Change Repurchase Price, as the case may be, shall be so paid pursuant to this Section 3.4(b) only if convert the Securities so delivered with respect to which the Paying Agent shall conform in all respects to the description thereof in the related Repurchase Notice or Fundamental Change Repurchase Notice. In the case of a repurchase right pursuant to Section 3.1 and Section 3.2, such delivery is being exercised shall be at any time from the opening of business on the date that is 20 Business Days prior to the Repurchase Date continue until the close of business on the second Business Day Repurchase Date.
(3) In the event a repurchase right shall be exercised in accordance with the terms hereof, the Company shall pay or cause to be paid to the Trustee the Repurchase Price in cash or shares of Common Stock, as provided above, for payment to the Holder on the Repurchase Date or, if shares of Common Stock are to be paid, as promptly after the Repurchase Date as practicable, together with accrued and unpaid interest to the Repurchase Date payable with respect to the Securities as to which the repurchase right has been exercised; provided, however, that installments of interest that mature on or prior to the Repurchase Date shall be payable in cash to the Holders of such Securities, or one or more Predecessor Securities, registered as such at the Fundamental Change close of business on the relevant Regular Record Date.
(4) If any Security (or portion thereof) surrendered for repurchase shall not be so paid on the Repurchase Date, the principal amount of such Security (or portion thereof, as the case may be) shall, subject until paid, bear interest to extension the extent permitted by applicable law from the Repurchase Date at the rate of _____% per annum, and each Security shall remain convertible into Common Stock until the principal of such Security (or portion thereof, as the case may be) shall have been paid or duly provided for.
(5) Any Security which is to comply with be repurchased only in part shall be surrendered to the Trustee (with, if the Company or the Trustee so requires, due endorsement by, or a written instrument of transfer in form satisfactory to the Company and the Trustee duly executed by, the Holder thereof or his attorney duly authorized in writing), and the Company shall execute, and the Trustee shall authenticate and make available for delivery to the Holder of such Security without service charge, a new Security or Securities, containing identical terms and conditions, each in an authorized denomination in aggregate principal amount equal to and in exchange for the unrepurchased portion of the principal of the Security so surrendered.
(6) Any issuance of shares of Common Stock in respect of the Repurchase Price shall be deemed to have been effected immediately prior to the close of business on the Repurchase Date and the Person or Persons in whose name or names any certificate or certificates for shares of Common Stock shall be issuable upon such repurchase shall be deemed to have become on the Repurchase Date the holder or holders of record of the shares represented thereby; provided, however, that any surrender for repurchase on a date when the stock transfer books of the Company shall be closed shall constitute the Person or Persons in whose name or names the certificate or certificates for such shares are to be issued as the record holder or holders thereof for all purposes at the opening of business on the next succeeding day on which such stock transfer books are open. No payment or adjustment shall be made for dividends or distributions on any Common Stock issued upon repurchase of any Security declared prior to the Repurchase Date.
(7) No fractions of shares shall be issued upon repurchase of Securities. If more than one Security shall be repurchased from the same Holder and the Repurchase Price shall be payable in shares of Common Stock, the number of full shares which shall be issuable upon such repurchase shall be computed on the basis of the aggregate principal amount of the Securities so repurchased. Instead of any fractional share of Common Stock which would otherwise be issuable on the repurchase of any Security or Securities, the Company will deliver to the applicable lawHolder its check for the current market value of such fractional share. Owners The current market value of beneficial interests in Global a fraction of a share is determined by multiplying the current market price of a full share by the fraction, and rounding the result to the nearest cent. For purposes of this Section, the current market price of a share of Common Stock is the Closing Price Per Share of the Common Stock on the Trading Day immediately preceding the Repurchase Date.
(8) Any issuance and delivery of certificates for shares of Common Stock on repurchase of Securities shall provide a Repurchase Notice be made without charge to the Holder of Securities being repurchased for such certificates or Fundamental Change Repurchase Notice for any tax or duty in accordance with the Applicable Procedures respect of the Depositaryissuance or delivery of such certificates or the securities represented thereby; provided, however, that the Company shall not be required to pay any tax or duty which may be payable in respect of (i) income of the Holder or (ii) any transfer involved in the issuance or delivery of certificates for shares of Common Stock in a name other than that of the Holder of the Securities being repurchased, and no such issuance or delivery shall be made unless and until the Person requesting such issuance or delivery has paid to the Company the amount of any such tax or duty or has established, to the satisfaction of the Company, that such tax or duty has been paid.
(9) All Securities delivered for repurchase shall be delivered to the Trustee to be canceled at the direction of the Trustee, which shall dispose of the same as provided in Section 3.9.
Appears in 1 contract
Samples: Indenture (Oni Systems Corp)
Notices; Method of Exercising Repurchase Right, Etc. (a) Unless the --------------------------------------------------- Company shall have theretofore called for redemption all of the outstanding Outstanding Securities, on or before the 30th day after the occurrence of a Change in Control, the Company or, at the written request and expense of the Company on or before the 15th day after such occurrence, the Trustee, shall give to the Trustee, the Paying Agent and all Holders of Securities, in the manner provided in this Section 3.413.12 of the Subordinated Indenture, a written notice containing the information required pursuant to the following provisions of this Section 3.4(a) (the "Company NoticeOffer to Purchase") (i) on or before the 20th Business Day prior to the Repurchase Date or, in the event of a Fundamental Change arising from a Change of Control, the anticipated Effective Date (but in no event earlier than 45 days prior to the Repurchase Date or anticipated Effective Date, as the case may be), and (ii) within 15 Business Days after the Company knows or reasonably should know of the occurrence of a Fundamental the Change that arises of Control and of the repurchase right set forth herein arising as a result of any Termination of Trading. Prior to or concurrently with the delivery of any Company Notice, the Company will issue a press release or publish such information on the Company's then existing website including the information required to be included in such Company Notice hereunderthereof. The Company shall also deliver a copy of any Company Notice such Offer to Purchase to the Trustee. At the request and expense of Simultaneously with giving such notice, the Company on or before the fifth Business Day prior to the date on which the Company Notice is to be mailed, the Trustee shall provide the Company Notice to the Holders issue a Press Release including all relevant information in accordance with the provisions of this Indenturesuch notice. Each Company Notice Offer to Purchase shall state:
(i) the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be,
(ii) the date by which the repurchase right must be exercisedexercised pursuant to Section 10.3(2),
(iii) the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, and whether the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, shall be paid by the Company in cash or by delivery of shares of Common Stock, or a specified combination thereof and the percentage of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, that will be paid in shares of Common Stock (which indication shall be irrevocable, subject to the satisfaction (or waiver) of the conditions set forth in Section 3.3),
(iv) if the notice relates to the occurrence of a Fundamental Change, the events causing the Fundamental Change and the date of the Fundamental Change,
(v) that Securities with respect to which a Holder gives a Repurchase Notice or Fundamental Change Repurchase Notice may be converted only if the Holder withdraws the Repurchase Notice or Fundamental Change Repurchase Notice as to such Securities in accordance with the terms of this Indenture,
(vi) a description of the procedure that which a Holder must follow to exercise a repurchase right, and the place or places where such Securities are to be surrendered for payment of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, and accrued but unpaid interest (and Liquidated Damages)interest, if any, to, but excluding, any to the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be,
(viiv) that on the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be, the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, and accrued but unpaid interest (and Liquidated Damages)interest, if any, to, but excluding, any to the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be, will become due and payable upon each such Security designated by the Holder to be repurchased, and that interest thereon shall cease to accrue on and after said date,
(viiivi) the Conversion Price Rate then in effect,, the date on which the right to convert the principal amount of the Securities to be repurchased will terminate and the place or places where such Securities may be surrendered for conversion, and
(ixvii) the place or places that the Security certificate (including with the Election of Holder to Require Repurchase attached thereto) and the Repurchase Notice (as defined below) specified in Section 3.2 shall be delivered, and, if the Security is a Restricted Security, the place or places that the Transfer Certificate in the form set forth in Exhibit C, required by Section 2.12 shall be delivered,
(x) the name and address of the Paying Agent and Conversion Agent, and
(xi) if the notice relates to a Fundamental Change, the estimated amount of any Make-Whole Premium and the respective percentages of such Make-Whole Premium that will be paid (as contemplated by Section 6.1(b)) in shares of Common Stock and in cash (which indication shall be irrevocable), subject to the satisfaction (or waiver) of the conditions set forth in Section 6.1(c), in the event that a Holder should, in lieu of electing to have Securities repurchased on the Fundamental Change Repurchase Date, elect to convert such Securities during the Fundamental Change Conversion Period, and
(xii) any other information to be included therein pursuant to Section 6.1. No failure of the Company to give the foregoing notices Offer to Purchase or defect therein shall limit any Holder's ' s right to exercise a repurchase right or affect the validity of the proceedings for the repurchase of Securities. If any of the foregoing provisions or other provisions of this Article III X are inconsistent with applicable law, such law shall govern.
(b1) To exercise a repurchase right pursuant to Section 3.1 or Section 3.2right, a Holder shall deliver to the Paying Agent Trustee on or before the date that is five Business Days prior to the Repurchase Date stated in the Offer to Purchase (i) written notice (in the case of a repurchase pursuant to Section 3.1, a "Repurchase Notice" and, in the case of a repurchase pursuant to Section 3.2, a "Fundamental Change Repurchase Notice") of the Holder's exercise of such right, which notice shall set forth the name of the Holder, the principal amount of the Securities to be repurchased (and, if any Security is to repurchased in part, the serial number thereof, the portion of the principal amount thereof to be repurchased (which portion must be in principal amounts of $1,000 or a whole multiple of $1,000) and the name of the Person in which the portion thereof to remain outstanding Outstanding after such repurchase is to be registered), if certificated, the certificate numbers of the Securities to be repurchased, ) and a statement that an election to exercise the repurchase right pursuant to the terms and conditions specified in the Securities and the Indenture is being made thereby, and, in the event that any portion of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, shall be paid in shares of Common Stock, the name or names (with addresses) in which the certificate or certificates for shares of Common Stock shall be issued, and (ii) the Securities with respect to which the Repurchase Notice or Fundamental Change Repurchase Notice relates at any time after delivery repurchase right is being exercised. Such written notice shall be irrevocable, except that the right of the Repurchase Notice or the Fundamental Change Repurchase Notice, as the case may be (together with all necessary endorsements), at the offices of the Paying Agent, such delivery being a condition Holder to receipt by the Holder of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, thereof; provided, however, that such Repurchase Price or Fundamental Change Repurchase Price, as the case may be, shall be so paid pursuant to this Section 3.4(b) only if convert the Securities so delivered with respect to which the Paying Agent shall conform in all respects to the description thereof in the related Repurchase Notice or Fundamental Change Repurchase Notice. In the case of a repurchase right pursuant to Section 3.1 and Section 3.2, such delivery is being exercised shall be at any time from the opening of business on the date that is 20 Business Days prior to the Repurchase Date continue until the close of business on the second Business Day Repurchase Date.
(2) In the event a repurchase right shall be exercised in accordance with the terms hereof, the Company shall pay or cause to be paid to the Trustee the Repurchase Price in cash or shares of Common Stock, as provided above, for payment to the Holder on the Repurchase Date or, if shares of Common Stock are to be paid, as promptly after the Repurchase Date as practicable, together with accrued and unpaid interest to the Repurchase Date payable with respect to the Securities as to which the repurchase right has been exercised; provided, however, that installments of interest that mature on or prior to the Repurchase Date shall be payable in cash to the Holders of such Securities, or one or more Predecessor Subordinated Securities, registered as such at the Fundamental Change close of business on the relevant Record Date.
(3) If any Security (or portion thereof) surrendered for repurchase shall not be so paid on the Repurchase Date, the principal amount of such Security (or portion thereof, as the case may be) shall, subject until paid, bear interest to extension the extent permitted by applicable law from the Repurchase Date at the rate of 7 1/4% per annum, and each Security shall remain convertible into Common Stock until the principal of such Security (or portion thereof, as the case may be) shall have been paid or duly provided for.
(4) Any Security which is to comply with be repurchased only in part shall be surrendered to the Trustee (with, if the Company or the Trustee so requires, due endorsement by, or a written instrument of transfer in form satisfactory to the Company and the Trustee duly executed by, the Holder thereof or his attorney duly authorized in writing), and the Company shall execute, and the Trustee shall authenticate and make available for delivery to the Holder of such Security without service charge and at no charge to the Trustee, a new Security or Securities, containing identical terms and conditions, each in an authorized denomination in aggregate principal amount equal to and in exchange for the unrepurchased portion of the principal of the Security so surrendered.
(5) Any issuance of shares of Common Stock in respect of the Repurchase Price shall be deemed to have been effected immediately prior to the close of business on the Repurchase Date and the Person or Persons in whose name or names any certificate or certificates for shares of Common Stock shall be issuable upon such repurchase shall be deemed to have become on the Repurchase Date the holder or holders of record of the shares represented thereby; provided, however, that any surrender for repurchase on a date when the stock transfer books of the Company shall be closed shall constitute the Person or Persons in whose name or names the certificate or certificates for such shares are to be issued as the record holder or holders thereof for all purposes at the opening of business on the next succeeding day on which such stock transfer books are open. No payment or adjustment shall be made for dividends or distributions on any Common Stock issued upon repurchase of any Security declared prior to the Repurchase Date.
