Offer to Repurchase Upon a Change of Control. If a Change of Control occurs, unless the Company has exercised its right to redeem the Notes under Section 3.07, each Holder of Notes shall have the right to require the Company to repurchase all or any part (equal to $1,000 or an integral multiple thereof) of that Holder’s Notes pursuant to a change of control offer on the terms set forth in this Indenture (a “Change of Control Offer”). In the Change of Control Offer, the Company shall offer a payment in cash equal to 101% of the aggregate principal amount of Notes repurchased plus accrued and unpaid interest and Liquidated Damages, if any, thereon, to the date of purchase (the “Change of Control Payment”). Within 30 days following any Change of Control, the Company shall mail a notice to each Holder at its registered address. The notice shall contain all instructions and materials necessary to enable such Holder to tender Notes pursuant to the Change of Control Offer. Any Change of Control Offer shall be made to all Holders. The notice, which shall govern the terms of the Change of Control Offer, shall state: (1) that the Change of Control Offer is being made pursuant to this Section 4.10; (2) the Change of Control Payment and the date on which Notes tendered and accepted for payment shall be purchased, which date shall be at least 30 days and no later than 60 days from the date such notice is mailed (the “Change of Control Payment Date”); (3) that any Note not tendered or accepted for payment shall continue to accrete or accrue interest; (4) that, unless the Company defaults in making such payment, any Note accepted for payment pursuant to the Change of Control Offer shall cease to accrete or accrue interest after the Change of Control Payment Date; (5) that Holders electing to have a Note purchased pursuant to any Change of Control Offer shall be required to surrender the Note, with the form entitled “Option of Holder to Elect Purchase” on the reverse of the Note completed, or transfer by book-entry transfer, to the Company, a depositary, if appointed by the Company, or the Paying Agent at the address specified in the notice at least three days before the Change of Control Payment Date; (6) that Holders shall be entitled to withdraw their election if the Company, the depositary or the Paying Agent, as the case may be, receives, not later than the Change of Control Payment Date, a notice setting forth the name of the Holder, the principal amount of the Note the Holder delivered for purchase and a statement that such Holder is withdrawing his election to have such Note purchased; (7) that Notes and portions of Notes purchased shall be in amounts of $1,000 or whole multiples of $1,000, except that if all of the Notes of a Holder are to be purchased, the entire outstanding amount of Notes held by such Holder, even if not a multiple of $1,000, shall be purchased; and (8) that Holders whose Notes were purchased only in part shall be issued new Notes equal in principal amount to the unpurchased portion of the Notes surrendered (or transferred by book-entry transfer), which unpurchased portion must be equal to $1,000 in principal amount or an integral multiple thereof. The Company shall comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws and regulations are applicable in connection with the repurchase of the Notes as a result of a Change of Control. To the extent that the provisions of any securities laws or regulations conflict with the Change of Control provisions of this Indenture, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under the Change of Control provisions of this Indenture by virtue of such conflict. On the Change of Control Payment Date, the Company shall, to the extent lawful: (1) accept for payment all Notes or portions thereof properly tendered pursuant to the Change of Control Offer; (2) deposit with the Paying Agent an amount equal to the Change of Control Payment in respect of all Notes or portions thereof so tendered; and (3) 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. The Paying Agent shall promptly mail to each Holder of Notes so tendered the Change of Control Payment for such Notes, and the Trustee shall promptly authenticate and mail (or cause to be transferred by book entry) to each Holder a new Note equal in principal amount to any unpurchased portion of the Notes surrendered, if any; provided that each such new Note shall be in a principal amount of $1,000 or an integral multiple thereof. The Company shall publicly announce the results of the Change of Control Offer on or as soon as practicable after the Change of Control Payment Date. The provisions set forth above that require the Company to make a Change of Control Offer following a Change of Control shall be applicable regardless of whether or not any other provisions of this Indenture are applicable. Notwithstanding anything to the contrary in this Section 4.10, 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 requirements set forth in this Section 4.10 and purchases all Notes validly tendered and not withdrawn under such Change of Control Offer.
Appears in 4 contracts
Samples: Fourth Supplemental Indenture (Owens Illinois Group Inc), Fourth Supplemental Indenture (Owens Illinois Inc /De/), Indenture (Owens Illinois Inc /De/)
Offer to Repurchase Upon a Change of Control. If Following a Change of Control occurs(the date of each such occurrence being the “Change of Control Date”), unless the Company has exercised its right to redeem Issuer shall notify the Notes under Section 3.07, each Holder holders of Notes in writing of such occurrence and shall have make an offer (the right to require the Company to repurchase all or any part (equal to $1,000 or an integral multiple thereof) of that Holder’s Notes pursuant to a change of control offer on the terms set forth in this Indenture (a “Change of Control Offer”). In the Change of Control Offer, the Company shall offer ) to repurchase all Notes then outstanding at a payment in cash repurchase price equal to 101100% of the aggregate principal amount of Notes repurchased plus accrued and unpaid interest and Liquidated Damages, if any, thereon, to the date of purchase thereof (the “Change of Control Payment”). Within 30 days following any Change of Control, the Company shall mail a notice to each Holder at its registered address. The notice shall contain all instructions plus accrued and materials necessary to enable such Holder to tender Notes pursuant to unpaid interest and Additional Interest, if any, to, but not including, the Change of Control OfferPayment Date (as defined below). Any Notice of a Change of Control (the “Issuer Notice”) shall be mailed by or at the direction and expense of the Issuer through the Trustee to the holders of Notes as shown on the Register of such holders maintained by the Registrar not more than 30 days after the applicable Change of Control Date at the addresses as shown on the Register of holders maintained by the Registrar, with a copy to the Trustee and the Paying Agent. The Change of Control Offer shall remain open until a specified date (the “Change of Control Offer Termination Date”) which is at least 20 Business Days from the date such Issuer Notice is mailed. During the period specified in such notice, holders of Notes of any series may elect to tender their Notes in whole or in part in integral multiples of $1,000. Payment shall be made by the Issuer in the manner elected by the Issuer pursuant to all HoldersSection 4.06(b) in respect of Notes properly tendered pursuant to this Section on a specified Business Day (the “Change of Control Payment Date”) which shall be no earlier than 20 Business Days and no later than 35 Business Days after the date of the Issuer Notice. The notice, which shall govern the terms of the Change of Control Offer, shall include such disclosures as are required by law and shall state: :
(1) that the a Change of Control Offer is being made pursuant to this Section 4.10; 4.06 and that all Notes will be accepted for payment;
(2) the event, transaction or transactions that constitute the Change of Control;
(3) the Change of Control Payment for each Note, the Change of Control Offer Termination Date and the date on which Notes tendered and accepted for payment shall be purchased, which date shall be at least 30 days and no later than 60 days from the date such notice is mailed (the “Change of Control Payment Date”); ;
(34) the Conversion Rate applicable to the Notes of each series and any adjustments to such Conversion Rate;
(5) that a Note subject to the Change of Control Offer may be converted only if the holder of such Note declines the Change of Control Offer or has withdrawn its acceptance of the Change of Control Offer in accordance with the terms of such Change of Control Offer and the provisions of this Indenture;
(6) that any Note not tendered or accepted for payment shall will continue to accrete or accrue interest; interest and Additional Interest, if applicable, in accordance with the terms thereof;
(47) that, unless the Company defaults in Issuer and the Guarantors default on making such paymentthe Change of Control Payment, any Note accepted for payment pursuant to the Change of Control Offer shall cease to accrete or accrue interest after and Additional Interest, if applicable, on the Change of Control Payment Date; Date and no further interest or Additional Interest shall accrue on or after such date;
(58) the name and address of the Paying Agent and Conversion Agent;
(9) that Holders holders electing to have a Note purchased Notes repurchased pursuant to any a Change of Control Offer shall will be required to surrender the Notetheir Notes, if in certificated form, together with the form entitled “Option of Holder to Elect Purchase” on the reverse of the Note completed, or transfer by book-entry transferany necessary endorsements, to the Company, a depositary, if appointed by the Company, or the Paying Agent at the address specified in the notice at least three days before prior to 5:00 p.m., New York City time on the Change of Control Payment Date; Offer Termination Date and must complete any form letter of transmittal proposed by the Issuer and acceptable to the Trustee and the Paying Agent (6a “Purchase Notice”);
(10) that Holders shall holders of Notes will be entitled to withdraw their election if the Company, the depositary or the Paying Agent, as the case may be, Agent receives, not later than 5:00 p.m., New York City time, on the Change of Control Payment Offer Termination Date, a notice facsimile transmission or letter setting forth the name of the Holderholder, the series and principal amount of Notes the holder delivered for repurchase, the Note the Holder delivered for purchase certificate number (if any) and a statement that such Holder holder is withdrawing his election to have such Note Notes purchased; ;
(711) that Notes and portions of Notes purchased shall be in amounts of $1,000 or whole multiples of $1,000, except that if all of the holders whose Notes of a Holder any series are to be purchased, the entire outstanding amount of Notes held by such Holder, even if not a multiple of $1,000, shall be purchased; and (8) that Holders whose Notes were purchased repurchased only in part shall will be issued new Notes of such series equal in principal amount to the unpurchased portion of the Notes surrendered surrendered;
(or transferred by book-entry transfer), which unpurchased portion 12) the instructions that holders must be equal follow in order to $1,000 tender their Notes; and
(13) that in principal amount or an integral multiple thereof. The Company shall comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws and regulations are applicable in connection with the repurchase of the Notes as a result case of a Change of ControlControl Offer Termination Date that is also an Interest Payment Date, the interest payment and Additional Interest, if any, due on such date shall be paid to the person in whose name the Note is registered at the close of business on the relevant Change of Control Offer Termination Date. To accept a Change of Control Offer, a holder of Notes subject to such Change of Control Offer must deliver a written notice so as to be received by the extent that the provisions of any securities laws or regulations conflict with Paying Agent no later than 5:00 pm, New York City Time on the Change of Control Offer Termination Date. The required notice must state:
(1) the series of the Notes to be delivered by the holder for repurchase;
(2) the certificate numbers of the Notes to be delivered by the holder for repurchase, if applicable;
(3) the portion of the principal amount of Notes to be repurchased, which portion must be an integral multiple of $1,000; and
(4) that the holder accepts the Change of Control Offer pursuant to the terms of such Change of Control Offer and the provisions of this Indenture, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under . A holder may withdraw any acceptance of the Change of Control provisions Offer by delivering to the Paying Agent a written notice of this Indenture by virtue withdrawal prior to the close of such conflict. On business on the Business Day immediately preceding the Change of Control Payment Date. Such notice of withdrawal must state:
(1) the series of Notes being withdrawn;
(2) the principal amount of Notes being withdrawn, which must be an integral multiple of $1,000;
(3) the Company certificate numbers of the Notes being withdrawn, if applicable; and
(4) the principal amount, if any, of the Notes that remain subject to acceptance of the Change of Control Offer. On the Business Day following the Change of Control Offer Termination Date the Issuer shall, to the extent lawful:
, (1i) accept for payment all Notes or portions thereof that have been properly tendered (and not properly withdrawn) pursuant to the Change of Control Offer;
, (2ii) by 10:00 a.m., New York City time, deposit with the Paying Agent Agent, an amount equal in U.S. legal tender (“cash”) sufficient to pay the Change of Control Payment in with respect of to all Notes or portions thereof so tendered; and
tendered and accepted, and an amount in cash equal to accrued and unpaid interest and Additional Interest, if any, and (3iii) deliver or cause to be delivered to the Trustee the Notes so accepted together with an Officers’ Certificate stating setting forth the aggregate principal amount of Notes or portions thereof being purchased tendered to and accepted for payment by the CompanyIssuer. The Paying Agent shall promptly mail to each Holder of Notes so tendered On the Change of Control Payment for such NotesDate, and the Trustee Paying Agent shall promptly authenticate and mail or deliver (or cause to be transferred by book entry) to each Holder the holders of Notes so accepted, the Change of Control Payment, and the Trustee shall promptly authenticate and mail or cause to be transferred by book entry to such holders a new Note of the same series equal in principal amount to any unpurchased portion of the Notes Note surrendered, if any; provided that each such new Note shall Notes will be in a principal amount of $1,000 or an integral multiple thereof. The Company Any Notes not so accepted shall publicly announce be promptly mailed or delivered by the results of Issuer to the Change of Control Offer on or as soon as practicable holder thereof. Immediately after the Change of Control Payment Date, (i) each properly tendered Note accepted for purchase in such Change of Control Offer will cease to be outstanding, (ii) interest will cease to accrue on each properly tendered Note, and (iii) all other rights of the holder of a properly tendered Note will terminate, other than the right to receive the Change of Control Payment upon delivery of such Note, in each case, regardless of whether or not book-entry transfer of the Note has been made or the Note has been delivered to the Paying Agent. The In the case of any reclassification, change, amalgamation, consolidation, merger, combination or sale or conveyance to which Section 12.06 applies, in which the Common Shares of the Issuer are changed or exchanged as a result into the right to receive stock, securities or other property or assets (including cash) which includes Common Shares or common shares of another person, then the person formed by such amalgamation, or consolidation or resulting from such merger or which acquires such assets, as the case may be, shall execute and deliver to the Trustee a supplemental indenture (which shall comply with the TIA as in force at the date of execution of such supplemental indenture) modifying the provisions set forth above of this Indenture relating to the right of holders of Notes to cause the Issuer to repurchase Notes following a Change of Control, including the applicable provisions of this Section 4.06 and the definition of Change of Control, as determined in good faith by the Issuer (which determination shall be conclusive and binding), to make such provision apply to such common shares and the issuer thereof if different from the Issuer and Common Shares (in lieu of the Issuer and the Common Shares of the Issuer). Each Change of Control Offer shall be made by the Issuer in compliance with Rule 14e-4 and Rule 13e-4 and all other applicable provisions of the Exchange Act and, with respect to Canadian holders, Canadian securities laws, and all applicable tender offer rules promulgated thereunder and any other applicable securities laws and regulations, to the extent such laws and regulations are then applicable and shall include all instructions and materials that require the Company Issuer shall reasonably deem necessary to enable such holders of Notes to tender their Notes. Notwithstanding the foregoing, the Issuer may not repurchase any Note in connection with a Change of Control Offer if there has occurred and is continuing an Event of Default with respect to such Note, other than a Default in the payment of the Change of Control Payment with respect to such Note. Subject to the foregoing, a Change of Control will be an “event of failure” within the meaning of paragraph 212(1)(b)(vii) of the Income Tax Act (Canada) that requires the Issuer to make a Change of Control Offer following a Change Offer. For the avoidance of Control shall be applicable regardless of whether or not any other provisions of this Indenture are applicable. Notwithstanding anything to the contrary in this Section 4.10doubt, the Company shall occurrence of such an event of failure is not be required to make a Change an Event 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 requirements set forth in this Default under Section 4.10 and purchases all Notes validly tendered and not withdrawn under such Change of Control Offer6.01 hereof.
Appears in 4 contracts
Samples: Indenture (Nortel Networks LTD), Indenture (Nortel Networks LTD), Indenture (Nortel Networks Corp)
Offer to Repurchase Upon a Change of Control. (a) If a Change of Control occurs, unless the Company has previously or concurrently exercised its right to redeem all of the Notes under pursuant to Section 3.07, each Holder of Notes shall will have the right to require the Company to repurchase all or any part (equal to $1,000 2,000 or an integral multiple thereofof $1,000 in excess of $2,000) of that such Holder’s Notes pursuant to at a change of control offer on the terms set forth in this Indenture (a “Change of Control Offer”). In the Change of Control Offer, the Company shall offer a payment purchase price in cash equal to 101% of the aggregate principal amount of the Notes repurchased plus accrued and unpaid interest and Liquidated Damagesinterest, if any, thereon, to the date of purchase (subject to the right of Holders of record on the relevant record date to receive interest due on the relevant Interest Payment Date).