(6) No fractions of shares shall be issued upon repurchase of Securities. If more than one Security shall be repurchased from the same Holder and the Repurchase Price shall be payable in shares of Common Stock, the number of full shares which shall be issuable upon such repurchase shall be computed on the basis of the aggregate principal amount of the Securities so repurchased. Instead of any fractional share of Common Stock which would otherwise be issuable on the repurchase of any Security or Securities, the Company will deliver to the applicable lawHolder its check for the current market value of such fractional share. Owners The current market value of beneficial interests in Global a fraction of a share is determined by multiplying the current market price of a full share by the fraction, and rounding the result to the nearest cent. For purposes of this Section, the current market price of a share of Common Stock is the Closing Price Per Share of the Common Stock on the Trading Day immediately preceding the Repurchase Date.
(7) Any issuance and delivery of certificates for shares of Common Stock on repurchase of Securities shall provide a Repurchase Notice be made without charge to the Holder of Securities being repurchased for such certificates or Fundamental Change Repurchase Notice for any tax or duty in accordance with the Applicable Procedures respect of the Depositaryissuance or delivery of such certificates or the securities represented thereby; provided, however, that the Company shall not be required to pay any tax or duty which may be payable in respect of (i) income of the Holder or (ii) any transfer involved in the issuance or delivery of certificates for shares of Common Stock in a name other than that of the Holder of the Securities being repurchased, and no such issuance or delivery shall be made unless and until the Person requesting such issuance or delivery has paid to the Company the amount of any such tax or duty or has established, to the satisfaction of the Company, that such tax or duty has been paid.
(8) All Securities delivered for repurchase shall be delivered to the Trustee to be canceled and disposed of as provided in Section 2.10 of the Indenture.
Appears in 1 contract
Samples: Supplemental Subordinated Indenture (Exodus Communications Inc)
Notices; Method of Exercising Repurchase Right, Etc. (a) Unless the Company shall have theretofore called for redemption all of the outstanding SecuritiesOutstanding 4.50% Debentures or unless all of the Outstanding 4.50% Debentures shall have theretofore been converted in accordance with Article Thirteen, the Company shall give to the Trustee, the Paying Agent and all Holders of Securities, in the manner provided in this Section 3.4, a notice containing the information required pursuant to the following provisions of this Section 3.4(a) (the "Company Notice") (i) on or before the 20th Business Day prior to 30th day after the Repurchase Date or, in the event occurrence of a Fundamental Change arising from a Change of Control, the anticipated Effective Date (but in no event earlier than 45 days prior to the Repurchase Date or anticipated Effective DateCompany or, as the case may be), and (ii) within 15 Business Days after the Company knows or reasonably should know of the occurrence of a Fundamental Change that arises as a result of any Termination of Trading. Prior to or concurrently with the delivery of any Company Notice, the Company will issue a press release or publish such information on the Company's then existing website including the information required to be included in such Company Notice hereunder. The Company shall also deliver a copy of any Company Notice to the Trustee. At at the request and expense of the Company on or before the fifth Business Day prior 15th day after such occurrence, the Trustee, shall give to all Holders, in the manner provided in Section 106, notice (the "Company Notice") of the occurrence of the Change of Control and of the repurchase right set forth herein arising as a result thereof. The Company shall also deliver a copy of such notice of a repurchase right to the date on which the Company Notice is to be mailed, the Trustee shall provide the Company Notice to the Holders in accordance with the provisions of this IndentureTrustee. Each Company Notice notice of a repurchase right shall state:
(i1) the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be,
(ii2) the date by which the repurchase right must be exercised,
(iii3) the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, and whether the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, shall be paid by the Company in cash or by delivery of shares of Common Stock, or a specified combination thereof and the percentage of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, that will be paid in shares of Common Stock (which indication shall be irrevocable, subject to the satisfaction (or waiver) of the conditions set forth in Section 3.3),
(iv) if the notice relates to the occurrence of a Fundamental Change, the events causing the Fundamental Change and the date of the Fundamental Change,
(v) that Securities with respect to which a Holder gives a Repurchase Notice or Fundamental Change Repurchase Notice may be converted only if the Holder withdraws the Repurchase Notice or Fundamental Change Repurchase Notice as to such Securities in accordance with the terms of this Indenture,
(vi4) a description of the procedure that which a Holder must follow to exercise a repurchase right, and the place or places where such Securities 4.50% Debentures are to be surrendered for payment of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, and accrued but unpaid interest (and Liquidated Damages)interest, if any, to, but excluding, the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be,
(vii5) that on the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be, the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, and including accrued but unpaid interest (and Liquidated Damages)interest, if any, to, but excluding, the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be, will become due and payable upon each such Security 4.50% Debenture designated by the Holder to be repurchased, and that interest thereon shall cease to accrue on and after said date,
(viii6) the Conversion Price Rate then in effect,, the date on which the right to convert the principal amount of the 4.50% Debentures to be repurchased will terminate and the place or places where such 4.50% Debentures may be surrendered for conversion, and
(ix7) the place or places that the Security form of certificate (including the Election of Holder to Require Repurchase attached thereto) and the Repurchase Notice (as defined below) required by Section 201 shall be delivered, and, if the Security is a Restricted Security, the place or places that the Transfer Certificate in and the form set forth in Exhibit C, required by Section 2.12 shall be delivered,
(x) the name and address of the Paying Agent and Conversion Agent, and
(xi) if the notice relates to a Fundamental Change, the estimated amount of any Make-Whole Premium and the respective percentages of such Make-Whole Premium that will be paid (as contemplated by Section 6.1(b)) in shares of Common Stock and in cash (which indication shall be irrevocable), subject to the satisfaction (or waiver) of the conditions set forth in Section 6.1(c), in the event that a Holder should, in lieu of electing to have Securities repurchased on the Fundamental Change Repurchase Date, elect to convert such Securities during the Fundamental Change Conversion Period, and
(xii) any other information to be included therein pursuant to Section 6.1certificate. No failure of the Company to give the foregoing notices or defect therein shall limit any Holder's right to exercise a repurchase right or affect the validity of the proceedings for the repurchase of Securities4.50% Debentures. If any of the foregoing provisions or other provisions of this Article III are inconsistent with applicable law, such law shall govern.
(b) To exercise a repurchase right pursuant to Section 3.1 or Section 3.2right, a Holder shall deliver to the Trustee or any Paying Agent on or before the 30th day after the date of the Company Notice (i) written notice (in the case of a repurchase pursuant to Section 3.1, a "Repurchase Notice" and, in the case of a repurchase pursuant to Section 3.2, a "Fundamental Change Repurchase Notice") of the Holder's exercise of such right, which notice shall set forth the name of the Holder, the principal amount of the Securities 4.50% Debentures to be repurchased (and, if any Security 4.50% Debenture is to be repurchased in part, the portion of the principal amount thereof to be repurchased (which portion must be in principal amounts of $1,000 or a whole multiple of $1,000) and the name of the Person in which the portion thereof to remain outstanding Outstanding after such repurchase is to be registered), if certificated, the certificate numbers of the Securities to be repurchased, ) and a statement that an election to exercise the repurchase right pursuant to the terms and conditions specified in the Securities and the Indenture is being made thereby, and, in the event that any portion of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, shall be paid in shares of Common Stock, the name or names (with addresses) in which the certificate or certificates for shares of Common Stock shall be issued, and (ii) the Securities 4.50% Debentures with respect to which the Repurchase Notice or Fundamental Change Repurchase Notice relates at any time after delivery repurchase right is being exercised. Such written notice shall be irrevocable, except that the right of the Repurchase Notice or Holder to convert the Fundamental Change Repurchase Notice, as 4.50% Debentures with respect to which the case may be (together with all necessary endorsements), at the offices of the Paying Agent, such delivery being a condition to receipt by the Holder of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, thereof; provided, however, that such Repurchase Price or Fundamental Change Repurchase Price, as the case may be, shall be so paid pursuant to this Section 3.4(b) only if the Securities so delivered to the Paying Agent shall conform in all respects to the description thereof in the related Repurchase Notice or Fundamental Change Repurchase Notice. In the case of a repurchase right pursuant to Section 3.1 and Section 3.2, such delivery is being exercised shall be at any time from the opening of business on the date that is 20 Business Days prior to the Repurchase Date continue until the close of business on the second Business Day Repurchase Date.
(c) In the event a repurchase right shall be exercised in accordance with the terms hereof, the Company shall pay or cause to be paid to the Trustee or the Paying Agent the Repurchase Price in cash or shares of Common Stock, as provided above, for payment to the Holder on the Repurchase Date or, if shares of Common Stock are to be paid, as promptly after the Repurchase Date as practicable, together with accrued and unpaid interest to the Repurchase Date payable with respect to the 4.50% Debentures as to which the purchase right has been exercised; provided, however, that installments of interest that mature on or prior to the Repurchase Date shall be payable in cash to the Holders of such 4.50% Debentures, or one or more Predecessor 4.50% Debentures, registered as such at the Fundamental Change close of business on the relevant Regular Record Date according to the terms and provisions of Section 307.
(d) If any 4.50% Debenture (or portion thereof) surrendered for repurchase shall not be so paid on the Repurchase DateDate by the Company, the principal amount of such 4.50% Debenture (or portion thereof, as the case may be) shall, subject until paid, bear interest to extension the extent permitted by applicable law from the Repurchase Date at the rate of 4.50% per annum, and each 4.50% Debenture shall remain convertible into Common Stock until the principal of such 4.50% Debenture (or portion thereof, as the case may be) shall have been paid or duly provided for.
(e) Any 4.50% Debenture which is to comply with applicable law. Owners be repurchased only in part shall be surrendered to the Trustee (with, if the Company or the Trustee so requires, due endorsement by, or a written instrument of beneficial interests transfer in Global Securities form satisfactory to the Company and the Trustee duly executed by, the Holder thereof or his attorney duly authorized in writing), and the Company shall provide execute, and the Trustee shall authenticate and make available for delivery to the Holder of such 4.50% Debenture without service charge, a Repurchase Notice new 4.50% Debenture or Fundamental Change Repurchase Notice 4.50% Debentures, containing identical terms and conditions, each in accordance with an authorized denomination in aggregate principal amount equal to and in exchange for the Applicable Procedures unrepurchased portion of the Depositaryprincipal of the 4.50% Debenture so surrendered.
(f) Any issuance of shares of Common Stock in respect of the Repurchase Price shall be deemed to have been effected immediately prior to the close of business on the Repurchase Date and the Person or Persons in whose name or names any certificate or certificates for shares of Common Stock shall be issuable upon such repurchase shall be deemed to have become on the Repurchase Date the holder or holders of record of the shares represented thereby; provided, however, that any surrender for repurchase on a date when the stock transfer books of the Company shall be closed shall constitute the Person or Persons in whose name or names the certificate or certificates for such shares are to be issued as the record holder or holders thereof for all purposes at the opening of business on the next succeeding day on which such stock transfer books are open. No payment or adjustment shall be made for dividends or distributions on any Common Stock issued upon repurchase of any 4.50% Debenture declared prior to the Repurchase Date.
(g) No fractions of shares shall be issued upon repurchase of 4.50% Debentures. If more than one 4.50% Debenture shall be repurchased from the same Holder and the Repurchase Price shall be payable in shares of Common Stock, the number of full shares which shall be issuable upon such repurchase shall be computed on the basis of the aggregate principal amount of the 4.50% Debentures so repurchased. Instead of any fractional share of Common Stock which would otherwise be issuable on the repurchase of any 4.50% Debenture or 4.50% Debentures, the Company will deliver to the applicable Holder its check for the current market value of such fractional share. The current market value of a fraction of a share is determined by multiplying the current market price of a full share by the fraction, and rounding the result to the nearest cent. For purposes of this Section, the current market price of a share of Common Stock is the Closing Price Per Share of the Common Stock on the Trading Day immediately preceding the Repurchase Date.
(h) Any issuance and delivery of certificates for shares of Common Stock on repurchase of 4.50% Debentures shall be made without charge to the Holder of 4.50% Debentures being repurchased for such certificates or for any tax or duty in respect of the issuance or delivery of such certificates or the securities represented thereby; provided, however, that the Company shall not be required to pay any tax or duty which may be payable in respect of (i) income of the Holder or (ii) any transfer involved in the issuance or delivery of certificates for shares of Common Stock in a name other than that of the Holder of the 4.50% Debentures being repurchased, and no such issuance or delivery shall be made unless and until the Person requesting such issuance or delivery has paid to the Company the amount of any such tax or duty or has established, to the satisfaction of the Company, that such tax or duty has been paid.
(i) All 4.50% Debentures delivered for repurchase shall be delivered to the Trustee, the Paying Agent or any other agents (as shall be set forth in the Company Notice) to be canceled by or at the direction of the Trustee, which shall dispose of the same as provided in Section 309.