(b) Within 30 days following any Change of Control, unless the Company has previously or concurrently exercised its right to redeem all of the Notes pursuant to Section 3.07, the Company shall mail a notice (the “Change of Control Offer”) to each Holder, with a copy to the Trustee, stating, among other things:
(1) that a Change of Control has occurred and that such Holder has the right to require the Company to purchase such Holder’s Notes at a purchase price in cash equal to 101% of the principal amount of such Notes plus accrued and unpaid interest, if any, to the date of purchase (subject to the right of Holders of record on a record date to receive interest on the relevant Interest Payment Date) (the “Change of Control Payment”). Within 30 days following any Change of Control, the Company shall mail a notice to each Holder at its registered address. The notice shall contain all instructions and materials necessary to enable such Holder to tender Notes pursuant to the Change of Control Offer. Any Change of Control Offer shall be made to all Holders. The notice, which shall govern the terms of the Change of Control Offer, shall state: (1) that the Change of Control Offer is being made pursuant to this Section 4.10; ;
(2) the Change of Control Payment and the repurchase date on (which Notes tendered and accepted for payment shall be purchased, which date shall be at least no earlier than 30 days and no nor later than 60 days from the date such notice is mailed mailed) (the “Change of Control Payment Date”); ;
(3) that any Note not properly tendered or accepted for payment shall will remain outstanding and continue to accrete or accrue interest; ;
(4) that, that unless the Company defaults in making such paymentthe payment of the Change of Control Payment, any Note all Notes accepted for payment pursuant to the Change of Control Offer shall will cease to accrete or accrue interest after on the Change of Control Payment Date; ;
(5) that Holders electing to have a Note any Notes in certificated form purchased pursuant to any a Change of Control Offer shall will be required to surrender the Notesuch Notes, with the form entitled “Option of Holder to Elect Purchase” on the reverse of the Note such Notes completed, or transfer by book-entry transfer, to the Company, a depositary, if appointed by paying agent specified in the Company, or the Paying Agent notice at the address specified in the notice at least three days before prior to the close of business on the third Business Day preceding the Change of Control Payment Date; ;
(6) that Holders shall will be entitled to withdraw their tendered Notes and their election if to require the CompanyCompany to purchase such Notes, provided, that the depositary or the Paying Agent, as the case may be, paying agent receives, not later than the close of business on the third Business Day preceding the Change of Control Payment Date, a notice setting forth telegram, telex, facsimile transmission or letter complying with the name requirements of the Holder, the principal amount of the Note the Holder delivered for purchase and a statement that such Holder is withdrawing his election to have such Note purchased; Section 4.17(f) below;
(7) that Notes and portions of Notes purchased shall be in amounts of $1,000 or whole multiples of $1,000, except that if all the Company is repurchasing a portion of the Notes Note of a Holder are to be purchasedany Holder, the entire outstanding amount of Notes held by such Holder, even if not a multiple of $1,000, shall be purchased; and (8) that Holders whose Notes were purchased only in part shall Holder will be issued a new Notes Note equal in principal amount to the unpurchased portion of the Notes surrendered (or transferred by book-entry transfer)Note surrendered, which provided, that the unpurchased portion of the Note must be equal to a minimum principal amount of $2,000 and an integral multiple of $1,000 in principal amount or an integral multiple thereof. The Company shall comply excess of $2,000; and
(8) other procedures determined by the Company, consistent with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws and regulations are applicable in connection with the repurchase of the Notes as a result of a Change of Control. To the extent that the provisions of any securities laws or regulations conflict with the Change of Control provisions of this Indenture, the Company shall comply with the applicable securities laws and regulations and shall not be deemed that a Holder must follow in order to have breached its obligations under the Change of Control provisions of this Indenture by virtue of such conflict. Notes repurchased.
(c) On the Change of Control Payment Date, the Company shallwill, to the extent lawful:
(1) accept for payment all Notes or portions thereof of Notes (in a minimum principal amount of $2,000 and integral multiples of $1,000 in excess of $2,000) properly tendered pursuant to the Change of Control OfferOffer and not properly withdrawn;
(2) deposit with the Paying Agent paying agent an amount equal to the Change of Control Payment in respect of all Notes or portions thereof so tenderedof Notes accepted for payment, provided, however, that the funds once deposited are to be uninvested until disbursed pursuant to this Section 4.17; and
(3) 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 of Notes being purchased by the Company. .
(d) The Paying Agent shall paying agent will promptly mail or deliver to each Holder of Notes so tendered accepted for payment the Change of Control Payment for such Notes, and the Trustee shall will promptly authenticate and mail (or cause to be transferred by book entry) to each Holder a new Note equal in principal amount to any unpurchased portion of the Notes surrendered, if any; provided provided, that each such new Note shall will be in a minimum principal amount of $1,000 2,000 or an integral multiple thereof. The Company shall publicly announce the results of $1,000 in excess of $2,000.
(e) If the Change of Control Offer Payment Date is on or as soon as practicable after an interest record date and on or before the related Interest Payment Date, any accrued and unpaid interest, will be paid to the Person in whose name a Note is registered at the close of business on such record date, and no further interest will be payable to Holders who tender pursuant to the Change of Control Offer.
(f) A tender made in response to a Change of Control Payment Notice may be withdrawn if the Company receives, not later than the third Business Day prior to the Change of Control Payment Date. The provisions set forth above that require , a telegram, telex, facsimile transmission or letter, specifying, as applicable: (1) the name of the Holder; (2) the certificate number of the Note in respect of which such notice of withdrawal is being submitted; (3) the principal amount of the Note (which shall be $2,000 or whole multiples of $1,000 in excess thereof) delivered for purchase by the Company as to make which such notice of withdrawal is being submitted; (4) a statement that such Holder is withdrawing his election to have such principal amount of such Note purchased; and (5) the principal amount, if any, of such Note (which shall be $2,000 or whole multiples of $1,000 in excess thereof) that remains subject to the original Change of Control Payment Notice and that has been or will be delivered for purchase by the Company.
(g) Subject to applicable unclaimed property laws, the Trustee and the Paying Agent shall return to the Company, upon its request, any cash that remains unclaimed for two years after a Change of Control Offer Payment Date together with interest or dividends, if any, thereon (subject to Section 7.01(f)), held by them for the payment of the Change of Control Payment; and the Holder of such tendered and accepted Note shall thereafter look only to the Company for payment thereof, and all liability of the Trustee or such Paying Agent with respect to such cash, and all liability of the Company as trustee thereof, shall thereupon cease; provided, however, that the Trustee or such Paying Agent, before being required to make any such repayment, shall at the expense of the Company comply with the Commission Regulation 17AD-17 as it applies to lost bondholders; provided, further however, that (x) to the extent that the aggregate amount of cash deposited by the Company pursuant to clause (2) of paragraph (c) of this Section 4.17 exceeds the aggregate Change of Control Payment of the Notes or portions thereof to be purchased, then the Trustee shall hold such excess for the Company and (y) unless otherwise directed by the Company in writing, promptly after the Business Day following the Change of Control Payment Date the Trustee shall return any such excess to the Company together with interest, if any, thereon (subject to Section 7.01(f)).
(h) The Company shall comply, to the extent applicable, with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws or regulations in connection with the repurchase of Notes as a result of a Change of Control shall be applicable regardless of whether or not any other Control. To the extent that the provisions of this Indenture are applicable. Notwithstanding anything to the contrary in any securities laws or regulations conflict with this Section 4.104.17, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under this Section 4.17 by virtue of such conflict.
(i) Notwithstanding the foregoing, 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 requirements set forth in this Section 4.10 Indenture applicable to a Change of Control Offer made by the Company and purchases all Notes validly tendered and not withdrawn under such Change of Control Offer.
(j) In the event that Holders of not less than 90% of the aggregate principal amount of the outstanding Notes validly tender and do not withdraw such Notes in a Change of Control Offer and the Company, or any third party making a Change of Control Offer in lieu of the Company pursuant to Section 4.17(i) above, purchases all of the Notes validly tendered and not withdrawn by such Holders, the Company will have the right, upon not less than 30 nor more than 60 days’ prior notice, given not more than 30 days following the purchase pursuant to the Change of Control Offer described under this Section 4.17, to redeem all of the Notes that remain outstanding following such purchase at a redemption price in cash equal to the applicable Change of Control Payment plus, to the extent not included in the Change of Control Payment, accrued and unpaid interest, if any, to the date of redemption.
(k) A Change of Control Offer may be made in advance of a Change of Control, and conditioned upon the occurrence of a Change of Control, if a definitive agreement is in place for the Change of Control at the time of making of the Change of Control Offer.
Appears in 4 contracts
Samples: Indenture (Goodrich Petroleum Corp), Supplemental Indenture (Goodrich Petroleum Corp), Indenture (Goodrich Petroleum Corp)
Offer to Repurchase Upon a Change of Control. (a) If a Change of Control occurs, unless the Company has previously or concurrently exercised its right to redeem all of the Notes under pursuant to Section 3.07, each Holder of Notes shall will have the right to require the Company to repurchase all or any part (equal to $1,000 2,000 or an integral multiple thereofof $1,000 in excess of $2,000) of that such Holder’s Notes pursuant to at a change of control offer on the terms set forth in this Indenture (a “Change of Control Offer”). In the Change of Control Offer, the Company shall offer a payment purchase price in cash equal to 101% of the aggregate principal amount of the Notes repurchased plus accrued and unpaid interest and Liquidated Damagesinterest, if any, thereon, to the date of purchase (subject to the right of Holders of record on the relevant record date to receive interest due on the relevant Interest Payment Date).
(b) Within 30 days following any Change of Control, unless the Company has previously or concurrently exercised its right to redeem all of the Notes pursuant to Section 3.07, the Company shall mail a notice (the “Change of Control Offer”) to each Holder, with a copy to the Trustee, stating, among other things:
(1) that a Change of Control has occurred and that such Holder has the right to require us to purchase such Holder’s Notes at a purchase price in cash equal to 101% of the principal amount of such Notes plus accrued and unpaid interest, if any, to the date of purchase (subject to the right of Holders of record on a record date to receive interest on the relevant Interest Payment Date) (the “Change of Control Payment”). Within 30 days following any Change of Control, the Company shall mail a notice to each Holder at its registered address. The notice shall contain all instructions and materials necessary to enable such Holder to tender Notes pursuant to the Change of Control Offer. Any Change of Control Offer shall be made to all Holders. The notice, which shall govern the terms of the Change of Control Offer, shall state: (1) that the Change of Control Offer is being made pursuant to this Section 4.10; ;
(2) the Change of Control Payment and the repurchase date on (which Notes tendered and accepted for payment shall be purchased, which date shall be at least no earlier than 30 days and no nor later than 60 days from the date such notice is mailed mailed) (the “Change of Control Payment Date”); ;
(3) that any Note not properly tendered or accepted for payment shall will remain outstanding and continue to accrete or accrue interest; ;
(4) that, that unless the Company defaults in making such paymentthe payment of the Change of Control Payment, any Note all Notes accepted for payment pursuant to the Change of Control Offer shall will cease to accrete or accrue interest after on the Change of Control Payment Date; ;
(5) that Holders electing to have a Note any Notes in certificated form purchased pursuant to any a Change of Control Offer shall will be required to surrender the Notesuch Notes, with the form entitled “Option of Holder to Elect Purchase” on the reverse of the Note such Notes completed, or transfer by book-entry transfer, to the Company, a depositary, if appointed by paying agent specified in the Company, or the Paying Agent notice at the address specified in the notice at least three days before prior to the close of business on the third Business Day preceding the Change of Control Payment Date; ;
(6) that Holders shall will be entitled to withdraw their tendered Notes and their election if to require the CompanyCompany to purchase such Notes, provided, that the depositary or the Paying Agent, as the case may be, paying agent receives, not later than the close of business on the third Business Day preceding the Change of Control Payment Date, a notice setting forth telegram, telex, facsimile transmission or letter complying with the name requirements of the Holder, the principal amount of the Note the Holder delivered for purchase and a statement that such Holder is withdrawing his election to have such Note purchased; Section 4.15(f) below;
(7) that Notes and portions of Notes purchased shall be in amounts of $1,000 or whole multiples of $1,000, except that if all the Company is repurchasing a portion of the Notes Note of a Holder are to be purchasedany Holder, the entire outstanding amount of Notes held by such Holder, even if not a multiple of $1,000, shall be purchased; and (8) that Holders whose Notes were purchased only in part shall Holder will be issued a new Notes Note equal in principal amount to the unpurchased portion of the Notes surrendered (or transferred by book-entry transfer)Note surrendered, which provided, that the unpurchased portion of the Note must be equal to a minimum principal amount of $2,000 and an integral multiple of $1,000 in principal amount or an integral multiple thereof. The Company shall comply excess of $2,000; and
(8) other procedures determined by the Company, consistent with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws and regulations are applicable in connection with the repurchase of the Notes as a result of a Change of Control. To the extent that the provisions of any securities laws or regulations conflict with the Change of Control provisions of this Indenture, the Company shall comply with the applicable securities laws and regulations and shall not be deemed that a Holder must follow in order to have breached its obligations under the Change of Control provisions of this Indenture by virtue of such conflict. Notes repurchased.
(c) On the Change of Control Payment Date, the Company shallwill, to the extent lawful:
(1) accept for payment all Notes or portions thereof of Notes (in a minimum principal amount of $2,000 and integral multiples of $1,000 in excess of $2,000) properly tendered pursuant to the Change of Control OfferOffer and not properly withdrawn;
(2) deposit with the Paying Agent paying agent an amount equal to the Change of Control Payment in respect of all Notes or portions thereof so tenderedof Notes accepted for payment, provided, however, that the funds once deposited are to be uninvested until disbursed pursuant to this Section 4.15; and
(3) 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 of Notes being purchased by the Company. .
(d) The Paying Agent shall paying agent will promptly mail or deliver to each Holder of Notes so tendered accepted for payment the Change of Control Payment for such Notes, and the Trustee shall will promptly authenticate and mail (or cause to be transferred by book entry) to each Holder a new Note equal in principal amount to any unpurchased portion of the Notes surrendered, if any; provided provided, that each such new Note shall will be in a minimum principal amount of $1,000 2,000 or an integral multiple thereof. The Company shall publicly announce the results of the Change $1,000 in excess of Control Offer on or as soon as practicable after $2,000.
(e) If the Change of Control Payment Date is on or after an interest record date and on or before the related Interest Payment Date. The provisions set forth above that require the Company to make a Change of Control Offer following a Change of Control shall , any accrued and unpaid interest, will be applicable regardless of whether or not any other provisions of this Indenture are applicable. Notwithstanding anything paid to the contrary Person in this Section 4.10, the Company shall not be required to make whose name a Change of Control Offer upon a Change of Control if a third party makes the Change of Control Offer in the manner, Note is registered at the times close of business on such record date, and otherwise in compliance with no further interest will be payable to Holders who tender pursuant to the requirements set forth in this Section 4.10 and purchases all Notes validly tendered and not withdrawn under such Change of Control Offer.
Appears in 4 contracts
Samples: Indenture (SM Energy Co), Indenture (SM Energy Co), Indenture (SM Energy Co)
Offer to Repurchase Upon a Change of Control. (a) If a Change of Control Triggering Event occurs, unless the Company has exercised its right to redeem the Notes under Section 3.07, each Holder of Notes shall will have the right to require that the Company to repurchase purchase all or any part (equal to in amounts of $1,000 or an integral multiple whole multiples of $1,000 in excess thereof) of that such Holder’s Notes pursuant to a change of control the offer on described below (the terms set forth in this Indenture (a “Change of Control Offer”). In the Change of Control Offer, the Company shall will offer to purchase all of the Notes, at a payment purchase price (the “Change of Control Purchase Price”) in cash in an amount equal to 101% of the aggregate principal amount of Notes repurchased such Notes, plus accrued and unpaid interest and Liquidated Damagesinterest, if any, thereon, to the date of purchase (the “Change of Control PaymentPurchase Date”).
(b) Not later than 30 days after the date upon which any Change of Control Triggering Event occurred, or, at the Company’s option, prior to a Change of Control but after it is publicly announced, the Company must notify the Trustee in writing and give notice of either such event to each Holder of Notes at such Holder’s address appearing in the security register or otherwise deliver notice in accordance with the Applicable Procedures (the “Change of Control Purchase Notice”). Within 30 days following any Change of Control, the Company shall mail a notice to each Holder at its registered address. The notice shall contain all instructions and materials necessary to enable such Holder to tender Notes pursuant to the Change of Control Offer. Any Change of Control Offer shall be made to all Holders. The noticePurchase Notice must state, which shall govern the terms of the Change of Control Offer, shall state: among other things:
(1) that the a Change of Control Offer Triggering Event has occurred or is being made pursuant expected to this Section 4.10; occur and the date or expected date of such event;
(2) the circumstances and relevant facts regarding such Change of Control Triggering Event;
(3) the Change of Control Payment Purchase Price and the date on Change of Control Purchase Date, which Notes tendered and accepted for payment shall be purchased, which date shall be at least fixed by the Company on a Business Day no earlier than 30 days and no nor later than 60 days from the date such the notice is mailed (or otherwise delivered, or such later date as is necessary to comply with requirements under the “Exchange Act; provided that the Change of Control Payment Date”); Purchase Date may not occur prior to the Change of Control Triggering Event and such notice may be contingent on the occurrence of the Change of Control Triggering Event;
(34) that any Note not tendered or accepted for payment shall will continue to accrete or accrue interest; ;
(45) that, unless the Company defaults in making such paymentthe payment of the Change of Control Purchase Price, any Note Notes accepted for payment pursuant to the Change of Control Offer shall cease to accrete or accrue interest after the Change of Control Payment Purchase Date; and
(56) other procedures that a Holder of Notes must follow to accept a Change of Control Offer or to withdraw acceptance of the Change of Control Offer.
(c) Upon receipt by the Company of the proper tender of Notes, the Holder of the Note in respect of which such proper tender was made shall (unless the tender of such Note is properly withdrawn at least one Business Day prior to the Change of Control Purchase Date) thereafter be entitled to receive solely the Change of Control Purchase Price with respect to such Notes. On the Change of Control Purchase Date, any such Note surrendered for purchase in accordance with the foregoing provisions and not withdrawn shall be accepted for payment by the Company at the Change of Control Purchase Price; provided, however, that installments of interest whose Stated Maturity is on or prior to the Change of Control Purchase Date shall be payable to the Holders of such Notes, registered as such on the relevant Change of Control Purchase Date (or on the relevant record dates in the case of Definitive Notes) according to the terms and the provisions of Section 2.03. If any Note accepted for payment in accordance with the provisions of this Section 4.09 shall not be paid as provided in Section 4.09(d), the principal thereof (and premium, if any, thereon) shall, until paid, bear interest from the Change of Control Purchase Date at the rate borne by such Note. Holders electing to have a Note Notes purchased pursuant to any Change of Control Offer shall will be required to surrender the Note, with the form entitled “Option of Holder such Notes to Elect Purchase” on the reverse of the Note completed, or transfer by book-entry transfer, to the Company, a depositary, if appointed by the Company, or the Paying Agent at the address specified in the notice Change of Control Purchase Notice at least three days before one Business Day prior to the Change of Control Payment Purchase Date; (6) . Any Note that Holders is to be purchased only in part shall be entitled surrendered to withdraw their election a Paying Agent at the office of such Paying Agent (with, if the Company, the depositary Registrar or the Paying AgentTrustee so require, due endorsement by, or a written instrument of transfer in form satisfactory to the Company and the Registrar or the Trustee, as the case may be, receivesduly executed by, the Holder thereof or such Holder’s 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, one or more new Notes of any authorized denomination as requested by such Holder in an aggregate principal amount equal to, and in exchange for, the portion of the principal amount of the Note so surrendered that is not purchased.
(d) The Company shall (i) not later than the Change of Control Payment Purchase Date, accept for payment Notes or portions thereof tendered pursuant to the Change of Control Offer and not validly withdrawn, (ii) not later than 1:00 p.m. (New York time) on the Business Day following the Change of Control Purchase Date, deposit with the Trustee or with a Paying Agent an amount of money in same day funds sufficient to pay the aggregate Change of Control Purchase Price of all the Notes or portions thereof which have been so accepted for payment and (iii) not later than 1:00 p.m. (New York time) on the Business Day following the Change of Control Purchase Date, deliver to the Paying Agent an Officers’ Certificate stating the Notes or portions thereof accepted for payment by the Company. The Paying Agent shall promptly mail or deliver to Holders of the Notes so accepted payment in an amount equal to the Change of Control Purchase Price of the Notes purchased from each such Holder, and the Company shall execute and the Trustee shall promptly authenticate and mail or deliver to such Holders a new Note equal in principal amount to any unpurchased portion of the Note surrendered. Any Notes not so accepted shall be promptly mailed or delivered by the Paying Agent at the Company’s expense to the Holder thereof. The Company will publicly announce the results of the Change of Control Offer on the Change of Control Purchase Date. For purposes of this Section 4.09, the Company shall choose a Paying Agent which shall not be the Company.
(e) A tender made in response to a Change of Control Purchase Notice may be withdrawn if the Company receives, not later than one Business Day prior to the Change of Control Purchase Date, a notice setting forth telegram, telex, facsimile transmission or letter, specifying, as applicable:
(1) the name of the Holder, ;
(2) the certificate number of the Note in respect of which such notice of withdrawal is being submitted;
(3) the principal amount of the Note the Holder (which shall be $1,000 or whole multiples of $1,000 in excess thereof) delivered for purchase and by the Company as to which such notice of withdrawal is being submitted;
(4) a statement that such Holder is withdrawing his election to have such principal amount of such Note purchased; and
(75) that Notes and portions the principal amount, if any, of Notes purchased such Note (which shall be in amounts of $1,000 or whole multiples of $1,0001,000 in excess thereof) that remains subject to the original Change of Control Purchase Notice and that has been or will be delivered for purchase by the Company. Notwithstanding anything herein to the contrary, except in the case of Notes held in book-entry form, Notes must be tendered and/or withdrawn in accordance with Applicable Procedures.
(f) The Trustee and the Paying Agent shall return to the Company, upon its request, any cash that remains unclaimed for two years after a Change of Control Purchase Date together with interest or dividends, if any, thereon (subject to Section 7.01(f)), held by them for the payment of the Change of Control Purchase Price; and the Holder of such tendered and accepted Note shall thereafter look only to the Company for payment thereof, and all liability of the Trustee or such Paying Agent with respect to such cash, and all liability of the Company as trustee thereof, shall thereupon cease; provided, however, that the Trustee or such Paying Agent, before being required to make any such repayment, shall at the expense of the Company cause to be published once in The New York Times and The Wall Street Journal (national edition) or send to each Holder entitled to such money notice that such money remains unclaimed and that, after a date specified therein, which shall not be less than 30 days from the date of such notification or publication, any unclaimed balance of such money then remaining shall be repaid to the Company; provided, further however, that (x) to the extent that the aggregate amount of cash deposited by the Company pursuant to clause (ii) of paragraph (d) of this Section 4.09 exceeds the aggregate Change of Control Purchase Price of the Notes of a Holder are or portions thereof to be purchased, then the entire outstanding amount of Notes held by Trustee shall hold such Holder, even if not a multiple of $1,000, shall be purchased; excess for the Company and (8) that Holders whose Notes were purchased only y) unless otherwise directed by the Company in part writing, promptly after the Business Day following the Change of Control Purchase Date the Trustee shall be issued new Notes equal in principal amount return any such excess to the unpurchased portion of the Notes surrendered Company together with interest, if any, thereon (or transferred by book-entry transfersubject to Section 7.01(f), which unpurchased portion must be equal to $1,000 in principal amount or an integral multiple thereof. ).
(g) The Company shall comply with the requirements of applicable tender offer rules, including Rule 14e-1 under the Exchange Act Act, and any other applicable securities laws and or regulations thereunder to the extent such laws and regulations are applicable in connection with the repurchase of the Notes as a result of a Change of ControlControl Offer. To the extent that the provisions of any securities laws or regulations conflict with the Change of Control provisions of this IndentureSection 4.09, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under the Change of Control provisions of this Indenture Section 4.09 by virtue of such conflict. On the Change of Control Payment Date, the Company shall, to the extent lawful:.
(1h) accept for payment all Notes or portions thereof properly tendered pursuant to Notwithstanding the Change of Control Offer;
(2) deposit with the Paying Agent an amount equal to the Change of Control Payment in respect of all Notes or portions thereof so tendered; and
(3) 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. The Paying Agent shall promptly mail to each Holder of Notes so tendered the Change of Control Payment for such Notes, and the Trustee shall promptly authenticate and mail (or cause to be transferred by book entry) to each Holder a new Note equal in principal amount to any unpurchased portion of the Notes surrendered, if any; provided that each such new Note shall be in a principal amount of $1,000 or an integral multiple thereof. The Company shall publicly announce the results of the Change of Control Offer on or as soon as practicable after the Change of Control Payment Date. The provisions set forth above that require the Company to make a Change of Control Offer following a Change of Control shall be applicable regardless of whether or not any other provisions of this Indenture are applicable. Notwithstanding anything to the contrary in this Section 4.10foregoing, the Company shall not be required to make a Change of Control Offer upon a Change of Control (i) if a third party makes the Change of Control Offer in the manner, at the times and otherwise in compliance with the requirements set forth in this Section 4.10 Indenture applicable to a Change of Control Offer made by the Company and purchases all Notes validly tendered and not withdrawn under such Change of Control OfferOffer or (ii) if notice of redemption for all outstanding Notes has been given pursuant to Section 3.07, unless and until there is a default in payment of the applicable redemption price.
(i) In the event that Holders of not less than 90% of the aggregate principal amount of the outstanding Notes accept a Change of Control Offer and the Company purchases all of the Notes held by such Holders, the Company will have the right, upon not less than 30 nor more than 60 days’ prior notice, given not more than 30 days following the purchase pursuant to the Change of Control Offer described under this Section 4.09, to redeem all of the Notes that remain outstanding following such purchase at a redemption price equal to 101% of the aggregate principal amount of Notes redeemed plus accrued and unpaid interest, if any, thereon to the date of redemption.
Appears in 3 contracts
Samples: Indenture (Range Resources Corp), Indenture (Range Resources Corp), Indenture (Range Resources Corp)
Offer to Repurchase Upon a Change of Control. (a) If a Change of Control occurs, unless the Company has exercised its right to redeem the Notes under Section 3.07, each Holder of Notes shall have the right to require the Company to repurchase all or any part (equal to $1,000 2,000 or an integral multiple multiples of $1,000 in excess thereof) of that Holder’s Notes Securities pursuant to a change the Change of control Control offer on the terms set forth in this Indenture (a “Change of Control Offer”). In the Change of Control Offer, the Company shall offer a payment Change of Control Payment in cash equal to 101% of the aggregate principal amount of Notes Securities repurchased plus accrued and unpaid interest and Liquidated Damages, if any, thereon, on the Securities repurchased to the date of purchase (the “Change of Control Payment”)purchase. Within 30 days following any Change of Control, the Company shall mail a notice to each Holder at its registered address. The notice shall contain all instructions and materials necessary to enable such Holder to tender Notes pursuant to stating:
(i) the transaction or transactions that constitute the Change of Control Offer. Any Change of Control Offer shall be made to all Holders. The notice, which shall govern the terms of the Change of Control Offer, shall state: Control;
(1ii) that the Change of Control Offer is being made pursuant to this Section 4.10; 5.9 and that all Securities tendered shall be accepted for payment;
(2iii) the Change of Control Payment purchase price and the date on which Notes tendered and accepted for payment shall be purchasedpurchase date, which date shall be at least no earlier than 30 days and no later than 60 days from the date such the notice is mailed (the “Change of Control Payment Date”); ;
(3iv) that any Note Security not tendered or accepted for payment shall continue to accrete or accrue interest; ;
(4v) that, unless the Company defaults in making such paymentthe payment of the Change of Control Payment, any Note all Securities accepted for payment pursuant to the Change of Control Offer shall cease to accrete or accrue interest after the Change of Control Payment Date; ;
(5vi) that Holders electing to have a Note any Securities purchased pursuant to any a Change of Control Offer shall be required to surrender the NoteSecurities, with the form entitled “Option of Holder to Elect Purchase” on the reverse of the Note Securities completed, or transfer by book-entry transfer, to the Company, a depositary, if appointed by the Company, or the Paying Agent at the address specified in the notice at least three days before prior to the close of business on the third Business Day preceding the Change of Control Payment Date; ;
(6vii) that Holders shall be entitled to withdraw their election if the Company, the depositary or the Paying Agent, as the case may be, Agent receives, not later than the close of business on the second Business Day preceding the Change of Control Payment Date, a notice telegram, telex, facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Note the Holder Securities delivered for purchase purchase, and a statement that such Holder is withdrawing his election to have such Note the Securities purchased; and
(7viii) that Notes and portions of Notes purchased shall be in amounts of $1,000 or whole multiples of $1,000, except that if all of the Notes of a Holder are to be purchased, the entire outstanding amount of Notes held by such Holder, even if not a multiple of $1,000, shall be purchased; and (8) that Holders whose Notes were Securities are being purchased only in part shall be issued new Notes Securities equal in principal amount to the unpurchased portion of the Notes surrendered (or transferred by book-entry transfer)Securities surrendered, which unpurchased portion must be equal to $1,000 in principal amount or an integral multiple thereof. The Company shall comply with the requirements of Section 14(e) and Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such those laws and regulations are applicable in connection with the repurchase of the Notes Securities as a result of a Change of Control. To the extent that the provisions of any securities laws or regulations conflict with the Change of Control provisions of this Indenture, the Company shall comply with the applicable securities laws and regulations and shall will not be deemed to have breached its obligations under the Change of Control provisions of this Indenture by virtue of such conflict. .
(b) On the Change of Control Payment Date, the Company shall, to the extent lawful:
(1i) accept for payment all Notes Securities or portions thereof of Securities properly tendered pursuant to the Change of Control Offeroffer;
(2ii) deposit with the Paying Agent an amount equal to the Change of Control Payment in respect of all Notes Securities or portions thereof so of Securities properly tendered; and
(3iii) deliver or cause to be delivered to the Trustee the Notes Securities so accepted together with an Officers’ Certificate stating the aggregate principal amount of Notes Securities or portions thereof of Securities being purchased by the Company. The Paying Agent shall promptly mail to each Holder of Notes so Securities properly tendered the Change of Control Payment for such NotesSecurities, and the Trustee shall promptly authenticate and mail (or cause to be transferred by book entry) to each Holder a new Note Security equal in principal amount to any unpurchased portion of the Notes Securities surrendered, if any; provided that each such new Note shall Security will be in a principal amount of $1,000 or 2,000 and an integral multiple of $1,000 in excess thereof. The Company shall publicly announce the results of the Change of Control Offer on or as soon as practicable after the Change of Control Payment Date. The provisions set forth described above that require the Company to make a Change of Control Offer following a Change of Control shall will be applicable regardless of whether or not any other provisions of this Indenture are applicable. Notwithstanding anything to the contrary in this Section 4.10, the The Company shall will not be required to make a Change of Control Offer upon a Change of Control if (1) a third party makes the Change of Control Offer in the manner, at the times and otherwise in compliance with the requirements set forth in this Section 4.10 described herein applicable to a Change of Control Offer made by the Company and purchases all Notes Securities validly tendered and not withdrawn under such Change of Control OfferOffer or (2) a notice of redemption has been given pursuant to the Indenture as described under Section 5.8, unless and until there is a default in the payment of the applicable redemption price. A Change of Control Offer may be made in advance of a Change of Control and may be conditional upon the occurrence of a Change of Control if a definitive agreement is in place for the Change of Control at the time the Change of Control Offer is made.
Appears in 3 contracts
Samples: Indenture (Navistar International Corp), Indenture (Navistar, Inc.), Indenture (Navistar International Corp)
Offer to Repurchase Upon a Change of Control. If (a) Upon the occurrence of a Change of Control occurs, unless the Company has exercised its right to redeem the Notes under Section 3.07Control, each Holder of Notes shall have the right to require the Company to repurchase all or any part (equal to $1,000 or an integral multiple thereof) of that Holder’s Notes Securities of each series pursuant to a change of control the offer on described below (the terms set forth in this Indenture (a “Change of Control Offer”). In ) at a repurchase price in cash (the “Change of Control Offer, the Company shall offer a payment in cash Payment”) equal to 101% of the aggregate principal amount of Notes repurchased Securities repurchased, plus accrued and unpaid interest and Liquidated Damages, if any, thereon, thereon to the date of purchase (the “Change of Control Payment”Payment Date (as defined below). .