Appears in 1 contract
Samples: Supplemental Indenture (Inacom Corp)
Notices; Method of Exercising Repurchase Right, Etc. (a) Unless On or before the Company shall have theretofore called for redemption all 30th day after the occurrence of the outstanding Securitiesa Designated Event, the Company or, at the request and expense of the Company, the Trustee, shall give to the Trustee, the Paying Agent and all Holders of Securities, in the manner provided in this Section 3.41.06, a notice containing the information required pursuant to the following provisions of this Section 3.4(a) (the "Company Notice") (i) on or before the 20th Business Day prior to the Repurchase Date or, in the event of a Fundamental Change arising from a Change of Control, the anticipated Effective Date (but in no event earlier than 45 days prior to the Repurchase Date or anticipated Effective Date, as the case may be), and (ii) within 15 Business Days after the Company knows or reasonably should know of the occurrence of a Fundamental Change that arises the Designated Event and of the Repurchase Right set forth herein arising as a result of any Termination of Trading. Prior to or concurrently with the delivery of any Company Notice, the Company will issue a press release or publish such information on the Company's then existing website including the information required to be included in such Company Notice hereunderthereof. The Company shall also deliver a copy of any Company Notice such notice of a repurchase right to the Trustee. At the request and expense of the Company on or before the fifth Business Day prior to the date on which the Company Notice is to be mailed, the Trustee shall provide the Company Notice to the Holders in accordance with the provisions of this Indenture. Each Company Notice shall state:
(i) the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be,;
(ii) the date by which the repurchase right Repurchase Right must be exercised,;
(iii) the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, and whether the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, shall be paid by the Company in cash or by delivery of shares of Common Stock, or a specified combination thereof and the percentage of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, that will be paid in shares of Common Stock (which indication shall be irrevocable, subject to the satisfaction (or waiver) of the conditions set forth in Section 3.3),;
(iv) if the notice relates to the occurrence of a Fundamental Change, the events causing the Fundamental Change and the date of the Fundamental Change,
(v) that Securities with respect to which a Holder gives a Repurchase Notice or Fundamental Change Repurchase Notice may be converted only if the Holder withdraws the Repurchase Notice or Fundamental Change Repurchase Notice as to such Securities in accordance with the terms of this Indenture,
(vi) a description of the procedure that which a Holder must follow to exercise a repurchase rightRepurchase Right, and the place or places where such Securities Securities, together with all coupons appertaining thereto, if any, maturing after the Repurchase Date, are to be surrendered for payment of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, and accrued but unpaid interest (and Liquidated Damages), if any, to, but excluding, the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be,;
(viiv) that on the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be, the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, and accrued but unpaid interest (and Liquidated Damages), if any, to, but excluding, the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be, will become due and payable upon each such Security designated by the Holder to be repurchased, and that interest thereon shall cease to accrue on and after said date,;
(viiivi) the Conversion Price then in effect,, the date on which the right to convert the principal amount of the Securities to be repurchased will terminate and the place or places where such Securities, together with all unmatured coupons and any matured coupons in default appertaining thereto, may be surrendered for conversion, and
(ixvii) the place or places that the Security certificate (including required by the Election of Holder to Require Repurchase attached thereto) and the Repurchase Notice (as defined below) Exhibits hereto shall be delivered, and, if the Security is a Restricted Security, the place or places that the Transfer Certificate in and the form set forth in Exhibit C, required by Section 2.12 shall be delivered,
(x) the name and address of the Paying Agent and Conversion Agent, and
(xi) if the notice relates to a Fundamental Change, the estimated amount of any Make-Whole Premium and the respective percentages of such Make-Whole Premium that will be paid (as contemplated by Section 6.1(b)) in shares of Common Stock and in cash (which indication shall be irrevocable), subject to the satisfaction (or waiver) of the conditions set forth in Section 6.1(c), in the event that a Holder should, in lieu of electing to have Securities repurchased on the Fundamental Change Repurchase Date, elect to convert such Securities during the Fundamental Change Conversion Period, and
(xii) any other information to be included therein pursuant to Section 6.1certificate. No failure of the Company to give the foregoing notices or defect therein shall limit any Holder's right to exercise a repurchase right Repurchase Right or affect the validity of the proceedings for the repurchase of Securities. If any of the foregoing provisions or other provisions of this Article III are inconsistent with applicable law, such law shall govern.
(b) To exercise a repurchase right pursuant to Section 3.1 or Section 3.2right, a Holder of Securities shall deliver to the Company (or an agent designated by the Company for such purpose) and the Trustee or any Paying Agent on or before the 30th day after the date of the Company Notice (i) written notice (in the case of a repurchase pursuant to Section 3.1, a "Repurchase Notice" and, in the case of a repurchase pursuant to Section 3.2, a "Fundamental Change Repurchase Notice") of the Holder's exercise of such right, which notice shall set forth the name of the Holder, the principal amount of the Securities to be repurchased (and, if any Security is to repurchased in part, the portion of the principal amount thereof to be repurchased (which portion must be in principal amounts of $1,000 or a whole multiple of $1,000) and the name of the Person in which the portion thereof to remain outstanding after such repurchase is to be registered), if certificated, the certificate numbers of the Securities to be repurchased, and a statement that an election to exercise the repurchase right pursuant to the terms and conditions specified in the Securities and the Indenture Repurchase Right is being made thereby, and, in the event that any portion of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, shall be paid in shares of Common Stock, the name or names (with addresses) in which the certificate or certificates for shares of Common Stock shall be issued, thereby and (ii) the Securities with respect to which the Repurchase Notice or Fundamental Change Repurchase Notice relates at any time after delivery of the Repurchase Notice or the Fundamental Change Repurchase NoticeRight is being exercised, as the case may be (together with all necessary endorsements)coupons, at if any, appertaining thereto maturing after the offices Repurchase Date; PROVIDED, HOWEVER, that Bearer Definitive Securities shall be delivered only to an office of a Paying Agent located outside the United States except in the limited circumstances described in Section 8.02 and the form of Bearer Definitive Security set forth in Exhibit A. Such written notice shall be irrevocable, except that the right of the Paying Agent, such delivery being a condition Holder to receipt by convert the Holder of Securities with respect to which the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, thereof; provided, however, that such Repurchase Price or Fundamental Change Repurchase Price, as the case may be, Right is being exercised shall be so paid pursuant to this Section 3.4(b) only if the Securities so delivered to the Paying Agent shall conform in all respects to the description thereof in the related Repurchase Notice or Fundamental Change Repurchase Notice. In the case of a repurchase right pursuant to Section 3.1 and Section 3.2, such delivery shall be at any time from the opening of business on the date that is 20 Business Days prior to the Repurchase Date continue until the close of business on the second Business Day preceding the Repurchase Date.
(c) In the event a Repurchase Right shall be exercised in accordance with the terms hereof, the Company shall pay or cause to be paid to the Trustee or any Paying Agent the Repurchase Price in cash for payment to the Holder on the Repurchase Date PROVIDED, HOWEVER, that installments of interest that mature on or prior to the Repurchase Date shall be payable in cash, in the case of Registered Securities, to the Holders of such Securities, or one or more Predecessor Securities, registered as such at the close of business on the relevant Regular Record Date and, in the case of Bearer Definitive Securities, to the holder of the coupon with respect thereto, in each case according to the terms and provisions of Article II; and PROVIDED FURTHER, that Bearer Definitive Securities and coupons shall be so payable only at an office or agency outside the United States (except as otherwise provided in the Section 8.02 and form of Bearer Definitive Security set forth in Exhibit A).
(d) If any Bearer Security surrendered for repurchase shall not be accompanied by all appurtenant coupons maturing after the Repurchase Date, such Security may be paid after deducting from the Repurchase Price an amount equal to the face amount of all such missing coupons or the Fundamental Change surrender of such missing coupons or coupon may be waived by the Company and the Trustee, if there be furnished to them such security or indemnity as they may require to save each of them and any Paying Agent harmless. If thereafter the Holder of such Bearer Security shall surrender to any Paying Agent any such missing coupon in respect of which a deduction shall have been made from the Repurchase Price, if any, such Holder shall be entitled to receive the amount so deducted; PROVIDED, HOWEVER, that interest represented by coupons shall be payable only upon presentation and surrender of those coupons at an office or agency located outside of the United States (except as 103 otherwise provided in Section 8.02 and the form of Bearer Security set forth in Exhibit A).
(e) If any Security (or portion thereof) surrendered for repurchase shall not be so paid on the Repurchase Date, the principal amount of such Security (or portion thereof, as the case may be) shall, subject to extension to comply until paid, bear interest from the Repurchase Date at the rate borne by such Security, and each Security shall remain convertible into Common Stock until the principal, together with applicable law. Owners any accrued and unpaid interest thereon, of beneficial interests in Global Securities such Security (or portion thereof, as the case may be) shall provide a Repurchase Notice have been paid or Fundamental Change Repurchase Notice in accordance with the Applicable Procedures of the Depositaryduly provided for.
Appears in 1 contract
Samples: Indenture (Macerich Co)
Notices; Method of Exercising Repurchase Right, Etc. (a) Unless the Company shall have theretofore called for redemption all of the outstanding SecuritiesNotes and deposited or set aside an amount of money sufficient to redeem such Notes on the redemption date as set forth in Section 3.2, on or before (x) the tenth (10th) calendar day following the occurrence of a Repurchase Event and (y) September 1, 2010, September 1, 2015 and September 1, 2020, the Company shall give to or, at the written request of the Company, the Trustee, shall send to all holders of record of the Paying Agent and all Holders of Securities, in the manner provided in this Section 3.4, Notes a notice containing the information required pursuant to the following provisions of this Section 3.4(a) (the "Company Notice") (i) on or before of the 20th Business Day prior to repurchase right set forth herein arising as of the Repurchase Date or, in the event of a Fundamental Change arising from a Change of Control, the anticipated Effective Date (but in no event earlier than 45 days prior to the Repurchase Date or anticipated Effective Date, as the case may be), and (ii) within 15 Business Days after the Company knows or reasonably should know result of the occurrence of a Fundamental Change that arises Repurchase Event or on October 15, 2010, October 15, 2015 or October 15, 2020, as a result of any Termination of Trading. Prior to or concurrently with the delivery of any Company Notice, the Company will issue a press release or publish such information on the Company's then existing website including the information required to be included in such Company Notice hereunderapplicable. The Company shall also deliver a copy of any Company Notice such notice to the Trustee. At the request and expense of the Company on or before the fifth Business Day prior to the date on which the Company Notice is to be mailed, the Trustee shall provide the Company Notice to the Holders in accordance with the provisions of this Indenture. Each The Company Notice shall statecontain the following information:
(i1) a brief description of the Repurchase Event, if applicable;
(2) the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be,;
(ii3) the CUSIP number(s) of the Note(s) subject to the repurchase right;
(4) the date by which the repurchase right must be exercised,;
(iii5) the last date by which the election to require repurchase, if submitted, may be revoked;
(6) the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, and whether the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, shall be paid by the Company in cash or by delivery of shares of Common Stock, or a specified combination thereof and the percentage of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, that will be paid in shares of Common Stock (which indication shall be irrevocable, subject to the satisfaction (or waiver) of the conditions set forth in Section 3.3),;
(iv) if the notice relates to the occurrence of a Fundamental Change, the events causing the Fundamental Change and the date of the Fundamental Change,
(v) that Securities with respect to which a Holder gives a Repurchase Notice or Fundamental Change Repurchase Notice may be converted only if the Holder withdraws the Repurchase Notice or Fundamental Change Repurchase Notice as to such Securities in accordance with the terms of this Indenture,
(vi7) a description of the procedure that which a Holder holder must follow to exercise a the repurchase right;
(8) if applicable, that Additional Shares are expected to become issuable pursuant to Section 15.13 as a result of the Change of Control and the place or places where such Securities are method for calculating the number of Additional Shares to be surrendered for payment of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, and accrued but unpaid interest (and Liquidated Damages), if any, to, but excluding, the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be,issued; and
(vii) that on the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be, the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, and accrued but unpaid interest (and Liquidated Damages), if any, to, but excluding, the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be, will become due and payable upon each such Security designated by the Holder to be repurchased, and that interest thereon shall cease to accrue on and after said date,
(viii9) the Conversion Price then in effect,
(ix) , the date on which the right to convert the principal amount of the Notes to be repurchased will terminate and the method by which and place or places that the Security certificate (including the Election of Holder to Require Repurchase attached thereto) and the Repurchase Notice (as defined below) shall where Notes may be delivered, and, if the Security is a Restricted Security, the place or places that the Transfer Certificate in the form set forth in Exhibit C, required by Section 2.12 shall be delivered,
(x) the name and address of the Paying Agent and Conversion Agent, and
(xi) if the notice relates to a Fundamental Change, the estimated amount of any Make-Whole Premium and the respective percentages of such Make-Whole Premium that will be paid (as contemplated by Section 6.1(b)) in shares of Common Stock and in cash (which indication shall be irrevocable), subject to the satisfaction (or waiver) of the conditions set forth in Section 6.1(c), in the event that a Holder should, in lieu of electing to have Securities repurchased on the Fundamental Change Repurchase Date, elect to convert such Securities during the Fundamental Change Conversion Period, and
(xii) any other information to be included therein pursuant to Section 6.1surrendered for conversion. No failure of the Company to give the foregoing notices or defect therein shall limit any Holderholder's right to exercise a repurchase right or affect the validity of the proceedings for the repurchase of SecuritiesNotes.
(b) To exercise a repurchase right, a holder shall deliver to the Trustee on or before the close of business on the last Business Day prior to the Repurchase Date (i) written notice to the Company (or agent designated by the Company for such purpose) of the holder's exercise of such right in substantially the form attached hereto as Exhibit C (the "Repurchase Notice"), which Repurchase Notice shall set forth the name of the holder, the principal amount of the Notes to be repurchased and a statement that an election to exercise the repurchase right is being made thereby, and (ii) the Notes with respect to which the repurchase right is being exercised, duly endorsed for transfer to the Company. Election of repurchase by a holder shall be revocable at any time prior to the close of business on the last Business Day prior to the Repurchase Date, by delivering written notice to that effect to the Trustee.