(b) Within 30 60 days following any Change of Control, the Company shall mail a notice to each Holder at its registered address. The notice shall contain all instructions and materials necessary to enable such Holder to tender Notes pursuant to describing the transaction or transactions that constitute the Change of Control Offer. Any Change of Control Offer shall be made and offering to all Holders. The notice, which shall govern repurchase Securities outstanding on a date (the terms of the Change of Control Offer, shall state: (1) that the Change of Control Offer is being made pursuant to this Section 4.10; (2) the “Change of Control Payment and the date on which Notes tendered and accepted for payment shall be purchasedDate”) specified in such notice, which date shall be at least no earlier than 30 days and no later than 60 days from the date such notice is mailed mailed.
(the “Change of Control Payment Date”); (3c) that any Note not tendered or accepted for payment shall continue to accrete or accrue interest; (4) that, unless the Company defaults in making such payment, any Note accepted for payment pursuant to the Change of Control Offer shall cease to accrete or accrue interest after the Change of Control Payment Date; (5) that Holders electing to have a Note purchased pursuant to any Change of Control Offer shall be required to surrender the Note, with the form entitled “Option of Holder to Elect Purchase” on the reverse of the Note completed, or transfer by book-entry transfer, to the Company, a depositary, if appointed by the Company, or the Paying Agent at the address specified in the notice at least three days before the Change of Control Payment Date; (6) that Holders shall be entitled to withdraw their election if the Company, the depositary or the Paying Agent, as the case may be, receives, not later than On the Change of Control Payment Date, a notice setting forth the name Company shall, to the extent lawful:
(1) accept for payment all Securities or portions thereof properly tendered pursuant to the Change of Control Offer;
(2) deposit with the Paying Agent an amount equal to the Change of Control Payment in respect of all Securities or portions thereof so tendered; and
(3) deliver or cause to be delivered to the Trustee the Securities so accepted together with an Officers’ Certificate of the Holder, Company stating the aggregate principal amount of Securities or portions thereof being purchased by the Note Company.
(d) The Paying Agent shall promptly mail or wire transfer to each Holder of Securities so tendered the Holder delivered Change of Control Payment for purchase such Securities, and a statement that such Holder is withdrawing his election to have such Note purchased; the Trustee shall promptly authenticate and mail (7) that Notes and portions of Notes purchased shall be in amounts of $1,000 or whole multiples of $1,000, except that if all of the Notes of a Holder are cause to be purchased, the entire outstanding amount of Notes held transferred by such Holder, even if not book entry) to each Holder a multiple of $1,000, shall be purchased; and (8) that Holders whose Notes were purchased only in part shall be issued new Notes Security equal in principal amount to the any unpurchased portion of the Notes surrendered (or transferred by book-entry transfer)Securities surrendered, which unpurchased portion must if any; provided that each such new Security shall be equal to $1,000 in a principal amount of $2,000 or an integral multiple of $1,000 in excess thereof.
(e) This Section 1015 shall be applicable regardless of whether any other provisions of this Indenture are applicable, so long as any Securities are outstanding. Except as described above with respect to a Change of Control, this Indenture does not contain provisions that permit the Holders of the Securities to require that the Company repurchase or redeem the Securities in the event of a takeover, recapitalization or similar transaction.
(f) The Company shall comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws and regulations are applicable in connection with the repurchase of the Notes Securities as a result of a Change of Control. To the extent that the provisions of any securities laws or regulations conflict with the Change of Control provisions of this IndentureSection 1015, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under the Change of Control provisions of this Indenture by virtue of such conflict. On the Change of Control Payment Date, the Company shall, to the extent lawful:compliance.
(1g) accept for payment all Notes or portions thereof properly tendered pursuant to the Change of Control Offer;
(2) deposit with the Paying Agent an amount equal to the Change of Control Payment in respect of all Notes or portions thereof so tendered; and
(3) 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. The Paying Agent shall promptly mail to each Holder of Notes so tendered the Change of Control Payment for such Notes, and the Trustee shall promptly authenticate and mail (or cause to be transferred by book entry) to each Holder a new Note equal in principal amount to any unpurchased portion of the Notes surrendered, if any; provided that each such new Note shall be in a principal amount of $1,000 or an integral multiple thereof. The Company shall publicly announce the results of the Change of Control Offer on or as soon as practicable after the Change of Control Payment Date. The provisions set forth above that require the Company to make a Change of Control Offer following a Change of Control shall be applicable regardless of whether or not any other provisions of this Indenture are applicable. Notwithstanding anything to the contrary in this Section 4.10, 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 requirements set forth in this Section 4.10 Indenture applicable to a Change of Control Offer made by the Company and purchases all Notes Securities validly tendered and not withdrawn under such Change of Control Offer.
Appears in 3 contracts
Samples: Indenture (AMC Networks Inc.), Indenture (WE TV Studios LLC), Indenture (Voom HD Holdings LLC)
Offer to Repurchase Upon a Change of Control. If Upon the occurrence of a Change of Control occurs, unless the Company has exercised its right to redeem the Notes under Section 3.07Control, each Holder of Notes shall have the right to require the Company to repurchase all or any part (equal to $1,000 or an integral multiple thereof) of that Holder’s Notes Securities pursuant to a change the Change of control Control offer on the terms set forth in this Indenture (a “Change of Control Offer”). In the Change of Control Offer, the Company shall at an offer a payment price in cash equal to 101% of the aggregate principal amount of Notes Securities repurchased plus accrued and unpaid interest and Liquidated Damagesinterest, if any, thereon, on the Securities repurchased to the date of purchase (the “Change of Control Payment”)purchase. Within 30 days following any Change of Control, the Company shall mail a notice to each Holder at its registered address. The notice shall contain all instructions and materials necessary to enable such Holder to tender Notes pursuant to stating:
(1) the transaction or transactions that constitute the Change of Control Offer. Any Change of Control Offer shall be made to all Holders. The notice, which shall govern the terms of the Change of Control Offer, shall state: Control;
(12) that the Change of Control Offer offer is being made pursuant to this Section 4.10; 15.12 and that all Securities tendered shall be accepted for payment;
(23) the Change of Control Payment purchase price and the date on which Notes tendered and accepted for payment shall be purchasedpurchase date, which date shall be at least no earlier than 30 days and no later than 60 days from the date such the notice is mailed mailed;
(the “Change of Control Payment Date”); (34) that any Note Security not tendered or accepted for payment properly withdrawn shall continue to accrete or accrue interest; ;
(45) that, unless the Company defaults in making such the payment of the Change of Control payment, any Note all Securities accepted for payment pursuant to the Change of Control Offer offer shall cease to accrete or accrue interest after the Change of Control Payment Date; payment date;
(56) that Holders electing to have a Note any Securities purchased pursuant to any a Change of Control Offer offer shall be required to surrender the NoteSecurities, together with the such form entitled “Option of Holder to Elect Purchase” on the reverse of the Note completed, or transfer by book-entry transferforms as may be specified, to the Company, a depositary, if appointed by the Company, or the Paying Agent at the address specified in the notice at least three days before prior to the close of business on the third Business Day preceding the Change of Control Payment Date; payment date;
(67) that Holders shall be entitled to withdraw their election if the Company, the depositary or the Paying Agent, as the case may be, Agent receives, not later than the close of business on the second Business Day preceding the Change of Control Payment Datepayment date, a notice telegram, telex, facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Note the Holder Securities delivered for purchase purchase, and a statement that such Holder is withdrawing his its election to have such Note the Securities purchased; (7) that Notes and portions of Notes purchased shall be in amounts of $1,000 or whole multiples of $1,000, except that if all of the Notes of a Holder are to be purchased, the entire outstanding amount of Notes held by such Holder, even if not a multiple of $1,000, shall be purchased; and and
(8) that Holders whose Notes were Securities are being purchased only in part shall be issued new Notes Securities equal in principal amount to the unpurchased portion of the Notes surrendered (or transferred by book-entry transfer)Securities surrendered, which unpurchased portion must be equal to $1,000 in principal amount or an integral multiple thereof. On the Change of Control payment date, the Company shall, to the extent lawful:
(1) accept for payment all Securities or portions of Securities validly tendered and not properly withdrawn pursuant to the Change of Control offer;
(2) deposit with the Paying Agent an amount equal to the Change of Control payment in respect of all Securities or portions of Securities properly tendered and not properly withdrawn pursuant to the Change of Control offer; and
(3) deliver or cause to be delivered to the Trustee the Securities so accepted together with an Officers’ Certificate stating the aggregate principal amount of Securities or portions of Securities being purchased by the Company. The Paying Agent shall promptly mail to each Holder of Securities validly tendered and not properly withdrawn the Change of Control payment for such Securities, and the Trustee shall promptly authenticate and mail (or cause to be transferred by book entry) to each Holder a new Security equal in principal amount to any unpurchased portion of the Securities surrendered, if any; provided that each new Security will be in a principal amount of $1,000 or an integral multiple thereof. The Company shall publicly announce the results of the Change of Control offer on or as soon as practicable after the Change of Control payment date. 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 requirements set forth in this Indenture applicable to a Change of Control offer made by the Company and purchases all Securities validly tendered and not properly withdrawn under such Change of Control offer. The Company shall comply with the requirements Requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such those laws and regulations are applicable in connection with the repurchase of the Notes Securities as a result of a Change of Control. To the extent that the provisions of any securities laws or regulations conflict with the Change of Control provisions of this Indenture, the Company shall comply with the applicable securities laws and regulations and shall will not be deemed to have breached its obligations under the Change of Control provisions of this Indenture section by virtue of such conflict. On the Change of Control Payment Date, the Company shall, to the extent lawful:
(1) accept for payment all Notes or portions thereof properly tendered pursuant to the Change of Control Offer;
(2) deposit with the Paying Agent an amount equal to the Change of Control Payment in respect of all Notes or portions thereof so tendered; and
(3) 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. The Paying Agent shall promptly mail to each Holder of Notes so tendered the Change of Control Payment for such Notes, and the Trustee shall promptly authenticate and mail (or cause to be transferred by book entry) to each Holder a new Note equal in principal amount to any unpurchased portion of the Notes surrendered, if any; provided that each such new Note shall be in a principal amount of $1,000 or an integral multiple thereof. The Company shall publicly announce the results of the Change of Control Offer on or as soon as practicable after the Change of Control Payment Date. The provisions set forth above that require the Company to make a Change of Control Offer following a Change of Control shall be applicable regardless of whether or not any other provisions of this Indenture are applicable. Notwithstanding anything to the contrary in this Section 4.10, 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 requirements set forth in this Section 4.10 and purchases all Notes validly tendered and not withdrawn under such Change of Control Offer.
Appears in 3 contracts
Samples: Indenture (LTC Properties Inc), Indenture (LTC Properties Inc), Indenture (LTC Properties Inc)
Offer to Repurchase Upon a Change of Control. (a) If a Change of Control occurs, unless the Company has exercised its right to redeem the Notes under Section 3.07, each Holder of Notes shall will have the right to require the Company to repurchase all or any part (equal to $1,000 2,000 or an integral multiple thereofof $1,000 in excess of $2,000) of that Holder’s Notes pursuant to a change of control an offer on the terms set forth in this Indenture (a “Change of Control Offer”)) on the terms set forth in this Section. In the Change of Control Offer, the Company shall will offer a payment in cash (the “Change of Control Payment”) equal to 101% of the aggregate principal amount of Notes repurchased plus accrued and unpaid interest and Liquidated Damagesinterest, if any, thereon, on the Notes repurchased to the date of purchase (the “Change of Control PaymentPayment Date”), subject to the rights of Holders of Notes on the relevant Record Date to receive interest due on the relevant Interest Payment Date. Within 30 days following any Change of Control, or, at the Company’s option, prior to such Change of Control but after it is publicly announced, the Company shall will deliver electronically, if held at DTC, or mail a notice to each Holder at its registered address. The notice shall contain all instructions and materials necessary to enable such Holder to tender Notes pursuant to describing the transaction or transactions that constitute the Change of Control Offer. Any Change of Control Offer shall be made to all Holders. The notice, which shall govern the terms of the Change of Control Offer, shall state: and stating:
(1) that the Change of Control Offer is being made pursuant to this Section 4.10; 4.11 and that all Notes tendered will be accepted for payment;
(2) the purchase price and the Change of Control Payment and the date on Date, which Notes tendered and accepted for payment shall be purchased, which date shall be at least no earlier than 30 days and no later than 60 days from the date such notice is mailed (or such later date as is necessary to comply with requirements under the “Change of Control Payment Date”); Exchange Act;
(3) that any Note not tendered or accepted for payment shall will continue to accrete or accrue interest; ;
(4) that, unless the Company defaults in making such paymentthe payment of the Change of Control Payment, any Note all Notes accepted for payment pursuant to the Change of Control Offer shall will cease to accrete or accrue interest after the Change of Control Payment Date; ;
(5) that Holders electing to have a Note any Notes purchased pursuant to any a Change of Control Offer shall will be required to surrender the NoteNotes, with the form entitled “Option of Holder to Elect Purchase” on attached to the reverse of the Note Notes completed, or transfer the Notes by book-entry transfer, to the Company, a depositary, if appointed by the Company, or the Paying Agent at the address specified in the notice at least three days before prior to the close of business on the Business Day immediately preceding the Change of Control Payment Date; ;
(6) that Holders shall will be entitled to withdraw their election if the Company, the depositary or the Paying Agent, as the case may be, Agent receives, not later than the close of business on the Business Day immediately preceding the Change of Control Payment Date, a notice telegram, telex, facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Note the Holder Notes delivered for purchase purchase, and a statement that such Holder is withdrawing his election to have such Note all or a portion of the Notes purchased; and
(7) that Notes and portions of Notes purchased shall be in amounts of $1,000 or whole multiples of $1,000, except that if all of the Notes of a Holder are to be purchased, the entire outstanding amount of Notes held by such Holder, even if not a multiple of $1,000, shall be purchased; and (8) that Holders whose Notes were are being purchased only in part shall will be issued new Notes equal in principal amount to the unpurchased portion of the Notes surrendered (or transferred by book-entry transfer), which unpurchased portion must be equal to $1,000 2,000 in principal amount or an integral multiple thereof. of $1,000 in excess of $2,000.
(b) The Company shall will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such those laws and regulations are applicable in connection with the repurchase of the Notes as a result of a Change of Control. To the extent that the provisions of any securities laws or regulations conflict with the Change of Control provisions of this Indenture, the Company shall will comply with the applicable securities laws and regulations and shall will not be deemed to have breached its obligations under the Change of Control provisions of this Indenture Section by virtue of such conflict. compliance.
(c) On the Change of Control Payment Date, the Company shallwill, to the extent lawful:
(1) accept for payment all Notes or portions thereof of Notes properly tendered pursuant to the Change of Control Offer;
(2) deposit with the Paying Agent an amount equal to the Change of Control Payment in respect of all Notes or portions thereof so of Notes properly tendered; and
(3) deliver or cause to be delivered to the Trustee the Notes so properly accepted together with an Officers’ Certificate stating stating, the aggregate principal amount of Notes or portions thereof of Notes being purchased by the Company. .
(d) The Paying Agent shall will promptly mail or wire transfer to each Holder of Notes so properly tendered the Change of Control Payment for such NotesNotes (or, if all the Notes are then in global form, make such payment through the facilities of the Depositary), and the Trustee shall will promptly authenticate and mail (or cause to be transferred by book entry) to each Holder a new Note equal in principal amount to any unpurchased portion of the Notes surrendered, if any; provided that each such new Note shall issued by the Company will be in a principal amount of $1,000 2,000 or an integral multiple thereofof $1,000 in excess of $2,000. Any Note so accepted for payment will cease to accrue interest on and after the Change of Control Payment Date unless the Company defaults in making the Change of Control Payment.
(e) The Company shall will publicly announce the results of the Change of Control Offer on or as soon as practicable after the Change of Control Payment Date.
(f) Notwithstanding anything to the contrary in this Section, the Company will not be required to make a Change of Control Offer upon a Change of Control if (i) a third party makes the Change of Control Offer in the manner, at the price, at the times and otherwise in compliance with the requirements set forth in this Indenture applicable to a Change of Control Offer made by the Company and purchases all Notes properly tendered and not withdrawn under the Change of Control Offer, or (ii) the Company has given notice of redemption pursuant to Section 3.01 of this Indenture with respect to all outstanding Notes unless and until there is a Default in payment of the applicable redemption price.