(c) If the Company fails to repurchase on the Repurchase Date any Notes (or portions thereof) as to which the repurchase right has been properly exercised, then the principal of such Notes shall, until paid, bear interest to the extent permitted by applicable law from the Repurchase Date at the rate borne by the Note and each such Note shall be convertible into Common Stock in accordance with this Indenture until the principal of such Note shall have been paid or duly provided for.
(d) Any Note that is to be repurchased only in part shall be surrendered to the Trustee duly endorsed for transfer to the Company and accompanied by appropriate evidence of genuineness and authority satisfactory to the Company and the Trustee duly executed by the holder thereof (or his attorney duly authorized in writing), and the Company shall execute, and the Trustee shall authenticate and deliver to the holder of such Note without service charge, a new Note or Notes, containing identical terms and conditions, of any authorized denomination as requested by such holder in aggregate principal amount equal to and in exchange for the unrepurchased portion of the principal of the Note so surrendered.
(e) On or prior to 1:00 p.m., Minneapolis time on the Repurchase Date, the Company shall deposit with the Trustee or with a paying agent (or, if the Company is acting as its own paying agent, segregate and hold in trust as provided in Section 5.4) the Repurchase Price in cash for payment to the holder on the Repurchase Date. If on or after the Repurchase Date the Company shall have deposited (or segregated and be holding in trust) funds sufficient to pay the Repurchase Price of all Notes (or portions thereof) as to which the holders have duly exercised their repurchase rights pursuant to this Section 16.2, then on and after such date interest on such Notes (or portions thereof) shall cease to accrue and such Notes shall cease at the close of business on such date to be convertible into Common Stock and, except as provided in Section 8.5 and 13.4, to be entitled to any benefit or security under this Indenture and the holders thereof shall have no right in respect of such Notes except the right to receive the Repurchase Price of such Notes (or portions thereof), without interest thereon from the Repurchase Date.
(f) If the Company is unable to repurchase on the Repurchase Date all of the Notes (or portions thereof) as to which the repurchase right has been properly exercised, the aggregate amount of Notes the Company may repurchase shall be allocated pro rata among each Note (or portion thereof) surrendered for repurchase, based on the principal amount of such Note, in proportion to the aggregate amount of Notes surrendered for repurchase.
(g) All Notes delivered for repurchase shall be delivered to the Trustee to be canceled in accordance with the provisions of Section 2.8.
(h) If any of the foregoing provisions or other provisions of this Article III are inconsistent with applicable law, such law shall govern.
(bi) To exercise a repurchase right pursuant to Section 3.1 When complying with the requirements of this Article XVI, the Company shall comply with the requirements of Rules 13e-4 and 14e-1 (or Section 3.2, a Holder shall deliver any successor rules) under the Exchange Act and any other federal or state securities laws to the Paying Agent (i) written notice (in the case of a repurchase pursuant to Section 3.1, a "Repurchase Notice" and, in the case of a repurchase pursuant to Section 3.2, a "Fundamental Change Repurchase Notice") of the Holder's exercise of extent such right, which notice shall set forth the name of the Holder, the principal amount of the Securities to be repurchased (and, if any Security is to repurchased in part, the portion of the principal amount thereof to be repurchased (which portion must be in principal amounts of $1,000 or a whole multiple of $1,000) and the name of the Person in which the portion thereof to remain outstanding after such repurchase is to be registered), if certificated, the certificate numbers of the Securities to be repurchased, and a statement that an election to exercise the repurchase right pursuant to the terms and conditions specified in the Securities and the Indenture is being made thereby, and, in the event that any portion of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, shall be paid in shares of Common Stock, the name or names (with addresses) in which the certificate or certificates for shares of Common Stock shall be issued, and (ii) the Securities to which the Repurchase Notice or Fundamental Change Repurchase Notice relates at any time after delivery of the Repurchase Notice or the Fundamental Change Repurchase Notice, as the case may be (together with all necessary endorsements), laws are applicable at the offices of the Paying Agent, time to such delivery being a condition to receipt by the Holder of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, thereof; provided, however, that such Repurchase Price or Fundamental Change Repurchase Price, as the case may be, shall be so paid pursuant to actions under this Section 3.4(b) only if the Securities so delivered to the Paying Agent shall conform in all respects to the description thereof in the related Repurchase Notice or Fundamental Change Repurchase Notice. In the case of a repurchase right pursuant to Section 3.1 and Section 3.2, such delivery shall be at any time from the opening of business on the date that is 20 Business Days prior to the Repurchase Date until the close of business on the second Business Day prior to the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be, subject to extension to comply with applicable law. Owners of beneficial interests in Global Securities shall provide a Repurchase Notice or Fundamental Change Repurchase Notice in accordance with the Applicable Procedures of the DepositaryArticle XVI.
Appears in 1 contract
Samples: Indenture (Ats Medical Inc)
Notices; Method of Exercising Repurchase Right, Etc. (a) Unless the Company shall have theretofore called for redemption all of the outstanding Outstanding Securities, the Company shall give to the Trustee, the Paying Agent and all Holders of Securities, in the manner provided in this Section 3.4, a notice containing the information required pursuant to the following provisions of this Section 3.4(a) (the "Company Notice") (i) on or before the 20th Business Day prior to the Repurchase Date or, in the event of a Fundamental Change arising from a Change of Control, the anticipated Effective Date (but in no event earlier than 45 days prior to the Repurchase Date or anticipated Effective Date, as the case may be), and (ii) within 15 Business Days thirtieth day after the Company knows or reasonably should know of the occurrence of a Fundamental Change that arises as a result of any Termination of Trading. Prior to or concurrently with the delivery of any Company Noticein Control, the Company will issue a press release or publish such information on the Company's then existing website including the information required to be included in such Company Notice hereunder. The Company shall also deliver a copy of any Company Notice to the Trustee. At or, at the request and expense of the Company on or before the fifth Business Day prior thirtieth day after such occurrence, the Trustee, shall give to all Holders of Securities, in the manner provided in Section 1.6, notice (the "COMPANY NOTICE") of the occurrence of the Change in Control and of the repurchase right set forth herein arising as a result thereof. The Company shall also deliver a copy of such notice of a repurchase right to the date on which the Company Notice is to be mailed, the Trustee shall provide the Company Notice to the Holders in accordance with the provisions of this IndentureTrustee. Each Company Notice notice of a repurchase right shall state:
(i1) the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be,
(ii2) the date by which the repurchase right must be exercised,
(iii3) the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, and whether the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, shall be paid by the Company in cash or by delivery of shares of Common Stock, or a specified combination thereof and the percentage of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, that will be paid in shares of Common Stock (which indication shall be irrevocable, subject to the satisfaction (or waiver) of the conditions set forth in Section 3.3),
(iv) if the notice relates to the occurrence of a Fundamental Change, the events causing the Fundamental Change and the date of the Fundamental Change,
(v) that Securities with respect to which a Holder gives a Repurchase Notice or Fundamental Change Repurchase Notice may be converted only if the Holder withdraws the Repurchase Notice or Fundamental Change Repurchase Notice as to such Securities in accordance with the terms of this Indenture,
(vi4) a description of the procedure that a Holder must follow to exercise a repurchase right, and the place or places where such Securities are to be surrendered for payment of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, and accrued but unpaid interest (and Liquidated Damages)interest, if any, to, but excluding, the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be,
(vii5) that on the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be, the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, and accrued but unpaid interest (and Liquidated Damages)interest, if any, to, but excluding, the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be, will become due and payable upon each such Security designated by the Holder to be repurchased, repurchased and that interest thereon shall cease to accrue on and after said date,
(viii6) the Conversion Price Rate then in effect, the date on which the right to convert the principal amount of the Securities to be repurchased will terminate and the place or places where such Securities may be surrendered for conversion,
(ix7) the place or places that the Security certificate (including the Notice of Election of Holder to Require Repurchase attached thereto) and the Repurchase Notice (hereto as defined below) Exhibit B, shall be delivered, and, if the Security is a Restricted Security, the place or places that the Transfer Certificate in and the form set forth in Exhibit C, required by Section 2.12 shall be delivered,
(x) the name and address of the Paying Agent and Conversion Agentsuch notice, and
(xi) if 8) the notice relates to a Fundamental Change, the estimated amount of any Make-Whole Premium and the respective percentages CUSIP number or numbers of such Make-Whole Premium that will be paid (as contemplated by Section 6.1(b)) in shares of Common Stock and in cash (which indication shall be irrevocable), subject to the satisfaction (or waiver) of the conditions set forth in Section 6.1(c), in the event that a Holder should, in lieu of electing to have Securities repurchased on the Fundamental Change Repurchase Date, elect to convert such Securities during the Fundamental Change Conversion Period, and
(xii) any other information to be included therein pursuant to Section 6.1Securities. No failure of the Company to give the foregoing notices or defect therein shall limit any Holder's right to exercise a repurchase right or affect the validity of the proceedings for the repurchase of Securities. If any of the foregoing provisions or other provisions of this Article III Twelve are inconsistent with applicable law, such law shall govern.
(b) To exercise a repurchase right pursuant to Section 3.1 or Section 3.2right, a Holder shall deliver to the Paying Agent Trustee on or before the thirtieth day (ior such greater period as may be required by applicable law) after the date of the Company Notice (1) written notice (in the case of a repurchase pursuant to Section 3.1, a "Repurchase Notice" and, in the case of a repurchase pursuant to Section 3.2, a "Fundamental Change Repurchase Notice") of the Holder's exercise of such right, which notice shall set forth the name of the Holder, the principal amount of the Securities to be repurchased (and, if any Security is to repurchased in part, the serial number thereof, the portion of the principal amount thereof to be repurchased (which portion must be in principal amounts of $1,000 or a whole multiple of $1,000) and the name of the Person in which the portion thereof to remain outstanding Outstanding after such repurchase is to be registered), if certificated, the certificate numbers of the Securities to be repurchased, ) and a statement that an election to exercise the repurchase right pursuant to the terms and conditions specified in the Securities and the Indenture is being made thereby, and, in the event that any portion of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, shall be paid in shares of Common Stock, the name or names (with addresses) in which the certificate or certificates for shares of Common Stock shall be issued, and (ii2) the Securities with respect to which the Repurchase Notice or Fundamental Change Repurchase Notice relates at any time after delivery repurchase right is being exercised. Such written notice shall be irrevocable, except that the right of the Repurchase Notice or the Fundamental Change Repurchase Notice, as the case may be (together with all necessary endorsements), at the offices of the Paying Agent, such delivery being a condition Holder to receipt by the Holder of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, thereof; provided, however, that such Repurchase Price or Fundamental Change Repurchase Price, as the case may be, shall be so paid pursuant to this Section 3.4(b) only if convert the Securities so delivered with respect to which the Paying Agent shall conform in all respects to the description thereof in the related Repurchase Notice or Fundamental Change Repurchase Notice. In the case of a repurchase right pursuant to Section 3.1 and Section 3.2, such delivery is being exercised shall be at any time from the opening of business on the date that is 20 Business Days prior to the Repurchase Date continue until the close of business on the second Business Day immediately preceding the Repurchase Date.
(c) In the event a repurchase right shall be exercised in accordance with the terms hereof, the Company shall pay or cause to be paid to the Trustee the Repurchase Price in cash or shares of Common Stock, as provided above, for payment to the Holder on the Repurchase Date or, if shares of Common Stock are to be paid, as promptly after the Repurchase Date as practicable, together with accrued and unpaid interest to the Repurchase Date payable with respect to the Securities as to which the purchase right has been exercised; provided, however, that installments of interest that mature on or prior to the Repurchase Date shall be payable in cash to the Holders of such Securities, or one or more Predecessor Securities, registered as such at the Fundamental Change close of business on the relevant Regular Record Date.
(d) If any Security (or portion thereof) surrendered for repurchase shall not be so paid on the Repurchase Date, the principal amount of such Security (or portion thereof, as the case may be) shall, subject until paid, bear interest to extension the extent permitted by applicable law from the Repurchase Date at the rate then in effect per annum, and each Security shall remain convertible into Common Stock until the principal of such Security (or portion thereof, as the case may be) shall have been paid or duly provided for.
(e) Any Security that is to comply with be repurchased only in part shall be surrendered to the Trustee (with, if the Company or the Trustee so requires, due endorsement by, or a written instrument of transfer in form satisfactory to the Company and the Trustee duly executed by, the Holder thereof or his attorney duly authorized in writing), and the Company shall execute, and the Trustee shall authenticate and make available for delivery to the Holder of such Security without service charge, a new Security or Securities, containing identical terms and conditions, each in an authorized denomination in aggregate principal amount equal to and in exchange for the unrepurchased portion of the principal of the Security so surrendered.
(f) Any issuance of shares of Common Stock in respect of the Repurchase Price shall be deemed to have been effected immediately prior to the close of business on the Repurchase Date and the Person or Persons in whose name or names any certificate or certificates for shares of Common Stock shall be issuable upon such repurchase shall be deemed to have become on the Repurchase Date the holder or holders of record of the shares represented thereby; provided, however, that any surrender for repurchase on a date when the stock transfer books of the Company shall be closed shall constitute the Person or Persons in whose name or names the certificate or certificates for such shares are to be issued as the record holder or holders thereof for all purposes at the opening of business on the next succeeding day on which such stock transfer books are open. No payment or adjustment shall be made for dividends or distributions on any Common Stock issued upon repurchase of any Security declared prior to the Repurchase Date.
(g) No fractions of shares shall be issued upon repurchase of Securities. If more than one Security shall be repurchased from the same Holder and the Repurchase Price shall be payable in shares of Common Stock, the number of full shares that shall be issuable upon such repurchase shall be computed on the basis of the aggregate principal amount of the Securities so repurchased. Instead of any fractional share of Common Stock that would otherwise be issuable on the repurchase of any Security or Securities, the Company will deliver to the applicable lawHolder its check for the current market value of such fractional share. Owners The current market value of beneficial interests in Global a fraction of a share is determined by multiplying the current market price of a full share by the fraction and rounding the result to the nearest cent. For purposes of this Section 12.3, the current market price of a share of Common Stock is the average of the high and low sales price per Share of the Common Stock on the Trading Day immediately preceding the Repurchase Date.
(h) Any issuance and delivery of certificates for shares of Common Stock on repurchase of Securities shall provide a Repurchase Notice be made without charge to the Holder of Securities being repurchased for such certificates or Fundamental Change Repurchase Notice for any tax or duty in accordance with the Applicable Procedures respect of the Depositaryissuance or delivery of such certificates or the securities represented thereby; provided, however, that the Company shall not be required to pay any tax or duty that may be payable in respect of (1) income of the Holder or (2) any transfer involved in the issuance or delivery of certificates for shares of Common Stock in a name other than that of the Holder of the Securities being repurchased, and no such issuance or delivery shall be made unless and until the Person requesting such issuance or delivery has paid to the Company the amount of any such tax or duty or has established, to the satisfaction of the Company, that such tax or duty has been paid.
(i) All Securities delivered for repurchase shall be delivered to the Trustee to be canceled at the direction of the Trustee, which shall dispose of the same as provided in Section 2.10. ARTICLE THIRTEEN
Appears in 1 contract
Samples: Indenture (Asm International N V)
Notices; Method of Exercising Repurchase Right, Etc. (a) Unless the Company shall have theretofore called for redemption all of the outstanding Outstanding Securities, on or before the date that is 30 Business Days after the occurrence of a Change in Control, the Company shall give notice to the Trustee, the Paying Agent and all Holders of Securities, in the manner provided in this Section 3.4, a notice containing the information required pursuant Outstanding Securities and to the following provisions of this Section 3.4(a) Trustee (the "Company Notice") (i) on or before the 20th Business Day prior to the Repurchase Date or, in the event of a Fundamental Change arising from a Change of Control, the anticipated Effective Date (but in no event earlier than 45 days prior to the Repurchase Date or anticipated Effective Date, as the case may be), and (ii) within 15 Business Days after the Company knows or reasonably should know of the occurrence of a Fundamental the Change that arises in Control and of the repurchase right set forth herein arising as a result of any Termination of Trading. Prior to or concurrently with the delivery of any Company Notice, the Company will issue a press release or publish such information on the Company's then existing website including the information required to be included in such Company Notice hereunder. The Company shall also deliver a copy of any Company Notice to the Trustee. At the request and expense of the Company on or before the fifth Business Day prior to the date on which the Company Notice is to be mailed, the Trustee shall provide the Company Notice to the Holders in accordance with the provisions of this Indenturethereof. Each Company Notice shall state:
(i) the Repurchase Date or date of such Change in Control and, briefly, the Fundamental events causing such Change Repurchase Date, as the case may be,in Control;
(ii) the date by which the repurchase right Change in Control Purchase Notice (as defined below) must be exercised,delivered;
(iii) the Repurchase Price or Date;
(iv) the Fundamental Change Repurchase Price, as the case may be, and whether the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, shall be paid by the Company in cash or by delivery of shares of Common Stock, or a specified combination thereof and the percentage of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, that will be paid in shares of Common Stock (which indication shall be irrevocable, subject to the satisfaction (or waiver) of the conditions set forth in Section 3.3),
(iv) if the notice relates to the occurrence of a Fundamental Change, the events causing the Fundamental Change and the date of the Fundamental Change,;
(v) that Securities with respect to which a Holder gives a Repurchase Notice or Fundamental Change Repurchase Notice may be converted only if the Holder withdraws the Repurchase Notice or Fundamental Change Repurchase Notice as to such Securities in accordance with the terms of this Indenture,
(vi) a description of the procedure that a Holder must follow to exercise a repurchase right, and ;
(vi) the procedures for withdrawing a Change in Control Purchase Notice;
(vii) the place or places where such Securities are to be surrendered for payment of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, and accrued but unpaid interest (and Liquidated Damages), if any, to, but excluding, the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be,
(vii) that on the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be, the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, and accrued but unpaid interest (and Liquidated Damages), if any, to, but excluding, the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be, will become due and payable upon each such Security designated by the Holder to be repurchased, and that interest thereon shall cease to accrue on and after said date,for conversion;
(viii) briefly, the Conversion Price then in effect,conversion rights of Holders of Securities;
(ix) the place or places that the Security certificate (including the Election of Holder to Require Repurchase attached Conversion Rate and any adjustments thereto) and the Repurchase Notice (as defined below) shall be delivered, ; and, if the Security is a Restricted Security, the place or places that the Transfer Certificate in the form set forth in Exhibit C, required by Section 2.12 shall be delivered,
(x) that Holders who want to convert Securities must satisfy the name and address of the Paying Agent and Conversion Agent, and
(xi) if the notice relates to a Fundamental Change, the estimated amount of any Make-Whole Premium and the respective percentages of such Make-Whole Premium that will be paid (as contemplated by Section 6.1(b)) in shares of Common Stock and in cash (which indication shall be irrevocable), subject to the satisfaction (or waiver) of the conditions requirements set forth in Section 6.1(c)the Securities. 52 Promptly after giving the Company Notice to the Holders of Outstanding Securities and to the Trustee, in the event that Company shall cause a Holder should, in lieu of electing to have Securities repurchased on the Fundamental Change Repurchase Date, elect to convert such Securities during the Fundamental Change Conversion Period, and
(xii) any other information to be included therein pursuant to Section 6.1. No failure copy of the Company Notice to give the foregoing notices be published in The Wall Street Journal or defect therein shall limit any Holder's right to exercise a repurchase right or affect the validity another daily newspaper of the proceedings for the repurchase of Securities. If any of the foregoing provisions or other provisions of this Article III are inconsistent with applicable law, such law shall governnational circulation.
(b) If any Senior Indebtedness is outstanding at the time of the occurrence of a Change in Control, and such Senior Indebtedness prohibits by its terms the Company's repurchase of its Securities upon the occurrence of a Change in Control, the Company shall prior to giving the Company Notice either:
(i) repay in full all obligations and terminate all commitments under or in respect of all such Senior Indebtedness or offer to repay in full all obligations and terminate all commitments under or in respect of all such Senior Indebtedness and repay such Senior Indebtedness owed to each holder thereof who has accepted such offer; or
(ii) obtain the requisite consents under all such Senior Indebtedness to permit the Company to repurchase the Securities in accordance herewith.
(c) To exercise a repurchase right pursuant to Section 3.1 or Section 3.2right, a Holder shall must deliver to the Trustee or a Paying Agent at an office or agency maintained by the Company for such purpose in the Borough of Manhattan, The City of New York, prior to the close of business on or before the Repurchase Date, (i) written notice (in the case of a repurchase pursuant to Section 3.1, a "Repurchase Notice" and, in the case of a repurchase pursuant to Section 3.2, a "Fundamental Change Repurchase Notice") of the Holder's exercise of such rightright (the "Change in Control Purchase Notice"), which notice shall set forth (A) the name of the Holder, (B) the certificate numbers of the Securities with respect to which the repurchase right is being exercised, (C) the principal amount of the Securities to be repurchased (and, if any Security is to be repurchased in part, the portion of the principal amount thereof to be repurchased (repurchased, which portion must shall be in principal amounts of $1,000 or a whole multiple integral multiples of $1,000) and the name of the Person in which the portion thereof to remain outstanding after such repurchase is to be registered), if certificated, the certificate numbers of the Securities to be repurchased, and (D) a statement that an election to exercise the repurchase right is being made thereby pursuant to the terms and conditions specified in applicable provisions of the Securities and (ii) surrender the Indenture is being made thereby, and, Securities subject to the Change in Control Purchase Notice.
(d) Unless the event that any portion of Company has elected to pay the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, shall be paid in by delivery of shares of Common Stock, on or prior to the Repurchase Date the Company shall deposit with the Trustee or with the Paying Agent (or, if the Company is acting as its own Paying Agent, segregate and hold in trust as provided in Section 9.03) an amount of money sufficient to pay the Repurchase ---- Price of the Securities that are to be repaid on the Repurchase Date. On the Repurchase Date, the Trustee or a Paying Agent (or, if the Company is acting as its own Paying Agent, the Company) shall deliver, on behalf of the Company, the Repurchase Price for all such Securities validly tendered prior to such date. In the event that a Holder has previously delivered a Change in Control Purchase Notice, but failed to surrender the Security with respect to which such Change in Control Purchase Notice relates, then so long as either (i) the Company has elected to pay the Repurchase Price by delivery of shares of Common Stock or (ii) the Trustee or the Paying Agent holds (or, if the Company is acting as its own Paying Agent, the Company segregates and holds in trust as provided in Section 9.03) money sufficient to pay the Repurchase Price in ---- respect of such Security, then such Security shall cease to be Outstanding for the purposes of this Indenture on the Repurchase Date and all rights of the Holder thereof other than the right to receive the Repurchase Price shall terminate.
(e) If any Security (or portion thereof) surrendered for repurchase shall not have been repurchased on the Business Day following the Repurchase Date, the Repurchase Price in respect of such Security shall, until paid, bear interest from the Business Day following the Repurchase Date at the rate borne by the Security and such Security shall remain convertible into Common Stock until the Repurchase Price and any such accrued interest shall have been paid or duly provided for.
(f) Any Security that is to be repurchased only in part shall be surrendered to the Trustee or any such Paying Agent (or if the Company is acting as its own Paying Agent, the Company) and the Company shall execute, and the Trustee shall authenticate and deliver to the Holder of such Security without service charge, a new Security or Securities, containing identical terms and conditions, each in an authorized denomination in aggregate principal amount equal to and in exchange for the portion of the principal of the Security so surrendered that was not repurchased.
(g) Any Holder that has delivered a Change in Control Purchase Notice shall have the right to withdraw such notice by delivery of a written notice of withdrawal to the Trustee or any such Paying Agent prior to the close of business on the Business Day immediately preceding the Repurchase Date. The notice of withdrawal shall state the principal amount and the certificate numbers of the Securities as to which the withdrawal notice relates and the principal amount, if any, that remains subject to the Change in Control Purchase Notice. A Security in respect of which a Holder has exercised its right to require repurchase upon a Change in Control may thereafter be converted into Common Stock only if, and at such time as, such Holder withdraws its Change in Control Purchase Notice in accordance with the preceding sentence.
(h) Any issuance of shares of Common Stock in respect of the Repurchase Price shall be deemed to have been effected immediately prior to the close of business on the Repurchase Date and the Person or Persons in whose name or names (with addresses) in which the any certificate or certificates for shares of Common Stock shall be issuedissuable upon such repurchase shall be deemed to have become on the Repurchase Date the holder or holders of record of the shares represented thereby.