(g) A Change of Control Offer may be made in advance of a Change of Control, and conditioned upon the occurrence of such Change of Control, if a definitive agreement is in place for the Change of Control at the time of making the Change of Control Offer. Notes repurchased by the Company pursuant to a Change of Control Offer will have the status of Notes issued but not outstanding or will be retired and cancelled, at the Company’s option. Notes purchased by a third party pursuant to clause (f) of this Section will have the status of Notes issued and outstanding.
(h) In the event that Holders of at least 90% of the aggregate principal amount of the outstanding Notes accept a Change of Control Offer and the Company (or any third party making such Change of Control Offer, in lieu of the Company, as described in paragraph (f) of this Section) purchases all of the Notes held by such Holders, the Company will have the right, upon not less than 30 nor more than 60 days’ prior notice, given not more than 30 days following a Change of Control Payment Date, to redeem all, but not less than all, of the Notes that remain outstanding at a redemption price equal to the Change of Control Payment plus, to the extent not included in the Change of Control Payment, accrued and unpaid interest, if any, on the Notes that remain outstanding, to the date of redemption (subject to the right of Holders on the relevant record date to receive interest due on the relevant Interest Payment Date).
(i) The provisions set forth above of this Section that require the Company to make a Change of Control Offer following a Change of Control shall will be applicable regardless of whether or not any other provisions of this Indenture are applicable. Notwithstanding anything to the contrary in this Section 4.10, 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 requirements set forth in this Section 4.10 and purchases all Notes validly tendered and not withdrawn under such Change of Control Offer.
Appears in 3 contracts
Samples: Indenture, Indenture (Rex Energy Corp), Indenture (Rex Energy Corp)
Offer to Repurchase Upon a Change of Control. If Upon the occurrence of a Change of Control occurs, unless the Company has exercised its right to redeem the Notes under Section 3.07Control, each Holder of Notes shall have the right to require the Company to repurchase all or any part (equal to $1,000 or an integral multiple thereof) of that Holder’s Notes Securities pursuant to a change the Change of control Control offer on the terms set forth in this Indenture (a “Change of Control Offer”). In the Change of Control Offer, the Company shall at an offer a payment price in cash equal to 101% of the aggregate principal amount of Notes Securities repurchased plus accrued and unpaid interest and Liquidated Damagesinterest, if any, thereon, on the Securities repurchased to the date of purchase (the “Change of Control Payment”)purchase. Within 30 days following any Change of Control, the Company shall mail a notice to each Holder at its registered address. The notice shall contain all instructions and materials necessary to enable such Holder to tender Notes pursuant to stating:
(1) the transaction or transactions that constitute the Change of Control Offer. Any Change of Control Offer shall be made to all Holders. The notice, which shall govern the terms of the Change of Control Offer, shall state: Control;
(12) that the Change of Control Offer offer is being made pursuant to this Section 4.10; 14.12 and that all Securities tendered shall be accepted for payment;
(23) the Change of Control Payment purchase price and the date on which Notes tendered and accepted for payment shall be purchasedpurchase date, which date shall be at least no earlier than 30 days and no later than 60 days from the date such the notice is mailed mailed;
(the “Change of Control Payment Date”); (34) that any Note Security not tendered or accepted for payment properly withdrawn shall continue to accrete or accrue interest; ;
(45) that, unless the Company defaults in making such the payment of the Change of Control payment, any Note all Securities accepted for payment pursuant to the Change of Control Offer offer shall cease to accrete or accrue interest after the Change of Control Payment Date; payment date;
(56) that Holders electing to have a Note any Securities purchased pursuant to any a Change of Control Offer offer shall be required to surrender the NoteSecurities, together with the such form entitled “Option of Holder to Elect Purchase” on the reverse of the Note completed, or transfer by book-entry transferforms as may be specified, to the Company, a depositary, if appointed by the Company, or the Paying Agent at the address specified in the notice at least three days before prior to the close of business on the third Business Day preceding the Change of Control Payment Date; payment date;
(67) that Holders shall be entitled to withdraw their election if the Company, the depositary or the Paying Agent, as the case may be, Agent receives, not later than the close of business on the second Business Day preceding the Change of Control Payment Datepayment date, a notice telegram, telex, facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Note the Holder Securities delivered for purchase purchase, and a statement that such Holder is withdrawing his its election to have such Note the Securities purchased; (7) that Notes and portions of Notes purchased shall be in amounts of $1,000 or whole multiples of $1,000, except that if all of the Notes of a Holder are to be purchased, the entire outstanding amount of Notes held by such Holder, even if not a multiple of $1,000, shall be purchased; and and
(8) that Holders whose Notes were Securities are being purchased only in part shall be issued new Notes Securities equal in principal amount to the unpurchased portion of the Notes surrendered (or transferred by book-entry transfer)Securities surrendered, which unpurchased portion must be equal to $1,000 in principal amount or an integral multiple thereof. On the Change of Control payment date, the Company shall, to the extent lawful:
(1) accept for payment all Securities or portions of Securities validly tendered and not properly withdrawn pursuant to the Change of Control offer;
(2) deposit with the Paying Agent an amount equal to the Change of Control payment in respect of all Securities or portions of Securities properly tendered and not properly withdrawn pursuant to the Change of Control offer; and
(3) deliver or cause to be delivered to the Trustee the Securities so accepted together with an Officers’ Certificate stating the aggregate principal amount of Securities or portions of Securities being purchased by the Company. The Paying Agent shall promptly mail to each Holder of Securities validly tendered and not properly withdrawn the Change of Control payment for such Securities, and the Trustee shall promptly authenticate and mail (or cause to be transferred by book entry) to each Holder a new Security equal in principal amount to any unpurchased portion of the Securities surrendered, if any; provided that each new Security will be in a principal amount of $1,000 or an integral multiple thereof. The Company shall publicly announce the results of the Change of Control offer on or as soon as practicable after the Change of Control payment date. 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 requirements set forth in this Indenture applicable to a Change of Control offer made by the Company and purchases all Securities validly tendered and not properly withdrawn under such Change of Control offer. The Company shall comply with the requirements Requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such those laws and regulations are applicable in connection with the repurchase of the Notes Securities as a result of a Change of Control. To the extent that the provisions of any securities laws or regulations conflict with the Change of Control provisions of this Indenture, the Company shall comply with the applicable securities laws and regulations and shall will not be deemed to have breached its obligations under the Change of Control provisions of this Indenture section by virtue of such conflict. On the Change of Control Payment Date, the Company shall, to the extent lawful:
(1) accept for payment all Notes or portions thereof properly tendered pursuant to the Change of Control Offer;
(2) deposit with the Paying Agent an amount equal to the Change of Control Payment in respect of all Notes or portions thereof so tendered; and
(3) 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. The Paying Agent shall promptly mail to each Holder of Notes so tendered the Change of Control Payment for such Notes, and the Trustee shall promptly authenticate and mail (or cause to be transferred by book entry) to each Holder a new Note equal in principal amount to any unpurchased portion of the Notes surrendered, if any; provided that each such new Note shall be in a principal amount of $1,000 or an integral multiple thereof. The Company shall publicly announce the results of the Change of Control Offer on or as soon as practicable after the Change of Control Payment Date. The provisions set forth above that require the Company to make a Change of Control Offer following a Change of Control shall be applicable regardless of whether or not any other provisions of this Indenture are applicable. Notwithstanding anything to the contrary in this Section 4.10, 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 requirements set forth in this Section 4.10 and purchases all Notes validly tendered and not withdrawn under such Change of Control Offer.
Appears in 3 contracts
Samples: Indenture (LTC Properties Inc), Indenture (LTC Properties Inc), Indenture (LTC Properties Inc)
Offer to Repurchase Upon a Change of Control. (a) If a Change of Control occurs, unless the Company has exercised its right to redeem the Notes under Section 3.07, each Holder of Notes shall will have the right to require that the Company to repurchase purchase all or any part (equal to in amounts of $1,000 or an integral multiple whole multiples of $1,000 in excess thereof) of that such Holder’s Notes pursuant to a change of control the offer on described below (the terms set forth in this Indenture (a “Change of Control Offer”). In the Change of Control Offer, the Company shall will offer to purchase all of the Notes, at a payment purchase price (the “Change of Control Purchase Price”) in cash in an amount equal to 101% of the aggregate principal amount of Notes repurchased such Notes, plus accrued and unpaid interest and Liquidated Damagesinterest, if any, thereon, to the date of purchase (the “Change of Control PaymentPurchase Date”). , subject to the rights of Holders of record on relevant record dates to receive interest due on an Interest Payment Date.
(b) Within 30 days following after any Change of ControlControl or, at the Company’s option, prior to such Change of Control but after it is publicly announced, the Company shall mail a must notify the Trustee in writing and give written notice to each Holder at its registered address. The notice shall contain all instructions and materials necessary to enable such Holder to tender Notes pursuant to the Change of Control Offer. Any Change of Control Offer shall be made to all Holders. The notice, which shall govern the terms of the Change of Control Offer(the “Change of Control Purchase Notice”) to each Holder of Notes, shall by first-class mail, postage prepaid, at his address appearing in the security register. The Change of Control Purchase Notice must state: , among other things:
(1) that the a Change of Control Offer is being made pursuant to this Section 4.10; has occurred or will occur and the date of such event;
(2) the circumstances and relevant facts regarding such Change of Control;
(3) the Change of Control Payment Purchase Price and the date on Change of Control Purchase Date, which Notes tendered and accepted for payment shall be purchased, which date shall be at least fixed by the Company on a Business Day no earlier than 30 days and no nor later than 60 days from the date such the notice is mailed (mailed, or such later date as is necessary to comply with requirements under the “Exchange Act; provided that the Change of Control Payment Date”); Purchase Date may not occur prior to the Change of Control;
(34) that any Note not tendered or accepted for payment shall will continue to accrete or accrue interest; ;
(45) that, unless the Company defaults in making such paymentthe payment of the Change of Control Purchase Price, any Note Notes accepted for payment pursuant to the Change of Control Offer shall cease to accrete or accrue interest after the Change of Control Payment Purchase Date; and
(56) other procedures that a Holder of Notes must follow to accept a Change of Control Offer or to withdraw acceptance of the Change of Control Offer.
(c) Upon receipt by the Company of the proper tender of Notes, the Holder of the Note in respect of which such proper tender was made shall (unless the tender of such Note is properly withdrawn at least one Business Day prior to the Change of Control Purchase Date) thereafter be entitled to receive solely the Change of Control Purchase Price with respect to such Notes. Upon surrender of any such Note for purchase in accordance with the foregoing provisions, such Note shall be paid by the Company at the Change of Control Purchase Price; provided, however, that installments of interest whose Stated Maturity is on or prior to the Change of Control Purchase Date shall be payable to the Holders of such Notes, registered as such on the relevant record dates according to the terms and the provisions of Section 2.03. If any Note tendered for purchase in accordance with the provisions of this Section 4.11 shall not be so paid upon surrender thereof, the principal thereof (and premium, if any, thereon) shall, until paid, bear interest from the Change of Control Purchase Date at the rate borne by such Note. Holders electing to have a Note Notes purchased pursuant to any Change of Control Offer shall will be required to surrender the Note, with the form entitled “Option of Holder such Notes to Elect Purchase” on the reverse of the Note completed, or transfer by book-entry transfer, to the Company, a depositary, if appointed by the Company, or the Paying Agent at the address specified in the notice Change of Control Purchase Notice at least three days before one Business Day prior to the Change of Control Payment Purchase Date; (6) . Any Note that Holders is to be purchased only in part shall be entitled surrendered to withdraw their election a Paying Agent at the office of such Paying Agent (with, if the Company, the depositary Registrar or the Paying AgentTrustee so require, due endorsement by, or a written instrument of transfer in form satisfactory to the Company and the Registrar or the Trustee, as the case may be, receivesduly executed by, the Holder thereof or such Holder’s 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, one or more new Notes of any authorized denomination as requested by such Holder in an aggregate principal amount equal to, and in exchange for, the portion of the principal amount of the Note so surrendered that is not purchased.
(d) The Company shall (i) not later than the Change of Control Payment Purchase Date, accept for payment Notes or portions thereof tendered pursuant to the Change of Control Offer, (ii) not later than 1:00 p.m. (New York time) on the Business Day following the Change of Control Purchase Date, deposit with the Trustee or with a Paying Agent an amount of money in same day funds sufficient to pay the aggregate Change of Control Purchase Price of all the Notes or portions thereof which have been so accepted for payment and (iii) not later than 1:00 p.m. (New York time) on the Business Day following the Change of Control Purchase Date, deliver to the Paying Agent an Officers’ Certificate stating the Notes or portions thereof accepted for payment by the Company. The Paying Agent shall promptly mail or deliver to Holders of Notes so accepted payment in an amount equal to the Change of Control Purchase Price of the Notes purchased from each such Holder, and the Company shall execute and the Trustee shall promptly authenticate and mail or deliver to such Holders a new Note equal in principal amount to any unpurchased portion of the Note surrendered. Any Notes not so accepted shall be promptly mailed or delivered by the Paying Agent at the Company’s expense to the Holder thereof. The Company will publicly announce the results of the Change of Control Offer on the Change of Control Purchase Date. For purposes of this Section 4.11, the Company shall choose a Paying Agent which shall not be the Company.
(e) A tender made in response to a Change of Control Purchase Notice may be withdrawn if the Company receives, not later than one Business Day prior to the Change of Control Purchase Date, a notice setting forth telegram, telex, facsimile transmission or letter, specifying, as applicable:
(1) the name of the Holder, ;
(2) the certificate number of the Note in respect of which such notice of withdrawal is being submitted;
(3) the principal amount of the Note the Holder (which shall be $1,000 or whole multiples of $1,000 in excess thereof) delivered for purchase and by the Company as to which such notice of withdrawal is being submitted;
(4) a statement that such Holder is withdrawing his election to have such principal amount of such Note purchased; and
(75) that Notes and portions the principal amount, if any, of Notes purchased such Note (which shall be in amounts of $1,000 or whole multiples of $1,0001,000 in excess thereof) that remains subject to the original Change of Control Purchase Notice and that has been or will be delivered for purchase by the Company.
(f) The Trustee and the Paying Agent shall return to the Company, except upon its request, any cash that remains unclaimed for two years after a Change of Control Purchase Date together with interest or dividends, if any, thereon (subject to Section 7.01(f)), held by them for the payment of the Change of Control Purchase Price; and the Holder of such tendered and accepted Note shall thereafter look only to the Company for payment thereof, and all liability of the Trustee or such Paying Agent with respect to such cash, and all liability of the Company as trustee thereof, shall thereupon cease; provided, however, that the Trustee or such Paying Agent, before being required to make any such repayment, shall at the expense of the Company cause to be published once in The New York Times and The Wall Street Journal (national edition) or send to each Holder entitled to such money notice that such money remains unclaimed and that, after a date specified therein, which shall not be less than 30 days from the date of such notification or publication, any unclaimed balance of such money then remaining shall be repaid to the Company; provided, further however, that (x) to the extent that the aggregate amount of cash deposited by the Company pursuant to clause (ii) of paragraph (d) of this Section 4.11 exceeds the aggregate Change of Control Purchase Price of the Notes of a Holder are or portions thereof to be purchased, then the entire outstanding amount of Notes held by Trustee shall hold such Holder, even if not a multiple of $1,000, shall be purchased; excess for the Company and (8) that Holders whose Notes were purchased only y) unless otherwise directed by the Company in part writing, promptly after the Business Day following the Change of Control Purchase Date the Trustee shall be issued new Notes equal in principal amount return any such excess to the unpurchased portion of the Notes surrendered Company together with interest, if any, thereon (or transferred by book-entry transfersubject to Section 7.01(f), which unpurchased portion must be equal to $1,000 in principal amount or an integral multiple thereof. ).