(i) No fractional shares of Common Stock or scrip representing fractional shares shall be issued upon repurchase of Securities. If more than one Security shall be repurchased from the same Holder and the Repurchase Price shall be payable in shares of Common Stock, and (ii) the number of full shares that shall be issued upon repurchase shall be computed on the basis of the aggregate principal amount of the Securities (or specified portions thereof to the extent permitted hereby) so repurchased from such Holder. If any fractional share of stock otherwise would be issuable upon repurchase of any Security or Securities, the Company shall make an adjustment therefor by paying to the Holder thereof an amount of cash calculated at the price per share at which the Repurchase Notice or Fundamental Change Repurchase Notice relates at any time after delivery Common Stock is valued for purposes of the Repurchase Notice or the Fundamental Change Repurchase Notice, as the case may Section 11.01. -----
(j) The issue of stock certificates on repurchase of Securities shall be (together with all necessary endorsements), at the offices of the Paying Agent, such delivery being a condition made without charge to receipt by the Holder of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, thereof; provided, however, that such Repurchase Price or Fundamental Change Repurchase Price, as the case may be, shall be so paid pursuant to this Section 3.4(b) only if the Securities so delivered to the Paying Agent shall conform being repurchased for any tax in all respects to the description thereof in the related Repurchase Notice or Fundamental Change Repurchase Notice. In the case of a repurchase right pursuant to Section 3.1 and Section 3.2, such delivery shall be at any time from the opening of business on the date that is 20 Business Days prior to the Repurchase Date until the close of business on the second Business Day prior to the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be, subject to extension to comply with applicable law. Owners of beneficial interests in Global Securities shall provide a Repurchase Notice or Fundamental Change Repurchase Notice in accordance with the Applicable Procedures respect of the Depositary.issue
Appears in 1 contract
Samples: Indenture (Interliant Inc)
Notices; Method of Exercising Repurchase Right, Etc. (a) Unless the Company shall have theretofore called for redemption all of the outstanding Outstanding Securities, the Company shall give to the Trustee, the Paying Agent and all Holders of Securities, in the manner provided in this Section 3.4, a notice containing the information required pursuant to the following provisions of this Section 3.4(a) (the "Company Notice") (i) on or before the 20th Business Day prior to the Repurchase Date or, in the event of a Fundamental Change arising from a Change of Control, the anticipated Effective Date (but in no event earlier than 45 days prior to the Repurchase Date or anticipated Effective Date, as the case may be), and (ii) within 15 Business Days 30th day after the Company knows or reasonably should know of the occurrence of a Fundamental Change that arises as a result of any Termination of Trading. Prior to or concurrently with the delivery of any Company Noticein Control, the Company will issue a press release or publish such information on the Company's then existing website including the information required to be included in such Company Notice hereunder. The Company shall also deliver a copy of any Company Notice to the Trustee. At or, at the request and expense of the Company on or before the fifth Business Day prior 30th day after such occurrence, the Trustee, shall give to all Holders of Securities, in the manner provided in Section 1.6, notice (the ----------- "Company Notice") of the occurrence of the Change of Control and of the repurchase right set forth herein arising as a result thereof. The Company shall also deliver a copy of such notice of a repurchase right to the date on which the Company Notice is to be mailed, the Trustee shall provide the Company Notice to the Holders in accordance with the provisions of this IndentureTrustee. Each Company Notice notice of a repurchase right shall state:
(i1) the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be,
(ii2) the date by which the repurchase right must be exercised,
(iii3) the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, and whether the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, shall be paid by the Company in cash or by delivery of shares of Common Stock, or a specified combination thereof and the percentage of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, that will be paid in shares of Common Stock (which indication shall be irrevocable, subject to the satisfaction (or waiver) of the conditions set forth in Section 3.3),
(iv) if the notice relates to the occurrence of a Fundamental Change, the events causing the Fundamental Change and the date of the Fundamental Change,
(v) that Securities with respect to which a Holder gives a Repurchase Notice or Fundamental Change Repurchase Notice may be converted only if the Holder withdraws the Repurchase Notice or Fundamental Change Repurchase Notice as to such Securities in accordance with the terms of this Indenture,
(vi4) a description of the procedure that which a Holder must follow to exercise a repurchase right, and the place or places where such Securities Securities, are to be surrendered for payment of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, and accrued but unpaid interest (and Liquidated Damages)interest, if any, to, but excluding, the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be,
(vii5) that on the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be, the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, and accrued but unpaid interest (and Liquidated Damages)interest, if any, to, but excluding, the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be, will become due and payable upon each such Security designated by the Holder to be repurchased, and that interest thereon shall cease to accrue on and after said date,
(viii6) the Conversion Price Rate then in effect, the date on which the right to convert the principal amount of the Securities to be repurchased will terminate and the place or places where such Securities may be surrendered for conversion,
(ix7) the place or places that the Security certificate (including the Notice of Election of Holder to To Require Repurchase attached thereto) and the Repurchase Notice (as defined below) provided in Section 2.2 shall be delivered, and, if the Security is a Restricted Security, the place or places that the Transfer Certificate in and the form set forth in Exhibit C, required by Section 2.12 shall be delivered,
(x) the name and address of the Paying Agent and Conversion Agentsuch ----------- Notice, and
(xi) if 8) the notice relates to a Fundamental Change, the estimated amount of any Make-Whole Premium and the respective percentages Cusip number or numbers of such Make-Whole Premium that will be paid (as contemplated by Section 6.1(b)) in shares of Common Stock and in cash (which indication shall be irrevocable), subject to the satisfaction (or waiver) of the conditions set forth in Section 6.1(c), in the event that a Holder should, in lieu of electing to have Securities repurchased on the Fundamental Change Repurchase Date, elect to convert such Securities during the Fundamental Change Conversion Period, and
(xii) any other information to be included therein pursuant to Section 6.1Securities. No failure of the Company to give the foregoing notices or defect therein shall limit any Holder's right to exercise a repurchase right or affect the validity of the proceedings for the repurchase of Securities. If any of the foregoing provisions or other provisions of this Article III are inconsistent with applicable law, such law shall govern.
(b) To exercise a repurchase right pursuant to Section 3.1 or Section 3.2right, a Holder shall deliver to the Paying Agent Trustee on or before the 30th day after the date of the Company Notice (i) written notice (in the case of a repurchase pursuant to Section 3.1, a "Repurchase Notice" and, in the case of a repurchase pursuant to Section 3.2, a "Fundamental Change Repurchase Notice") of the Holder's exercise of such right, which notice shall set forth the name of the Holder, the principal amount of the Securities to be repurchased (and, if any Security is to repurchased in part, the serial number thereof, the portion of the principal amount thereof to be repurchased (which portion must be in principal amounts of $1,000 or a whole multiple of $1,000) and the name of the Person in which the portion thereof to remain outstanding Outstanding after such repurchase is to be registered), if certificated, the certificate numbers of the Securities to be repurchased, ) and a statement that an election to exercise the repurchase right pursuant to the terms and conditions specified in the Securities and the Indenture is being made thereby, and, in the event that any portion of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, shall be paid in shares of Common Stock, the name or names (with addresses) in which the certificate or certificates for shares of Common Stock shall be issued, and (ii) the Securities with respect to which the Repurchase Notice or Fundamental Change Repurchase Notice relates at any time after delivery repurchase right is being exercised. Such written notice shall be irrevocable, except that the right of the Repurchase Notice or the Fundamental Change Repurchase Notice, as the case may be (together with all necessary endorsements), at the offices of the Paying Agent, such delivery being a condition Holder to receipt by the Holder of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, thereof; provided, however, that such Repurchase Price or Fundamental Change Repurchase Price, as the case may be, shall be so paid pursuant to this Section 3.4(b) only if convert the Securities so delivered with respect to which the Paying Agent shall conform in all respects to the description thereof in the related Repurchase Notice or Fundamental Change Repurchase Notice. In the case of a repurchase right pursuant to Section 3.1 and Section 3.2, such delivery is being exercised shall be at any time from the opening of business on the date that is 20 Business Days prior to the Repurchase Date continue until the close of business on the second Business Day Repurchase Date.
(c) In the event a repurchase right shall be exercised in accordance with the terms hereof, the Company shall pay or cause to be paid to the Trustee the Repurchase Price in cash or shares of Common Stock, as provided above, for payment to the Holder on the Repurchase Date or, if shares of Common Stock are to be paid, as promptly after the Repurchase Date as practicable, together with accrued and unpaid interest to the Repurchase Date payable with respect to the Securities as to which the purchase right has been exercised; provided, however, -------- ------- that installments of interest that mature on or prior to the Repurchase Date shall be payable in cash to the Holders of such Securities, or one or more Predecessor Securities, registered as such at the Fundamental Change close of business on the relevant Regular Record Date.
(d) If any Security (or portion thereof) surrendered for repurchase shall not be so paid on the Repurchase Date, the principal amount of such Security (or portion thereof, as the case may be) shall, subject until paid, bear interest to extension the extent permitted by applicable law from the Repurchase Date at the rate of 4.50% per annum, and each Security shall remain convertible into Common Stock until the principal of such Security (or portion thereof, as the case may be) shall have been paid or duly provided for.
(e) Any Security which is to comply with be repurchased only in part shall be surrendered to the Trustee (with, if the Company or the Trustee so requires, due endorsement by, or a written instrument of transfer in form satisfactory to the Company and the Trustee duly executed by, the Holder thereof or his attorney duly authorized in writing), and the Company shall execute, and the Trustee shall authenticate and make available for delivery to the Holder of such Security without service charge, a new Security or Securities, containing identical terms and conditions, each in an authorized denomination in aggregate principal amount equal to and in exchange for the unrepurchased portion of the principal of the Security so surrendered.
(f) Any issuance of shares of Common Stock in respect of the Repurchase Price shall be deemed to have been effected immediately prior to the close of business on the Repurchase Date and the Person or Persons in whose name or names any certificate or certificates for shares of Common Stock shall be issuable upon such repurchase shall be deemed to have become on the Repurchase Date the holder or holders of record of the shares represented thereby; provided, however, that any surrender for repurchase on a date when the stock -------- ------- transfer books of the Company shall be closed shall constitute the Person or Persons in whose name or names the certificate or certificates for such shares are to be issued as the record holder or holders thereof for all purposes at the opening of business on the next succeeding day on which such stock transfer books are open. No payment or adjustment shall be made for dividends or distributions on any Common Stock issued upon repurchase of any Security declared prior to the Repurchase Date.
(g) No fractions of shares shall be issued upon repurchase of Securities. If more than one Security shall be repurchased from the same Holder and the Repurchase Price shall be payable in shares of Common Stock, the number of full shares which shall be issuable upon such repurchase shall be computed on the basis of the aggregate principal amount of the Securities so repurchased. Instead of any fractional share of Common Stock which would otherwise be issuable on the repurchase of any Security or Securities, the Company will deliver to the applicable lawHolder its check for the current market value of such fractional share. Owners The current market value of beneficial interests in Global a fraction of a share is determined by multiplying the current market price of a full share by the fraction, and rounding the result to the nearest cent. For purposes of this Section, the current market price of a share of Common Stock is the Closing Price Per Share of the Common Stock on the Trading Day immediately preceding the Repurchase Date.
(h) Any issuance and delivery of certificates for shares of Common Stock on repurchase of Securities shall provide a Repurchase Notice be made without charge to the Holder of Securities being repurchased for such certificates or Fundamental Change Repurchase Notice for any tax or duty in accordance with the Applicable Procedures respect of the Depositaryissuance or delivery of such certificates or the securities represented thereby; provided, however, that the Company shall not be required -------- ------- to pay any tax or duty which may be payable in respect of (i) income of the Holder or (ii) any transfer involved in the issuance or delivery of certificates for shares of Common Stock in a name other than that of the Holder of the Securities being repurchased, and no such issuance or delivery shall be made unless and until the Person requesting such issuance or delivery has paid to the Company the amount of any such tax or duty or has established, to the satisfaction of the Company, that such tax or duty has been paid.
(i) All Securities delivered for repurchase shall be delivered to the Trustee to be canceled at the direction of the Trustee, which shall dispose of the same as provided in Section 3.9. -----------
Appears in 1 contract
Notices; Method of Exercising Repurchase Right, Etc. (a1) Unless the Company shall have theretofore called for redemption all of the outstanding Outstanding Securities, on or before the 30th day after the occurrence of a Change in Control, the Company or, at the request (and expense) of the Company given to the Trustee on or before the 15th day after such occurrence, the Trustee, shall give to the Trustee, the Paying Agent and all Holders of Securities, in the manner provided in this Section 3.41.6, a notice containing the information required pursuant to the following provisions of this Section 3.4(a) (the "Company Notice") (i) on or before the 20th Business Day prior to the Repurchase Date or, in the event of a Fundamental Change arising from a Change of Control, the anticipated Effective Date (but in no event earlier than 45 days prior to the Repurchase Date or anticipated Effective Date, as the case may be), and (ii) within 15 Business Days after the Company knows or reasonably should know of the occurrence of a Fundamental the Change that arises of Control and of the repurchase right set forth herein arising as a result of any Termination of Trading. Prior to or concurrently with the delivery of any Company Notice, thereof and the Company will shall issue a press release or publish such information on the Company's then existing website Press Release including the all relevant information required to be included in such Company Notice hereunderNotice. The Company shall also deliver a copy of any such Company Notice to the Trustee. At the request and expense of the Company on or before the fifth Business Day prior to the date on which the Company Notice is to be mailed, the Trustee shall provide the Company Notice to the Holders in accordance with the provisions of this Indenture. Each Company Notice shall state:
(i) the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be,
(ii) the date by which the repurchase right must be exercised,
(iii) the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, and whether the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, shall be paid by the Company in cash or by delivery of shares of Common Stock, Stock or a specified combination thereof (and the percentage applicable ratio of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, that will be paid in shares of cash and Common Stock (which indication shall be irrevocable, subject to the satisfaction (or waiver) of the conditions set forth in Section 3.3Stock),
(iv) if the notice relates to the occurrence of a Fundamental Change, the events causing the Fundamental Change and the date of the Fundamental Change,
(v) that Securities with respect to which a Holder gives a Repurchase Notice or Fundamental Change Repurchase Notice may be converted only if the Holder withdraws the Repurchase Notice or Fundamental Change Repurchase Notice as to such Securities in accordance with the terms of this Indenture,
(vi) a description of the procedure that a Holder must follow to exercise a repurchase right, and the place or places where such Securities are to be surrendered for payment of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, and accrued but unpaid interest (and including Liquidated Damages, if any), if any, to, but excluding, any to the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be,
(viiv) that on the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be, the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, and accrued but unpaid interest (and including Liquidated Damages, if any), if any, to, but excluding, any to the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be, will become due and payable upon each such Security designated by the Holder to be repurchased, and that interest thereon shall cease to accrue on and after said date,
(viiivi) the Conversion Price Rate then in effect, the date on which the right to convert the principal amount of the Securities to be repurchased will terminate and the place or places where such Securities may be surrendered for conversion,
(ixvii) the place or places that the Security certificate (including with the Election of Holder to Require Repurchase attached thereto) as specified in Section 2.2 shall be delivered, and if the Repurchase Notice (as defined belowSecurity is a Restricted Securities certificate the place or places that the Surrender Certificate required by Section 13.3(9) shall be delivered, and, if the Security is a Restricted Security, the place or places that the Transfer Certificate in the form set forth in Exhibit C, required by Section 2.12 shall be delivered,
(xviii) the name and address of the Paying Agent and Conversion Agent, and
(xi) if the notice relates to a Fundamental Change, the estimated amount of any Make-Whole Premium and the respective percentages CUSIP number or numbers of such Make-Whole Premium that will be paid (as contemplated by Section 6.1(b)) in shares of Common Stock and in cash (which indication shall be irrevocable), subject to the satisfaction (or waiver) of the conditions set forth in Section 6.1(c), in the event that a Holder should, in lieu of electing to have Securities repurchased on the Fundamental Change Repurchase Date, elect to convert such Securities during the Fundamental Change Conversion Period, and
(xii) any other information to be included therein pursuant to Section 6.1Securities. No failure of the Company to give the foregoing notices or defect therein shall limit any Holder's ' s right to exercise a repurchase right or affect the validity of the proceedings for the repurchase of Securities. If any of the foregoing provisions or other provisions of this Article III XIII are inconsistent with applicable law, such law shall govern.
(b2) To exercise a repurchase right pursuant to Section 3.1 or Section 3.2right, a Holder shall deliver to the Paying Agent Trustee on or before the 30th day after the date of the Company Notice (i) irrevocable written notice (in the case of a repurchase pursuant to Section 3.1, a "Repurchase Notice" and, in the case of a repurchase pursuant to Section 3.2, a "Fundamental Change Repurchase Notice") of the Holder's exercise of such right, which notice shall set forth the name of the Holder, the principal amount of the Securities to be repurchased (and, if any Security is to repurchased in part, the serial number thereof, the portion of the principal amount thereof to be repurchased (which portion must be in principal amounts of $1,000 or a whole multiple of $1,000) and the name of the Person in which the portion thereof to remain outstanding Outstanding after such repurchase is to be registered), if certificated, the certificate numbers of the Securities to be repurchased, ) and a statement that an election to exercise the repurchase right pursuant to the terms and conditions specified in the Securities and the Indenture is being made thereby, and, in the event that any portion of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, shall be paid in shares of Common Stock, the name or names (with addresses) in which the certificate or certificates for shares of Common Stock shall be issued, and (ii) the Securities with respect to which the Repurchase Notice or Fundamental Change Repurchase Notice relates at any time after delivery repurchase right is being exercised. Such written notice shall be irrevocable, except that the right of the Repurchase Notice or the Fundamental Change Repurchase Notice, as the case may be (together with all necessary endorsements), at the offices of the Paying Agent, such delivery being a condition Holder to receipt by the Holder of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, thereof; provided, however, that such Repurchase Price or Fundamental Change Repurchase Price, as the case may be, shall be so paid pursuant to this Section 3.4(b) only if convert the Securities so delivered with respect to which the Paying Agent shall conform in all respects to the description thereof in the related Repurchase Notice or Fundamental Change Repurchase Notice. In the case of a repurchase right pursuant to Section 3.1 and Section 3.2, such delivery is being exercised shall be at any time from the opening of business on the date that is 20 Business Days prior to the Repurchase Date continue until the close of business on the second Business Day immediately preceding the Repurchase Date.
(3) In the event a repurchase right shall be exercised in accordance with the terms hereof, the Company shall pay or cause to be paid to the Trustee the Repurchase Price in cash or shares of Common Stock or a combination thereof, as provided above, for payment to the Holder on the Repurchase Date or, if shares of Common Stock are to be paid, on the date that is 45 days after the date of the Company's Notice, together with accrued and unpaid interest to the Repurchase Date payable with respect to the Securities as to which the repurchase right has been exercised; provided, however, that installments of interest that mature on or prior to the Repurchase Date shall be payable in cash to the Holders of such Securities, or one or more Predecessor Securities, registered as such at the Fundamental Change close of business on the relevant Regular Record Date.
(4) If any Security (or portion thereof) surrendered for repurchase shall not be so paid on the Repurchase Date, the principal amount of such Security (or portion thereof, as the case may be) shall, subject until paid, bear interest to extension the extent permitted by applicable law from the Repurchase Date at the rate then in effect per annum, and each Security shall remain convertible into Common Stock until the principal of such Security (or portion thereof, as the case may be) shall have been paid or duly provided for.
(5) Any Security that is to comply with be repurchased only in part shall be surrendered to the Trustee (with, if the Company or the Trustee so requires, due endorsement by, or a written instrument of transfer in form satisfactory to the Company and the Trustee duly executed by, the Holder thereof or his attorney duly authorized in writing), and the Company shall execute, and the Trustee shall authenticate and make available for delivery to the Holder of such Security without service charge, a new Security or Securities, containing identical terms and conditions, each in an authorized denomination in aggregate principal amount equal to and in exchange for the unrepurchased portion of the principal of the Security so surrendered.
(6) Any issuance of shares of Common Stock in respect of any portion of the Repurchase Price shall be deemed to have been effected immediately prior to the close of business on the Repurchase Date and the Person or Persons in whose name or names any certificate or certificates for shares of Common Stock shall be issuable upon such repurchase shall be deemed to have become on the Repurchase Date the holder or holders of record of the shares represented thereby; provided, however, that any surrender for repurchase on a date when the stock transfer books of the Company shall be closed shall constitute the Person or Persons in whose name or names the certificate or certificates for such shares are to be issued as the record holder or holders thereof for all purposes at the opening of business on the next succeeding day on which such stock transfer books are open. No payment or adjustment shall be made for dividends or distributions on any Common Stock issued upon repurchase of any Security declared prior to the Repurchase Date.
(7) No fractions of shares shall be issued upon repurchase of Securities. If more than one Security shall be repurchased from the same Holder and any portion of the Repurchase Price shall be payable in shares of Common Stock, the number of full shares that shall be issuable upon such repurchase shall be computed on the basis of the aggregate principal amount of the Securities so repurchased. Instead of any fractional share of Common Stock that would otherwise be issuable on the repurchase of any Security or Securities, the Company will deliver to the applicable lawHolder its check for the current market value of such fractional share. Owners The current market value of beneficial interests in Global a fraction of a share is determined by multiplying the current market price of a full share by the fraction, and rounding the result to the nearest cent. For purposes of this Section, the current market price of a share of Common Stock is the Closing Price Per Share of the Common Stock on the Trading Day immediately preceding the Repurchase Date.
(8) Any issuance and delivery of certificates for shares of Common Stock on repurchase of Securities shall provide be made without charge to the Holder of Securities being repurchased for such certificates or for any tax or duty in respect of the issuance or delivery of such certificates or the securities represented thereby; provided, however, that the Company shall not be required to pay any tax or duty that may be payable in respect of (i) income of the Holder or (ii) any transfer involved in the issuance or delivery of certificates for shares of Common Stock in a Repurchase Notice name other than that of the Holder of the Securities being repurchased, and no such issuance or Fundamental Change Repurchase Notice delivery shall be made unless and until the Person requesting such issuance or delivery has paid to the Company the amount of any such tax or duty or has established, to the satisfaction of the Company, that such tax or duty has been paid.
(9) If shares of Common Stock to be delivered upon repurchase of a Security are to be registered in accordance a name other than that of the beneficial owner of such Security, then such Holder must deliver to the Trustee a Surrender Certificate, dated the date of surrender of such Restricted Security and signed by such beneficial owner, as to compliance with the Applicable Procedures restrictions on transfer applicable to such Restricted Security. Neither the Trustee nor any Registrar or Transfer Agent or other agents shall be required to register in a name other than that of the Depositarybeneficial owner shares of Common Stock issued upon repurchase of any such Restricted Security not so accompanied by a properly completed Surrender Certificate.
(10) All Securities delivered for repurchase shall be delivered to the Trustee to be canceled at the direction of the Trustee, which shall dispose of the same as provided in Section 3.9.
Appears in 1 contract
Samples: Indenture (Medarex Inc)
Notices; Method of Exercising Repurchase Right, Etc. (a) Unless the Company shall have theretofore called for redemption all of the outstanding SecuritiesSecurities pursuant to Article III, on or before the 15th day after the occurrence of a Change in Control, the Company or, at the written request of the Company on or before the 10th day after receipt of such request, the Trustee shall give to the Trustee, the Paying Agent and all Holders holders of Securities, in the manner provided in this Section 3.4, a Securities notice containing the information required pursuant to the following provisions of this Section 3.4(a) (the "Company Notice") (i) on or before the 20th Business Day prior to the Repurchase Date or, in the event of a Fundamental Change arising from a Change of Control, the anticipated Effective Date (but in no event earlier than 45 days prior to the Repurchase Date or anticipated Effective Date, as the case may be), and (ii) within 15 Business Days after the Company knows or reasonably should know of the occurrence of a Fundamental the Change that arises in Control and of the repurchase right set forth herein arising as a result of any Termination of Trading. Prior to or concurrently with the delivery of any Company Notice, the Company will issue a press release or publish such information on the Company's then existing website including the information required to be included in such Company Notice hereunderthereof. The Company shall also deliver a copy of any Company Notice such notice of a repurchase right to the Trustee. At the request and expense Each notice of the Company on or before the fifth Business Day prior to the date on which the Company Notice is to be mailed, the Trustee shall provide the Company Notice to the Holders in accordance with the provisions of this Indenture. Each Company Notice a repurchase right shall state:
(i1) the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be,
(ii2) the date by which the repurchase right must be exercised,
(iii3) the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, and whether the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, shall be paid by the Company in cash or by delivery of shares of Common Stock, or a specified combination thereof and the percentage of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, that will be paid in shares of Common Stock (which indication shall be irrevocable, subject to the satisfaction (or waiver) of the conditions set forth in Section 3.3),
(iv) if the notice relates to the occurrence of a Fundamental Change, the events causing the Fundamental Change and the date of the Fundamental Change,
(v) that Securities with respect to which a Holder gives a Repurchase Notice or Fundamental Change Repurchase Notice may be converted only if the Holder withdraws the Repurchase Notice or Fundamental Change Repurchase Notice as to such Securities in accordance with the terms of this Indenture,
(vi4) a description of the procedure that which a Holder holder must follow to exercise a repurchase right, and the place or places where such Securities are to be surrendered for payment of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, and accrued but unpaid interest (and Liquidated Damages), if any, to, but excluding, the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be,
(vii5) that on the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be, the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, and accrued but unpaid interest (and Liquidated Damages), if any, to, but excluding, the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be, will become due and payable upon each such Security designated by the Holder holder to be repurchased, and that interest thereon shall cease to accrue on and after said date,
(viii6) the Conversion Price then in effect,Price, the date on which the right to convert the Securities to be repurchased will terminate and the places where such Securities may be surrendered for conversion, and
(ix7) the place or places that the Security certificate (including the Election where such Securities are to be surrendered for payment of Holder to Require Repurchase attached thereto) and the Repurchase Notice (as defined below) shall be delivered, andPrice and accrued interest, if the Security is a Restricted Security, the place or places that the Transfer Certificate in the form set forth in Exhibit C, required by Section 2.12 shall be delivered,
(x) the name and address of the Paying Agent and Conversion Agent, and
(xi) if the notice relates to a Fundamental Change, the estimated amount of any Make-Whole Premium and the respective percentages of such Make-Whole Premium that will be paid (as contemplated by Section 6.1(b)) in shares of Common Stock and in cash (which indication shall be irrevocable), subject to the satisfaction (or waiver) of the conditions set forth in Section 6.1(c), in the event that a Holder should, in lieu of electing to have Securities repurchased on the Fundamental Change Repurchase Date, elect to convert such Securities during the Fundamental Change Conversion Period, and
(xii) any other information to be included therein pursuant to Section 6.1any. No failure of the Company to give the foregoing notices or defect therein shall limit any Holderholder's right to exercise a repurchase right or affect the validity of the proceedings for the repurchase of Securities. If any of the foregoing provisions or other provisions of this Article III are inconsistent with applicable law, such law shall govern.
(b) To exercise a repurchase right pursuant to Section 3.1 or Section 3.2right, a Holder holder shall deliver to the Paying Agent Trustee or any paying agent on or before the 30th day after the date of the Company Notice (i) written notice (in the case of a repurchase pursuant to Section 3.1, a "Repurchase Notice" and, in the case of a repurchase pursuant to Section 3.2, a "Fundamental Change Repurchase Notice") of the Holderholder's exercise of such right, which notice shall set forth the name of the Holderholder, the principal amount of the Securities to be repurchased (and, if any Security is to be repurchased in part, the serial number thereof, the portion of the principal amount thereof to be repurchased (which portion must be in principal amounts of $1,000 or a whole multiple of $1,000) and the name of the Person in which the portion thereof to remain outstanding after such repurchase is to be registered), if certificated, the certificate numbers of the Securities to be repurchased, ) and a statement that an election to exercise the repurchase right pursuant to the terms and conditions specified in the Securities and the Indenture is being made thereby, and, in the event that any portion of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, shall be paid in shares of Common Stock, the name or names (with addresses) in which the certificate or certificates for shares of Common Stock shall be issued, and (ii) the Securities with respect to which the Repurchase Notice repurchase right is being exercised.