(g) The Company shall comply with the requirements of applicable tender offer rules, including Rule 14e-1 under the Exchange Act Act, and any other applicable securities laws and or regulations thereunder to the extent such laws and regulations are applicable in connection with the repurchase of the Notes as a result of a Change of ControlControl Offer. To the extent that the provisions of any securities laws or regulations conflict with the Change of Control provisions of this IndentureSection 4.11, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under the Change of Control provisions of this Indenture Section 4.11 by virtue of such conflict. On the Change of Control Payment Date, the Company shall, to the extent lawful:.
(1h) accept for payment all Notes or portions thereof properly tendered pursuant to Notwithstanding the Change of Control Offer;
(2) deposit with the Paying Agent an amount equal to the Change of Control Payment in respect of all Notes or portions thereof so tendered; and
(3) 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. The Paying Agent shall promptly mail to each Holder of Notes so tendered the Change of Control Payment for such Notes, and the Trustee shall promptly authenticate and mail (or cause to be transferred by book entry) to each Holder a new Note equal in principal amount to any unpurchased portion of the Notes surrendered, if any; provided that each such new Note shall be in a principal amount of $1,000 or an integral multiple thereof. The Company shall publicly announce the results of the Change of Control Offer on or as soon as practicable after the Change of Control Payment Date. The provisions set forth above that require the Company to make a Change of Control Offer following a Change of Control shall be applicable regardless of whether or not any other provisions of this Indenture are applicable. Notwithstanding anything to the contrary in this Section 4.10foregoing, the Company shall not be required to make a Change of Control Offer (i) 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 requirements set forth in this Section 4.10 Indenture applicable to a Change of Control Offer made by the Company and purchases all Notes validly tendered and not withdrawn under such Change of Control OfferOffer or (ii) if notice of redemption for 100% of the aggregate principal amount of the outstanding Notes has been given pursuant to Section 3.07, unless and until there is a default in payment of the applicable redemption price.
(i) In the event that Holders of not less than 90% of the aggregate principal amount of the outstanding Notes accept a Change of Control Offer and the Company purchases all of the Notes held by such Holders, the Company will have the right, upon not less than 30 nor more than 60 days’ prior notice, given not more than 30 days following the purchase pursuant to the Change of Control Offer described under this Section 4.11, to redeem all of the Notes that remain outstanding following such purchase at a redemption price equal to 101% of the aggregate principal amount of Notes redeemed plus accrued and unpaid interest, if any, thereon to the date of redemption, subject to the right of the Holders of record on relevant record dates to receive interest due on an Interest Payment Date.
Appears in 2 contracts
Samples: Indenture (Continental Resources, Inc), Indenture (Continental Resources, Inc)
Offer to Repurchase Upon a Change of Control. (a) If a Change of Control occurs, unless the Company has exercised its right to redeem the Notes under Section 3.07, each Holder of Notes shall will have the right to require that the Company to repurchase purchase all or any part (equal to in amounts of $1,000 or an integral multiple whole multiples of $1,000 in excess thereof) of that such Holder’s Notes pursuant to a change of control the offer on described below (the terms set forth in this Indenture (a ““ Change of Control OfferOffer ”). In the Change of Control Offer, the Company shall will offer to purchase all of the Notes, at a payment purchase price (the “ Change of Control Purchase Price ”) in cash in an amount equal to 101% of the aggregate principal amount of Notes repurchased such Notes, plus accrued and unpaid interest and Liquidated Damagesinterest, if any, thereon, to the date of purchase (the ““ Change of Control PaymentPurchase Date ”). , subject to the rights of Holders of record on relevant record dates to receive interest due on an Interest Payment Date.
(b) Within 30 days following after any Change of ControlControl or, at the Company’s option, prior to such Change of Control but after it is publicly announced, the Company shall mail a must notify the Trustee and give written notice to each Holder at its registered address. The notice shall contain all instructions and materials necessary to enable such Holder to tender Notes pursuant to the Change of Control Offer. Any Change of Control Offer shall be made to all Holders. The notice, which shall govern the terms of the Change of Control Offer(the “ Change of Control Purchase Notice ”) to each Holder of Notes, shall by first-class mail, postage prepaid, at his address appearing in the security register. The Change of Control Purchase Notice must state: , among other things,
(1) that the a Change of Control Offer is being made pursuant to this Section 4.10; has occurred or will occur and the date of such event;
(2) the circumstances and relevant facts regarding such Change of Control;
(3) the Change of Control Payment Purchase Price and the date on Change of Control Purchase Date, which Notes tendered and accepted for payment shall be purchased, which date shall be at least fixed by the Company on a Business Day no earlier than 30 days and no nor later than 60 days from the date such the notice is mailed (mailed, or such later date as is necessary to comply with requirements under the “Exchange Act; provided that the Change of Control Payment Date”); Purchase Date may not occur prior to the Change of Control;
(34) that any Note not tendered or accepted for payment shall will continue to accrete or accrue interest; ;
(45) that, unless the Company defaults in making such paymentthe payment of the Change of Control Purchase Price, any Note Notes accepted for payment pursuant to the Change of Control Offer shall cease to accrete or accrue interest after the Change of Control Payment Purchase Date; and
(56) other procedures that a Holder of Notes must follow to accept a Change of Control Offer or to withdraw acceptance of the Change of Control Offer.
(c) Upon receipt by the Company of the proper tender of Notes, the Holder of the Note in respect of which such proper tender was made shall (unless the tender of such Note is properly withdrawn at least one Business Day prior to the Change of Control Purchase Date) thereafter be entitled to receive solely the Change of Control Purchase Price with respect to such Notes. Upon surrender of any such Note for purchase in accordance with the foregoing provisions, such Note shall be paid by the Company at the Change of Control Purchase Price; provided, however, that installments of interest whose Stated Maturity is on or prior to the Change of Control Purchase Date shall be payable to the Holders of such Notes, registered as such on the relevant record dates according to the terms and the provisions of Section 2.03. If any Note tendered for purchase in accordance with the provisions of this Section 4.19 shall not be so paid upon surrender thereof, the principal thereof (and premium, if any, thereon) shall, until paid, bear interest from the Change of Control Purchase Date at the rate borne by such Note. Holders electing to have a Note Notes purchased pursuant to any Change of Control Offer shall will be required to surrender the Note, with the form entitled “Option of Holder such Notes to Elect Purchase” on the reverse of the Note completed, or transfer by book-entry transfer, to the Company, a depositary, if appointed by the Company, or the Paying Agent at the address specified in the notice Change of Control Purchase Notice at least three days before one Business Day prior to the Change of Control Payment Purchase Date; (6) . Any Note that Holders is to be purchased only in part shall be entitled surrendered to withdraw their election a Paying Agent at the office of such Paying Agent (with, if the Company, the depositary Registrar or the Paying AgentTrustee so require, due endorsement by, or a written instrument of transfer in form satisfactory to the Company and the Registrar or the Trustee, as the case may be, receivesduly executed by, the Holder thereof or such Holder’s 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, one or more new Notes of any authorized denomination as requested by such Holder in an aggregate principal amount equal to, and in exchange for, the portion of the principal amount of the Note so surrendered that is not purchased.
(d) The Company shall (i) not later than the Change of Control Payment Purchase Date, a notice setting forth the name of the Holder, the principal amount of the Note the Holder delivered for purchase and a statement that such Holder is withdrawing his election to have such Note purchased; (7) that Notes and portions of Notes purchased shall be in amounts of $1,000 or whole multiples of $1,000, except that if all of the Notes of a Holder are to be purchased, the entire outstanding amount of Notes held by such Holder, even if not a multiple of $1,000, shall be purchased; and (8) that Holders whose Notes were purchased only in part shall be issued new Notes equal in principal amount to the unpurchased portion of the Notes surrendered (or transferred by book-entry transfer), which unpurchased portion must be equal to $1,000 in principal amount or an integral multiple thereof. The Company shall comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws and regulations are applicable in connection with the repurchase of the Notes as a result of a Change of Control. To the extent that the provisions of any securities laws or regulations conflict with the Change of Control provisions of this Indenture, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under the Change of Control provisions of this Indenture by virtue of such conflict. On the Change of Control Payment Date, the Company shall, to the extent lawful:
(1) accept for payment all Notes or portions thereof properly tendered pursuant to the Change of Control Offer;
, (2ii) not later than 1:00 p.m. (New York time) on the Business Day following the Change of Control Purchase Date, deposit with the Trustee or with a Paying Agent an amount equal of money in same day funds sufficient to pay the aggregate Change of Control Purchase Price of all the Notes or portions thereof which have been so accepted for payment and (iii) not later than 1:00 p.m. (New York time) on the Business Day following the Change of Control Payment in respect of all Notes or portions thereof so tendered; and
(3) Purchase Date, deliver or cause to be delivered to the Trustee the Notes so accepted together with Paying Agent an Officers’ Certificate stating the aggregate principal amount of Notes or portions thereof being purchased accepted for payment by the Company. The Paying Agent shall promptly mail or deliver to each Holder Holders of Notes so tendered accepted payment in an amount equal to the Change of Control Payment for such Notes, and the Trustee shall promptly authenticate and mail (or cause to be transferred by book entry) to each Holder a new Note equal in principal amount to any unpurchased portion of the Notes surrendered, if any; provided that each such new Note shall be in a principal amount of $1,000 or an integral multiple thereof. The Company shall publicly announce the results of the Change of Control Offer on or as soon as practicable after the Change of Control Payment Date. The provisions set forth above that require the Company to make a Change of Control Offer following a Change of Control shall be applicable regardless of whether or not any other provisions of this Indenture are applicable. Notwithstanding anything to the contrary in this Section 4.10, 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 requirements set forth in this Section 4.10 and purchases all Notes validly tendered and not withdrawn under such Change of Control Offer.Control
Appears in 2 contracts
Samples: Indenture (Continental Resources, Inc), Indenture (Continental Resources, Inc)
Offer to Repurchase Upon a Change of Control. If a Change of Control occurs, unless the Company has exercised its right to redeem the Notes under Section 3.07, each Holder of Notes shall have the right to require the Company to repurchase all or any part (equal to $1,000 or an integral multiple thereof) of that Holder’s 's Notes pursuant to a change of control offer on the terms set forth in this Indenture (a “Change of Control Offer”"CHANGE OF CONTROL OFFER"). In the Change of Control Offer, the Company shall offer a payment in cash equal to 101% of the aggregate principal amount of Notes repurchased plus accrued and unpaid interest and Liquidated Damages, if any, thereon, to the date of purchase (the “Change of Control Payment”"CHANGE OF CONTROL PAYMENT"). Within 30 days following any Change of Control, the Company shall mail a notice to each Holder at its registered address. The notice shall contain all instructions and materials necessary to enable such Holder to tender Notes pursuant to the Change of Control Offer. Any Change of Control Offer shall be made to all Holders. The notice, which shall govern the terms of the Change of Control Offer, shall state: (1) that the Change of Control Offer is being made pursuant to this Section 4.10; (2) the Change of Control Payment and the date on which Notes tendered and accepted for payment shall be purchased, which date shall be at least 30 days and no later than 60 days from the date such notice is mailed (the “Change of Control Payment Date”"CHANGE OF CONTROL PAYMENT DATE"); (3) that any Note not tendered or accepted for payment shall continue to accrete or accrue interest; (4) that, unless the Company defaults in making such payment, any Note accepted for payment pursuant to the Change of Control Offer shall cease to accrete or accrue interest after the Change of Control Payment Date; (5) that Holders electing to have a Note purchased pursuant to any Change of Control Offer shall be required to surrender the Note, with the form entitled “"Option of Holder to Elect Purchase” " on the reverse of the Note completed, or transfer by book-entry transfer, to the Company, a depositary, if appointed by the Company, or the Paying Agent at the address specified in the notice at least three days before the Change of Control Payment Date; (6) that Holders shall be entitled to withdraw their election if the Company, the depositary or the Paying Agent, as the case may be, receives, not later than the Change of Control Payment Date, a notice setting forth the name of the Holder, the principal amount of the Note the Holder delivered for purchase and a statement that such Holder is withdrawing his election to have such Note purchased; (7) that Notes and portions of Notes purchased shall be in amounts of $1,000 or whole multiples of $1,000, except that if all of the Notes of a Holder are to be purchased, the entire outstanding amount of Notes held by such Holder, even if not a multiple of $1,000, shall be purchased; and (8) that Holders whose Notes were purchased only in part shall be issued new Notes equal in principal amount to the unpurchased portion of the Notes surrendered (or transferred by book-entry transfer), which unpurchased portion must be equal to $1,000 in principal amount or an integral multiple thereof. The Company shall comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws and regulations are applicable in connection with the repurchase of the Notes as a result of a Change of Control. To the extent that the provisions of any securities laws or regulations conflict with the Change of Control provisions of this Indenture, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under the Change of Control provisions of this Indenture by virtue of such conflict. On the Change of Control Payment Date, the Company shall, to the extent lawful:
(1) accept for payment all Notes or portions thereof properly tendered pursuant to the Change of Control Offer;
(2) deposit with the Paying Agent an amount equal to the Change of Control Payment in respect of all Notes or portions thereof so tendered; and
(3) 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. The Paying Agent shall promptly mail to each Holder of Notes so tendered the Change of Control Payment for such Notes, and the Trustee shall promptly authenticate and mail (or cause to be transferred by book entry) to each Holder a new Note equal in principal amount to any unpurchased portion of the Notes surrendered, if any; provided PROVIDED that each such new Note shall be in a principal amount of $1,000 or an integral multiple thereof. The Company shall publicly announce the results of the Change of Control Offer on or as soon as practicable after the Change of Control Payment Date. The provisions set forth above that require the Company to make a Change of Control Offer following a Change of Control shall be applicable regardless of whether or not any other provisions of this Indenture are applicable. Notwithstanding anything to the contrary in this Section 4.10, 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 requirements set forth in this Section 4.10 and purchases all Notes validly tendered and not withdrawn under such Change of Control Offer.
Appears in 2 contracts
Samples: First Supplemental Indenture (NHW Auburn LLC), Third Supplemental Indenture (Oi Aid STS Inc)
Offer to Repurchase Upon a Change of Control. If a Change of Control occursoccurs at any time, unless the Company has exercised its right will be required to redeem the Notes under Section 3.07, each Holder offer (“Change of Notes shall have the right to require the Company Control Offer”) to repurchase for cash all of such Holder’s Notes, or any part (portion thereof that is equal to $1,000 or an integral multiple thereof) of that Holder’s Notes pursuant to a change of control offer $1,000, on the terms set forth in this Indenture date (a the “Change of Control OfferRepurchase Date”) specified by the Company that is not less than 20 calendar days or more than 35 calendar days following the date of the Change of Control Company Notice at a repurchase price equal to 100% of the principal amount thereof, plus any accrued and unpaid interest thereon to, but excluding, the Change of Control Repurchase Date (the “Change of Control Repurchase Price”). In , unless the Change of Control Repurchase Date falls after an Interest Record Date but on or prior to the Interest Payment Date to which such Interest Record Date relates, in which case the Company shall instead pay the full amount of any accrued and unpaid interest to Holders of record as of such Interest Record Date, and the Change of Control Repurchase Price shall be equal to 100% of the principal amount of Notes to be repurchased pursuant to this Section 15.05.
(a) Upon the commencement of a Change of Control Offer, the Company shall offer send, or cause to be sent, by first class mail or electronically, a payment in cash equal to 101% of the aggregate principal amount of Notes repurchased plus accrued and unpaid interest and Liquidated Damages, if any, thereon, notice to the date of purchase (the “Change of Control Payment”). Within 30 days following any Change of ControlTrustee, the Company shall mail a notice Collateral Trustee and to each Holder at its registered address. The notice shall contain all instructions and materials necessary to enable such Holder to tender Notes pursuant to the Change of Control Offer. Any Change of Control Offer shall be made to all Holders. The notice, which shall govern the terms of the Change of Control Offer, shall state: :
(1A) that the Change of Control Offer is being made pursuant to this Section 4.10; 15.05 and that, to the extent lawful, all Notes tendered and not withdrawn shall be accepted for payment;
(2B) the Change of Control Payment Repurchase Price, and the date on which Notes tendered and accepted for payment shall be purchased, which date shall be at least 30 days and no not later than 60 days from the date such notice is mailed (the “Change of Control Repurchase Payment Date”); ;
(3C) that any Note Notes not tendered or accepted for payment shall continue to accrete or accrue interest; interest in accordance with the terms thereof;
(4D) that, unless the Company defaults in making such payment, any Note Notes accepted for payment pursuant to the Change of Control Offer shall cease to accrete or accrue interest on and after the Change of Control Repurchase Payment Date; ;
(5E) that Holders electing to have a Note any Notes purchased pursuant to any Change of Control Offer shall be required to surrender the NoteNotes, with the form entitled “Option of Holder to Elect Purchase” on the reverse of the Note completed, or transfer by book-entry transfer, to the Company, a depositary, if appointed by the Company, or the Paying Agent Trustee at the address specified in the notice at least three days Business Days before the Change of Control Payment Repurchase Date; ;
(6F) that Holders shall be entitled to withdraw their election if the Company, the depositary or the Paying Agent, as the case may be, Trustee receives, not later than three Business Days prior to the Change of Control Payment Date, a notice setting forth the name of the Holder, the principal amount of the Note the Holder delivered for purchase and a statement that such Holder is withdrawing his its election to have such Note purchased; and
(7G) that Notes and portions of Notes purchased shall be in amounts of $1,000 or whole multiples of $1,000, except that if all of the Notes of a Holder are to be purchased, the entire outstanding amount of Notes held by such Holder, even if not a multiple of $1,000, shall be purchased; and (8) that Holders whose Notes were purchased only in part shall be issued new Notes equal in principal amount to the unpurchased portion of the Notes surrendered (or transferred by book-entry transferentry), which unpurchased portion must be equal to $1,000 in principal amount or an integral multiple thereof. The Company shall comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws and regulations are applicable in connection with the repurchase of the Notes as a result of a Change of Control. To the extent that the provisions of any securities laws or regulations conflict with the Change of Control provisions of this Indenture, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under the Change of Control provisions of this Indenture by virtue of such conflict. On the Change of Control Payment Date, the Company shall, to the extent lawful:
(1) accept for payment all Notes or portions thereof properly tendered pursuant to the Change of Control Offer;
(2) deposit with the Paying Agent an amount equal to the Change of Control Payment in respect of all Notes or portions thereof so tendered; and
(3) 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. The Paying Agent shall promptly mail to each Holder of Notes so tendered the Change of Control Payment for such Notes, and the Trustee shall promptly authenticate and mail (or cause to be transferred by book entry) to each Holder a new Note equal in principal amount to any unpurchased portion of the Notes surrendered, if any; provided that each such new Note shall be in a principal amount of $1,000 or an integral multiple thereof. The Company shall publicly announce the results of the Change of Control Offer on or as soon as practicable after the Change of Control Payment Date. The provisions set forth above that require the Company to make a Change of Control Offer following a Change of Control shall be applicable regardless of whether or not any other provisions of this Indenture are applicable. Notwithstanding anything to the contrary in this Section 4.10, 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 requirements set forth in this Section 4.10 and purchases all Notes validly tendered and not withdrawn under such Change of Control Offer.
Appears in 2 contracts
Samples: Indenture (Electra Battery Materials Corp), Indenture (Electra Battery Materials Corp)
Offer to Repurchase Upon a Change of Control. (a) If a Change of Control occurs, unless the Company has exercised its right to redeem given notice of redemption of all the Notes under pursuant to Section 3.07, each Holder of Notes shall will have the right to require that the Company to repurchase purchase all or any part (equal to in amounts of $2,000 or whole multiples of $1,000 or an integral multiple in excess thereof) of that such Holder’s Notes pursuant to a change of control the offer on the terms set forth described below in this Indenture Section 4.17 (a the “Change of Control Offer”). In the Change of Control Offer, the Company shall will offer to purchase all of the Notes, at a payment purchase price (the “Change of Control Purchase Price”) in cash in an amount equal to 101% of the aggregate principal amount of Notes repurchased such Notes, plus accrued and unpaid interest and Liquidated Damagesinterest, if any, thereon, to the date of purchase (the “Change of Control PaymentPurchase Date”), subject to the rights of Holders of record on relevant record dates to receive interest due on the relevant interest payment date. Any Change of Control Offer that is made prior to the occurrence of a Change of Control may at the Company’s discretion be subject to one or more conditions precedent, including the occurrence of a Change of Control.
(b) Within 30 days following after any Change of ControlControl or, at the Company’s option, prior to such Change of Control but after it is publicly announced, unless the Company has given notice of redemption of all the Notes pursuant to Section 3.07, the Company shall mail a notify the Trustee and give written notice of the Change of Control to each Holder, by first-class mail, postage prepaid, at the address appearing for such Holder at its registered addressin the Security Register (or, in the case of Global Notes, if such notice is given by the Trustee on behalf of the Company, sent in accordance with the applicable procedures of the Depositary). The notice (the “Change of Control Purchase Notice”) shall contain state, among other things:
(i) that a Change of Control has occurred or will occur, the date of such event and the circumstances and relevant facts regarding such Change of Control;
(ii) that any Notes (or any portion thereof) accepted for payment and duly paid on the Change of Control Purchase Date pursuant to the Change of Control Offer shall cease to accrue interest on the Change of Control Purchase Date;
(iii) that any Notes (or any portion thereof) not properly tendered will continue to accrue interest;
(iv) the Change of Control Purchase Price and the Change of Control Purchase Date, which shall be fixed by the Company on a Business Day no earlier than 30 days nor later than 60 days from the date the Change of Control Purchase Notice is mailed (or, in the case of Global Notes, sent), or such later date as is necessary to comply with requirements under the Exchange Act; provided that the Change of Control Purchase Date may not occur prior to the Change of Control;
(v) a description of the procedures that Holders are required to follow in order to tender their Notes and the procedures that Holders are required to follow in order to withdraw an election to tender their Notes for payment; and
(vi) all other instructions and materials necessary to enable such Holder Holders to tender Notes pursuant to the Change of Control Offer. Any If any of the Notes subject to a Change of Control Offer is in the form of a Global Note, then the Company shall modify such notice to the extent necessary to accord with the procedures of the Depositary applicable to repurchases.
(c) Upon receipt by the Company of the proper tender of Notes, the Holder of the Note in respect of which such proper tender was made shall (unless the tender of such Note is properly withdrawn at least one Business Day prior to the Change of Control Purchase Date) thereafter be made entitled to all Holdersreceive solely the Change of Control Purchase Price with respect to such Notes. The noticeNotes to be purchased shall, which on the Change of Control Purchase Date, become due and payable at the Change of Control Purchase Price, and from and after such date (unless the Company shall govern default in the terms payment of the Change of Control Offer, Purchase Price) such Notes shall state: (1) that cease to bear interest. Such Change of Control Purchase Price shall be paid to such Holder promptly following the later of the Change of Control Offer is being made pursuant Purchase Date and the time of delivery of such Note to this Section 4.10; (2) the relevant Paying Agent at the office of such Paying Agent by the Holder thereof in the manner required. Upon surrender of any such Note for purchase in accordance with the foregoing provisions, such Note shall be paid by the Company at the Change of Control Payment and the date Purchase Price; provided, however, that installments of interest whose Stated Maturity is on which Notes tendered and accepted for payment shall be purchased, which date shall be at least 30 days and no later than 60 days from the date such notice is mailed (the “Change of Control Payment Date”); (3) that any Note not tendered or accepted for payment shall continue to accrete or accrue interest; (4) that, unless the Company defaults in making such payment, any Note accepted for payment pursuant prior to the Change of Control Offer Purchase Date shall cease be payable to accrete or accrue the Holders of such Notes, registered as such as of the close of business on the relevant record dates according to the terms and the provisions of Section 307 of the Base Indenture. If any Note tendered for purchase in accordance with the provisions of this Section 4.17 shall not be so paid upon surrender thereof, the principal thereof (and premium, if any, thereon) shall, until paid, bear interest after from the Change of Control Payment Date; (5) that Purchase Date at the rate borne by such Note. Holders electing to have a Note Notes purchased pursuant to any Change of Control Offer shall will be required to surrender the Note, with the form entitled “Option of Holder such Notes to Elect Purchase” on the reverse of the Note completed, or transfer by book-entry transfer, to the Company, a depositary, if appointed by the Company, or the Paying Agent at the address specified in the notice at least three days before Change of Control Purchase Notice prior to the close of business on the third Business Day prior to the Change of Control Payment Purchase Date; (6) . Any Note that Holders is to be purchased only in part shall be entitled surrendered to withdraw their election a Paying Agent at the office of such Paying Agent (with, if the Company, the depositary Registrar or the Paying AgentTrustee so require, due endorsement by, or a written instrument of transfer in form satisfactory to the Company and the Registrar or the Trustee, as the case may be, receivesduly executed by, the Holder thereof or such Holder’s 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, one or more new Notes of any authorized denomination as requested by such Holder in an aggregate principal amount equal to, and in exchange for, the portion of the principal amount of the Note so surrendered that is not purchased. For all purposes of this Section 4.17, unless the context otherwise requires, all provisions relating to the purchase of Notes shall relate, in the case of any Notes purchased or to be purchased only in part, to the portion of the principal amount of such Notes which has been or is to be purchased. The Paying Agent (at the Company’s expense) shall promptly mail or deliver to the Holder thereof any Note or portion thereof not to be so purchased.
(d) The Company shall (i) not later than the Change of Control Payment Purchase Date, a notice setting forth the name of the Holder, the principal amount of the Note the Holder delivered for purchase and a statement that such Holder is withdrawing his election to have such Note purchased; (7) that Notes and portions of Notes purchased shall be in amounts of $1,000 or whole multiples of $1,000, except that if all of the Notes of a Holder are to be purchased, the entire outstanding amount of Notes held by such Holder, even if not a multiple of $1,000, shall be purchased; and (8) that Holders whose Notes were purchased only in part shall be issued new Notes equal in principal amount to the unpurchased portion of the Notes surrendered (or transferred by book-entry transfer), which unpurchased portion must be equal to $1,000 in principal amount or an integral multiple thereof. The Company shall comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws and regulations are applicable in connection with the repurchase of the Notes as a result of a Change of Control. To the extent that the provisions of any securities laws or regulations conflict with the Change of Control provisions of this Indenture, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under the Change of Control provisions of this Indenture by virtue of such conflict. On the Change of Control Payment Date, the Company shall, to the extent lawful:
(1) accept for payment all Notes or portions thereof properly tendered pursuant to the Change of Control Offer;
, (2ii) not later than 12:30 p.m. (New York City time) on the Change of Control Purchase Date, deposit with the Trustee or with a Paying Agent an amount equal of money in same day funds sufficient to pay the aggregate Change of Control Purchase Price of all the Notes or portions thereof that are to be purchased on that date and (iii) not later than 12:30 p.m. (New York City time) on the Change of Control Payment in respect of all Notes or portions thereof so tendered; and
(3) Purchase Date, deliver or cause to be delivered to the Trustee the Notes so accepted together with Paying Agent an Officers’ Certificate stating the aggregate principal amount of Notes or portions thereof being purchased accepted for payment by the Company. The Paying Agent shall promptly mail to each Holder of Notes so tendered the Change of Control Payment for such Notes, and the Trustee shall promptly authenticate and mail (or cause to be transferred by book entry) to each Holder a new Note equal in principal amount to any unpurchased portion of the Notes surrendered, if any; provided that each such new Note shall be in a principal amount of $1,000 or an integral multiple thereof. The Company shall publicly announce the results of the Change of Control Offer on or as soon as practicable after the Change of Control Payment Purchase Date. The provisions set forth above that require the Company .
(e) A tender made in response to make a Change of Control Offer following Purchase Notice may be withdrawn if the Company receives, not later than one Business Day prior to the Change of Control Purchase Date, a telegram, telex, facsimile transmission or letter, specifying, as applicable:
(1) the name of the Holder;
(2) the certificate number of the Note in respect of which such notice of withdrawal is being submitted;
(3) the principal amount of the Note (which shall be $2,000 or whole multiples of $1,000 in excess thereof) delivered for purchase by the Holder as to which such notice of withdrawal is being submitted;
(4) a statement that such Holder is withdrawing his election to have such principal amount of such Note purchased; and
(5) the principal amount, if any, of such Note (which shall be $2,000 or whole multiples of $1,000 in excess thereof) that remains subject to the original Change of Control Purchase Notice and that has been or will be delivered for purchase by the Company.
(f) The Company shall comply with the applicable tender offer rules, including the requirements of Rule 14e-1 under the Exchange Act, and any other applicable securities laws or regulations thereunder in connection with a Change of Control shall be applicable regardless of whether or not any other Offer. To the extent that the provisions of this Indenture are applicable. Notwithstanding anything any securities laws or regulations conflict with the provisions relating to the contrary Change of Control Offer in this Section 4.104.17, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under this Section 4.17 by virtue thereof.
(g) Notwithstanding the foregoing provisions of this Section 4.17, the Company will not be required to make a Change of Control Offer under the following circumstances: (1) upon a Change of Control Control, if a third party makes the Change of Control Offer in the manner, at the times and otherwise in compliance with the requirements set forth in this Section 4.10 Supplemental Indenture applicable to a Change of Control Offer made by the Company and purchases all Notes validly tendered and not withdrawn under such Change of Control Offer.; or
Appears in 2 contracts
Samples: Third Supplemental Indenture (Laredo Petroleum, Inc.), Fourth Supplemental Indenture (Laredo Petroleum, Inc.)
Offer to Repurchase Upon a Change of Control. (a) If a Change of Control occurs, unless the Company has exercised its right Triggering Event occurs with respect to redeem the Notes under Section 3.07a series of Notes, each Holder of Notes shall of such series will have the right to require that the Company to repurchase purchase all or any part (equal to in amounts of $1,000 or an integral multiple whole multiples of $1,000 in excess thereof) of that such Holder’s Notes pursuant to a change of control the offer on described below (the terms set forth in this Indenture (a “Change of Control Offer”). In the Change of Control Offer, the Company shall will offer to purchase all of the Notes of such series, at a payment purchase price (the “Change of Control Purchase Price”) in cash in an amount equal to 101% of the aggregate principal amount of Notes repurchased such Notes, plus accrued and unpaid interest and Liquidated Damagesinterest, if any, thereon, to the date of purchase (the “Change of Control PaymentPurchase Date”).
(b) Not later than 30 days after the date upon which any Change of Control Triggering Event occurred with respect to a series of Notes or, at the Company’s option, prior to a Change of Control but after it is publicly announced, the Company must notify the Trustee in writing and give written notice of either such event to each Holder of Notes of such series, at such Holder’s address appearing in the security register or otherwise deliver notice in accordance with the Applicable Procedures (the “Change of Control Purchase Notice”). Within 30 days following any Change of Control, the Company shall mail a notice to each Holder at its registered address. The notice shall contain all instructions and materials necessary to enable such Holder to tender Notes pursuant to the Change of Control Offer. Any Change of Control Offer shall be made to all Holders. The noticePurchase Notice must state, which shall govern the terms of the Change of Control Offer, shall state: among other things:
(1) that the a Change of Control Offer Triggering Event has occurred or is being made pursuant expected to this Section 4.10; occur and the date or expected date of such event;
(2) the circumstances and relevant facts regarding such Change of Control Triggering Event;
(3) the Change of Control Payment Purchase Price and the date on Change of Control Purchase Date, which Notes tendered and accepted for payment shall be purchased, which date shall be at least fixed by the Company on a Business Day no earlier than 30 days and no nor later than 60 days from the date such the notice is mailed (or otherwise delivered, or such later date as is necessary to comply with requirements under the “Exchange Act; provided that the Change of Control Payment Date”); Purchase Date may not occur prior to the Change of Control Triggering Event and such notice may be contingent on the occurrence of the Change of Control Triggering Event;
(34) that any Note not tendered or accepted for payment shall will continue to accrete or accrue interest; ;
(45) that, unless the Company defaults in making such paymentthe payment of the Change of Control Purchase Price, any Note Notes accepted for payment pursuant to the Change of Control Offer shall cease to accrete or accrue interest after the Change of Control Payment Purchase Date; and
(56) other procedures that a Holder of Notes must follow to accept a Change of Control Offer or to withdraw acceptance of the Change of Control Offer.