(c) In the event a repurchase right shall be exercised in accordance with the terms hereof, the Company shall pay or Fundamental Change Repurchase Notice relates at any time after delivery of cause to be paid to the Repurchase Notice Trustee or the Fundamental Change Repurchase Notice, as the case may be (together with all necessary endorsements), at the offices of the Paying Agent, such delivery being a condition to receipt by the Holder of paying agent the Repurchase Price in cash, for payment to the holder on the Repurchase Date, together with accrued and unpaid interest to, but excluding, the Repurchase Date payable with respect to the Securities as to which the repurchase right has been exercised.
(d) If any Security (or portion thereof) surrendered for repurchase shall not be so paid on the Fundamental Change Repurchase PriceDate, the principal amount of such Security (or portion thereof, as the case may be) shall, until paid, bear interest from the Repurchase Date at the rate of __% per annum, and each Security shall remain convertible into Common Stock until the principal of such Security (or portion thereof; provided, however, that such Repurchase Price or Fundamental Change Repurchase Price, as the case may be, ) shall have been paid or duly provided for.
(e) Any Security which is to be repurchased only in part shall be so paid pursuant surrendered to this Section 3.4(b) only the Trustee (with, if the Securities Company or the Trustee so requires, due endorsement by, or a written instrument of transfer in form satisfactory to the Company and the Trustee duly executed by, the holder thereof or his attorney duly authorized in writing), and the Company shall execute, and the Trustee shall authenticate and deliver to the holder of such Security without service charge, a new Security or Securities, containing identical terms and conditions, each in an authorized denomination in aggregate principal amount equal to and in exchange for the portion of the principal of the Security so surrendered that was not repurchased.
(f) Any holder that has delivered to the Paying Agent Trustee its written notice exercising its right to require the Company to repurchase its Securities upon a Change in Control shall conform in all respects have the right to the description thereof in the related Repurchase Notice or Fundamental Change Repurchase Notice. In the case of a repurchase right pursuant to Section 3.1 and Section 3.2, withdraw such delivery shall be notice at any time from the opening of business on the date that is 20 Business Days prior to the Repurchase Date until the close of business on the second Business Day Repurchase Date by delivery of a written notice of withdrawal to the Trustee prior to the Repurchase Date or the Fundamental close of business on such date. A Security in respect of which a holder is exercising its option to require repurchase upon a Change Repurchase Date, as the case in Control may be, subject to extension to comply be converted into Common Stock in accordance with applicable law. Owners of beneficial interests in Global Securities shall provide a Repurchase Notice or Fundamental Change Repurchase Notice Article XV only if such holder withdraws its notice in accordance with the Applicable Procedures of the Depositarypreceding sentence.
Appears in 1 contract
Notices; Method of Exercising Repurchase Right, Etc. (a1) Unless the Company shall have theretofore called for redemption all of the outstanding Outstanding Securities, the Company shall give to the Trustee, the Paying Agent and all Holders of Securities, in the manner provided in this Section 3.4, a notice containing the information required pursuant to the following provisions of this Section 3.4(a) (the "Company Notice") (i) on or before the 20th Business Day prior to the Repurchase Date or, in the event of a Fundamental Change arising from a Change of Control, the anticipated Effective Date (but in no event earlier than 45 days prior to the Repurchase Date or anticipated Effective Date, as the case may be), and (ii) within 15 Business Days 30th day after the Company knows or reasonably should know of the occurrence of a Fundamental Change that arises as a result of any Termination of Trading. Prior to or concurrently with the delivery of any Company Noticein Control, the Company will issue a press release or publish such information on the Company's then existing website including the information required to be included in such Company Notice hereunder. The Company shall also deliver a copy of any Company Notice to the Trustee. At or, at the request and expense of the Company on or before the fifth Business Day prior 30th day after such occurrence, the Trustee, shall give to all Holders of Securities, in the manner provided in Section 1.6, notice (the "Company Notice") of the occurrence of the Change of Control and of the 100 repurchase right set forth herein arising as a result thereof. The Company shall also deliver a copy of such notice of a repurchase right to the date on which the Company Notice is to be mailed, the Trustee shall provide the Company Notice to the Holders in accordance with the provisions of this IndentureTrustee. Each Company Notice notice of a repurchase right shall state:
(i) the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be,
(ii) the date by which the repurchase right must be exercised,
(iii) the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, and whether the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, shall be paid by the Company in cash or by delivery of shares of Common Stock, or a specified combination thereof and the percentage of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, that will be paid in shares of Common Stock (which indication shall be irrevocable, subject to the satisfaction (or waiver) of the conditions set forth in Section 3.3),
(iv) if the notice relates to the occurrence of a Fundamental Change, the events causing the Fundamental Change and the date of the Fundamental Change,
(v) that Securities with respect to which a Holder gives a Repurchase Notice or Fundamental Change Repurchase Notice may be converted only if the Holder withdraws the Repurchase Notice or Fundamental Change Repurchase Notice as to such Securities in accordance with the terms of this Indenture,
(vi) a description of the procedure that which a Holder must follow to exercise a repurchase right, and the place or places where such Securities Securities, are to be surrendered for payment of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, and accrued but unpaid interest (and Liquidated Damages)interest, if any, to, but excluding, the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be,
(viiv) that on the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be, the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, and accrued but unpaid interest (and Liquidated Damages)interest, if any, to, but excluding, the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be, will become due and payable upon each such Security designated by the Holder to be repurchased, and that interest thereon shall cease to accrue on and after said date,
(viiivi) the Conversion Price Rate then in effect,, the date on which the right to convert the principal amount of the Securities to be repurchased will terminate and the place or places where such Securities may be surrendered for conversion, and
(ixvii) the place or places that the Security certificate (including with the Election of Holder to Require Repurchase attached thereto) and the Repurchase Notice (as defined below) specified in Section 2.2 shall be delivered, and, and if the Security is a Restricted Security, Securities Certificate the place or places that the Transfer Surrender Certificate in the form set forth in Exhibit C, required by Section 2.12 14.3(9) shall be delivered,
(x) the name and address of the Paying Agent and Conversion Agent, and
(xi) if the notice relates to a Fundamental Change, the estimated amount of any Make-Whole Premium and the respective percentages of such Make-Whole Premium that will be paid (as contemplated by Section 6.1(b)) in shares of Common Stock and in cash (which indication shall be irrevocable), subject to the satisfaction (or waiver) of the conditions set forth in Section 6.1(c), in the event that a Holder should, in lieu of electing to have Securities repurchased on the Fundamental Change Repurchase Date, elect to convert such Securities during the Fundamental Change Conversion Period, and
(xii) any other information to be included therein pursuant to Section 6.1. No failure of the Company to give the foregoing notices or defect therein shall limit any Holder's ' s right to exercise a repurchase right or affect the validity of the proceedings for the repurchase of Securities. If any of the foregoing provisions or other provisions of this Article III XIV are inconsistent with applicable law, such law shall govern.
(b2) To exercise a repurchase right pursuant to Section 3.1 or Section 3.2right, a Holder shall deliver to the Paying Agent Trustee on or before the 30th day after the date of the Company Notice (i) written notice (in the case of a repurchase pursuant to Section 3.1, a "Repurchase Notice" and, in the case of a repurchase pursuant to Section 3.2, a "Fundamental Change Repurchase Notice") of the Holder's exercise of such right, which notice shall set forth the name of the Holder, the principal amount of the Securities to be repurchased (and, if any Security is to repurchased in part, the serial number thereof, the portion of the principal amount thereof to be repurchased (which portion must be in principal amounts of $1,000 or a whole multiple of $1,000) and the name of the Person in which the portion thereof to remain outstanding Outstanding after such repurchase is to be registered), if certificated, the certificate numbers of the Securities to be repurchased, ) and a statement that an election to exercise the repurchase right pursuant to the terms and conditions specified in the Securities and the Indenture is being made thereby, and, in the event that any portion of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, shall be paid in shares of Common Stock, the name or names (with 101 addresses) in which the certificate or certificates for shares of Common Stock shall be issued, and (ii) the Securities with respect to which the Repurchase Notice or Fundamental Change Repurchase Notice relates at any time after delivery repurchase right is being exercised. Such written notice shall be irrevocable, except that the right of the Repurchase Notice or the Fundamental Change Repurchase Notice, as the case may be (together with all necessary endorsements), at the offices of the Paying Agent, such delivery being a condition Holder to receipt by the Holder of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, thereof; provided, however, that such Repurchase Price or Fundamental Change Repurchase Price, as the case may be, shall be so paid pursuant to this Section 3.4(b) only if convert the Securities so delivered with respect to which the Paying Agent shall conform in all respects to the description thereof in the related Repurchase Notice or Fundamental Change Repurchase Notice. In the case of a repurchase right pursuant to Section 3.1 and Section 3.2, such delivery is being exercised shall be at any time from the opening of business on the date that is 20 Business Days prior to the Repurchase Date continue until the close of business on the second Business Day prior to the Repurchase Date.
(3) In the event a repurchase right shall be exercised in accordance with the terms hereof, the Company shall pay or cause to be paid to the Trustee the Repurchase Price in cash or shares of Common Stock, as provided above, for payment to the Holder on the Repurchase Date or, if shares of Common Stock are to be paid, as promptly after the Repurchase Date as practicable, together with accrued and unpaid interest to the Repurchase Date payable with respect to the Securities as to which the repurchase right has been exercised; provided, however, that installments of interest that mature on or prior to the Fundamental Change Repurchase Date shall be payable in cash to the Holders of such Securities, or one or more Predecessor Securities, registered as such at the close of business on the relevant Regular Record Date.
(4) If any Security (or portion thereof) surrendered for repurchase shall not be so paid on the Repurchase Date, the principal amount of such Security (or portion thereof, as the case may be) shall, subject until paid, bear interest to extension the extent permitted by applicable law from the Repurchase Date at the rate of 4% per annum, and each Security shall remain convertible into Common Stock until the principal of such Security (or portion thereof, as the case may be) shall have been paid or duly provided for.
(5) Any Security which is to comply with be repurchased only in part shall be surrendered to the Trustee (with, if the Company or the Trustee so requires, due endorsement by, or a written instrument of transfer in form satisfactory to the Company and the Trustee duly executed by, the Holder thereof or his attorney duly authorized in writing), and the Company shall execute, and the Trustee shall authenticate and make available for delivery to the Holder of such Security without service charge, a new Security or Securities, containing identical terms and conditions, each in an authorized denomination in aggregate principal amount equal to and in exchange for the unrepurchased portion of the principal of the Security so surrendered.
(6) Any issuance of shares of Common Stock in respect of the Repurchase Price shall be deemed to have been effected immediately prior to the close of business on the Repurchase Date and the Person or Persons in whose name or names any certificate or certificates for shares of Common Stock shall be issuable upon such repurchase shall be deemed to have become on the Repurchase Date the holder or holders of record of the shares represented thereby; provided, however, that any surrender for repurchase on a date when the stock transfer books of the Company shall be closed shall constitute the Person or Persons in whose name or names the certificate or certificates for such shares are to be issued as the record holder or holders thereof for all purposes at the opening of business on the next succeeding day on which such stock transfer books are open. No payment or adjustment shall be made for dividends or distributions on any Common Stock issued upon repurchase of any Security declared prior to the Repurchase Date.
(7) No fractions of shares shall be issued upon repurchase of Securities. If more than one Security shall be repurchased from the same Holder and the Repurchase Price shall be payable in shares of Common Stock, the number of full shares which shall be issuable upon such repurchase shall be computed on the basis of the aggregate principal amount of the Securities so repurchased. Instead of any fractional share of Common Stock which would otherwise be issuable on the repurchase of any Security or Securities, the Company will deliver to the applicable lawHolder its check for the current market value of such fractional share. Owners The current market value of beneficial interests in Global a fraction of a share is determined by multiplying the current market price of a full share by the fraction, and rounding the result to the nearest cent. For purposes of this Section, the current market price of a share of Common Stock is the Closing Price Per Share of the Common Stock on the Trading Day immediately preceding the Repurchase Date.
(8) Any issuance and delivery of certificates for shares of Common Stock on repurchase of Securities shall provide be made without charge to the Holder of Securities being repurchased for such certificates or for any tax or duty in respect of the issuance or delivery of such certificates or the securities represented thereby; provided, however, that the Company shall not be required to pay any tax or duty which may be payable in respect of (i) income of the Holder or (ii) any transfer involved in the issuance or delivery of certificates for shares of Common Stock in a Repurchase Notice name other than that of the Holder of the Securities being repurchased, and no such issuance or Fundamental Change Repurchase Notice delivery shall be made unless and until the Person requesting such issuance or delivery has paid to the Company the amount of any such tax or duty or has established, to the satisfaction of the Company, that such tax or duty has been paid.
(9) If shares of Common Stock to be delivered upon repurchase of a Security are to be registered in accordance a name other than that of the beneficial owner of such Security, then such Holder must deliver to the Trustee a Surrender Certificate, dated the date of surrender of such Restricted Security and signed by such beneficial owner, as to compliance with the Applicable Procedures restrictions on transfer applicable to such Restricted Security. Neither the Trustee nor any Registrar or Transfer Agent or other agents shall be required to register in a name other than that of the Depositarybeneficial owner shares of Common Stock issued upon repurchase of any such Restricted Security not so accompanied by a properly completed Surrender Certificate.
(10) All Securities delivered for repurchase shall be delivered to the Trustee to be canceled at the direction of the Trustee, which shall dispose of the same as provided in Section 3.9.
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