(c) Upon receipt by the Company of the proper tender of Notes, the Holder of the Note in respect of which such proper tender was made shall (unless the tender of such Note is properly withdrawn at least one Business Day prior to the Change of Control Purchase Date) thereafter be entitled to receive solely the Change of Control Purchase Price with respect to such Notes. On the Change of Control Purchase Date, any such Note surrendered for purchase in accordance with the foregoing provisions and not withdrawn shall be accepted for payment by the Company at the Change of Control Purchase Price; provided, however, that installments of interest whose Stated Maturity is on or prior to the Change of Control Purchase Date shall be payable to the Holders of such Notes, registered as such on the relevant Change of Control Purchase Date (or on the relevant record dates in the case of Definitive Notes) according to the terms and the provisions of Section 2.03. If any Note accepted for payment in accordance with the provisions of this Section 4.09 shall not be paid as provided in Section 4.09(d), the principal thereof (and premium, if any, thereon) shall, until paid, bear interest from the Change of Control Purchase Date at the rate borne by such Note. Holders electing to have a Note Notes purchased pursuant to any Change of Control Offer shall will be required to surrender the Note, with the form entitled “Option of Holder such Notes to Elect Purchase” on the reverse of the Note completed, or transfer by book-entry transfer, to the Company, a depositary, if appointed by the Company, or the Paying Agent at the address specified in the notice Change of Control Purchase Notice at least three days before one Business Day prior to the Change of Control Payment Purchase Date; (6) . Any Note that Holders is to be purchased only in part shall be entitled surrendered to withdraw their election a Paying Agent at the office of such Paying Agent (with, if the Company, the depositary Registrar or the Paying AgentTrustee so require, due endorsement by, or a written instrument of transfer in form satisfactory to the Company and the Registrar or the Trustee, as the case may be, receivesduly executed by, the Holder thereof or such Holder’s 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, one or more new Notes of any authorized denomination as requested by such Holder in an aggregate principal amount equal to, and in exchange for, the portion of the principal amount of the Note so surrendered that is not purchased.
(d) The Company shall (i) not later than the Change of Control Payment Purchase Date, a notice setting forth the name of the Holder, the principal amount of the Note the Holder delivered for purchase and a statement that such Holder is withdrawing his election to have such Note purchased; (7) that Notes and portions of Notes purchased shall be in amounts of $1,000 or whole multiples of $1,000, except that if all of the Notes of a Holder are to be purchased, the entire outstanding amount of Notes held by such Holder, even if not a multiple of $1,000, shall be purchased; and (8) that Holders whose Notes were purchased only in part shall be issued new Notes equal in principal amount to the unpurchased portion of the Notes surrendered (or transferred by book-entry transfer), which unpurchased portion must be equal to $1,000 in principal amount or an integral multiple thereof. The Company shall comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws and regulations are applicable in connection with the repurchase of the Notes as a result of a Change of Control. To the extent that the provisions of any securities laws or regulations conflict with the Change of Control provisions of this Indenture, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under the Change of Control provisions of this Indenture by virtue of such conflict. On the Change of Control Payment Date, the Company shall, to the extent lawful:
(1) accept for payment all Notes or portions thereof properly tendered pursuant to the Change of Control Offer;
Offer and not validly withdrawn, (2ii) not later than 1:00 p.m. (New York time) on the Business Day following the Change of Control Purchase Date, deposit with the Trustee or with a Paying Agent an amount equal of money in same day funds sufficient to pay the aggregate Change of Control Purchase Price of all the Notes or portions thereof which have been so accepted for payment and (iii) not later than 1:00 p.m. (New York time) on the Business Day following the Change of Control Payment in respect of all Notes or portions thereof so tendered; and
(3) Purchase Date, deliver or cause to be delivered to the Trustee the Notes so accepted together with Paying Agent an Officers’ Certificate stating the aggregate principal amount of Notes or portions thereof being purchased accepted for payment by the Company. The Paying Agent shall promptly mail or deliver to each Holder Holders of Notes so tendered accepted payment in an amount equal to the Change of Control Payment for Purchase Price of the Notes purchased from each such NotesHolder, and the Company shall execute and the Trustee shall promptly authenticate and mail (or cause deliver to be transferred by book entry) to each Holder such Holders a new Note equal in principal amount to any unpurchased portion of the Note surrendered. Any Notes surrendered, if any; provided that each such new Note not so accepted shall be in a principal amount of $1,000 promptly mailed or an integral multiple delivered by the Paying Agent at the Company’s expense to the Holder thereof. The Company shall will publicly announce the results of the Change of Control Offer on or as soon as practicable after the Change of Control Payment Purchase Date. The provisions set forth above that require the Company to make a Change of Control Offer following a Change of Control shall be applicable regardless of whether or not any other provisions For purposes of this Indenture are applicable. Notwithstanding anything to the contrary in this Section 4.104.09, the Company shall choose a Paying Agent which 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 requirements set forth in this Section 4.10 and purchases all Notes validly tendered and not withdrawn under such Change of Control OfferCompany.
Appears in 2 contracts
Samples: Indenture (California Resources Corp), Indenture (Occidental Petroleum Corp /De/)
Offer to Repurchase Upon a Change of Control. If (a) Upon the occurrence of a Change of Control occurs, unless the Company has exercised its right to redeem the Notes under Section 3.07Control, each Holder of Notes shall have the right to require the Company to repurchase all or any part (equal to $1,000 or an integral multiple thereof) of that such Holder’s 's Notes pursuant to a change of control the offer on described below (the terms set forth in this Indenture (a “Change of Control Offer”). In the Change of Control Offer, the Company shall "CHANGE OF CONTROL OFFER") at an offer a payment price in cash equal to 101% of the aggregate principal amount of Notes repurchased thereof plus accrued and unpaid interest and Liquidated DamagesDamages thereon, if any, thereon, to the date of purchase (the “Change of Control Payment”"CHANGE OF CONTROL PAYMENT"). Within 30 days following any Change of Control, the Company shall notify the Trustee thereof and mail a notice notice, by first-class mail, postage prepaid, to each Holder at its registered address. The notice shall contain all instructions and materials necessary to enable such Holder to tender Notes pursuant to Holder, describing the transaction or transactions that constitute the Change of Control Offer. Any Change of Control Offer shall be made to all Holders. The notice, which shall govern the terms of the Change of Control Offer, shall state: and stating (1) that the Change of Control Offer is being made pursuant to this Section 4.104.15 and that all Notes tendered will be accepted for payment; (2) the Change of Control Payment purchase price and the date on purchase date, which Notes tendered and accepted for payment shall be purchased, which date shall be at least no earlier than 30 days and no later than 60 days from the date such notice is mailed or such later date as is necessary to comply with the requirements under the Exchange Act (the “Change of Control Payment Date”"CHANGE OF CONTROL PAYMENT DATE"); (3) that any Note not tendered or accepted for payment shall will continue to accrete or accrue interest; (4) that, unless the Company defaults in making such paymentthe payment of the Change of Control Payment, any Note all Notes accepted for payment pursuant to the Change of Control Offer shall cease to accrete or accrue interest after the Change of Control Payment Date; (5) that Holders electing to have a Note any Notes purchased pursuant to any a Change of Control Offer shall will be required to surrender the NoteNotes, with the form entitled “"Option of Holder to Elect Purchase” " on the reverse of the Note Notes completed, or transfer by book-entry transfer, to the Company, a depositary, if appointed by the Company, or the Paying Agent at the address specified in the notice at least three days before prior to the close of business on the third Business Day preceding the Change of Control Payment Date; (6) that Holders shall will be entitled to withdraw their election if the Company, the depositary or the Paying Agent, as the case may be, Agent receives, not later than the close of business on the second Business Day preceding the Change of Control Payment Date, a notice telegram, telex, facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Note the Holder Notes delivered for purchase purchase, and a statement that such Holder is withdrawing his its election to have such Note the Notes purchased; and (7) that Notes and portions of Notes purchased shall be in amounts of $1,000 or whole multiples of $1,000, except that if all of the Notes of a Holder are to be purchased, the entire outstanding amount of Notes held by such Holder, even if not a multiple of $1,000, shall be purchased; and (8) that Holders whose Notes were are being purchased only in part shall will be issued new Notes equal in principal amount to the unpurchased portion of the Notes surrendered (or transferred by book-entry transfer)surrendered, which unpurchased portion must be equal to $1,000 in principal amount or an integral multiple thereof. The Company shall comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws and regulations are applicable in connection with the repurchase of the Notes as a result of a Change of Control. To the extent that the provisions of any securities laws or regulations conflict with the provisions of this Indenture relating to such Change of Control provisions of this IndentureOffer, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under the Change of Control provisions of described in this Indenture by virtue of such conflict. On thereof.
(b) By 2:00 p.m. (noon) Eastern Time on the Change of Control Payment Date, the Company shall, to the extent lawful:
, (1) accept for payment all Notes or portions thereof properly tendered pursuant to the Change of Control Offer;
, (2) deposit with the Paying Agent an amount equal to the Change of Control Payment in respect of all Notes or portions thereof so tendered; and
tendered and (3) 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. The Paying Agent shall promptly mail to each Holder of Notes so tendered the Change of Control Payment for such Notes, and the Trustee shall promptly authenticate and mail (or cause to be transferred by book entry) to each Holder a new Note equal in principal amount to any unpurchased portion of the Notes surrendered, if any; provided that each such new Note shall be in a principal amount of $1,000 or an integral multiple thereof. The Company shall publicly announce the results of the Change of Control Offer on or as soon as practicable after the Change of Control Payment Date. The provisions set forth above that require the Company to make a Change of Control Offer following a Change of Control shall be applicable regardless of whether or not any other provisions of this Indenture are applicable. .
(c) Notwithstanding anything to the contrary in this Section 4.104.15, 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 requirements set forth in this Section 4.10 4.15 and Section 3.09 hereof and all other provisions of this Indenture applicable to a Change of Control Offer made by the Company and purchases all Notes validly tendered and not withdrawn under such Change of Control Offer.
Appears in 2 contracts
Samples: Note Purchase Agreement (Jw Childs Equity Partners Ii Lp), Note Purchase Agreement (Signal Medical Services)
Offer to Repurchase Upon a Change of Control. If a Change of Control occurs, unless the Company has exercised its right to redeem all the Notes under Section 3.073.08, each Holder of Notes shall have the right to require the Company to repurchase all or any part (equal to $€100,000 or integral multiples of €1,000 or an integral multiple in excess thereof) of that Holder’s Notes pursuant to a change of control offer on the terms set forth in this Indenture (a “Change of Control Offer”). In the Change of Control Offer, the Company shall offer a payment in cash equal to 101% of the aggregate principal amount of Notes repurchased plus accrued and unpaid interest and Liquidated Damages, if any, thereon, to the date of purchase (the “Change of Control Payment”). Within 30 days following any Change of Control, the Company shall mail a notice to each Holder at its registered addressaddress describing the transaction or transactions that constitute a Change of Control and offering to repurchase Notes on the date specified in such notice. The notice shall contain all instructions and materials necessary to enable such Holder to tender Notes pursuant to the Change of Control Offer. Any Change of Control Offer shall be made to all Holders. The notice, which shall govern the terms of the Change of Control Offer, shall state: (1) that the Change of Control Offer is being made pursuant to this Section 4.10; (2) the Change of Control Payment and the date on which Notes tendered and accepted for payment shall be purchased, which date shall be at least no earlier than 30 days and no later than 60 days from the date such notice is mailed (the “Change of Control Payment Date”); (3) that any Note not tendered or accepted for payment shall continue to accrete or accrue interest; (4) that, unless the Company defaults in making such payment, any Note accepted for payment pursuant to the Change of Control Offer shall cease to accrete or accrue interest after the Change of Control Payment Date; (5) that Holders electing to have a Note purchased pursuant to any Change of Control Offer shall be required to surrender the Note, with the form entitled “Option of Holder to Elect Purchase” on the reverse of the Note completed, or transfer by book-entry transfer, to the Company, a depositary, if appointed by the Company, or the Paying Agent at the address specified in the notice at least three days before the Change of Control Payment Date; (6) that Holders shall be entitled to withdraw their election if the Company, the depositary or the Paying Agent, as the case may be, receives, not later than the Change of Control Payment Date, a notice setting forth the name of the Holder, the principal amount of the Note the Holder delivered for purchase and a statement that such Holder is withdrawing his election to have such Note purchased; (7) that Notes and portions of Notes purchased shall be in amounts of $€100,000 or an integral multiple of €1,000 or whole multiples of $1,000in excess thereof, except that if all of the Notes of a Holder are to be purchased, the entire outstanding amount of Notes held by such Holder, even if not a €100,000 or an integral multiple of $1,000€1,000 in excess thereof, shall be purchased; and (8) that Holders whose Notes were purchased only in part shall be issued new Notes equal in principal amount to the unpurchased portion of the Notes surrendered (or transferred by book-entry transfer), which unpurchased portion must be equal to $1,000 in principal amount €100,000 or an integral multiple of €1,000 in excess thereof. The Company shall comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws and regulations are applicable in connection with the repurchase of the Notes as a result of a Change of Control. To the extent that the provisions of any securities laws or regulations conflict with the Change of Control provisions of this Indenture, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under the Change of Control provisions of this Indenture by virtue of such conflict. On the Change of Control Payment Date, the Company shall, to the extent lawful:
(1) accept for payment all Notes or portions thereof properly tendered pursuant to the Change of Control Offer;
(2) deposit with the Paying Agent an amount equal to the Change of Control Payment in respect of all Notes or portions thereof so tendered; and
(3) 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. The Paying Agent shall promptly mail (or cause to be delivered) to each Holder of Notes so tendered the Change of Control Payment for such Notes, and the Trustee (or an authentication agent appointed by it) shall promptly authenticate and mail (or cause to be transferred by book entry) to each Holder a new Note equal in principal amount to any unpurchased portion of the Notes surrendered, if any; provided that each such new Note shall be in a principal amount of $1,000 €100,000 or an integral multiple multiples of €1,000, in excess thereof. The Company shall publicly announce the results of the Change of Control Offer on or as soon as practicable after the Change of Control Payment Date. The provisions set forth above that require the Company to make a Change of Control Offer following a Change of Control shall be applicable regardless of whether or not any other provisions of this Indenture are applicable. Notwithstanding anything to the contrary in this Section 4.10, 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 requirements set forth in this Section 4.10 and purchases all Notes validly tendered and not withdrawn under such Change of Control Offer. If at any time of such Change of Control, the Notes are listed on the Official List of the Luxembourg Stock Exchange and admitted for trading on the Euro MTF Market, to the extent required by the Luxembourg Stock Exchange, the Company shall notify the Luxembourg Stock Exchange that a Change of Control has occurred and any relevant details relating to such Change of Control.
Appears in 2 contracts
Samples: Supplemental Indenture (Owens-Illinois Group Inc), Indenture (Owens-Illinois Group Inc)
Offer to Repurchase Upon a Change of Control. If (a) Upon the occurrence of a Change of Control occursControl, unless the Company has exercised its right Issuers have previously or concurrently mailed a redemption notice with respect to redeem all of the outstanding Notes under as provided by Section 3.07, each Holder of Notes shall have the right to require the Company Issuers to repurchase all or any part (equal to $1,000 2,000 or an integral multiple of $1,000 in excess thereof) of that such Holder’s Notes pursuant to the offer described below at a change of control offer on the terms set forth in this Indenture (a “Change of Control Offer”). In the Change of Control Offer, the Company shall offer a payment purchase price in cash equal to 101% of the aggregate principal amount of Notes repurchased thereof, plus accrued and unpaid interest and Liquidated DamagesAdditional Interest, if any, thereon, to the date of purchase (the “Change of Control Payment”). Within 30 days following any Change of Control, the Company The Issuers shall mail a notice to each Holder at its registered address. The notice shall contain all instructions and materials necessary to enable such Holder to tender Notes pursuant to the Change of Control Offer. Any Change of Control Offer shall be made to all Holders. The notice, which shall govern the terms of the Change of Control Offer, shall state: (1) that the Change of Control Offer is being made pursuant to this Section 4.10; (2) the Change of Control Payment and the date on which Notes tendered and accepted for payment shall be purchased, which date shall be at least 30 days and no later than 60 days from the date such notice is mailed (the “Change of Control Payment Date”); (3) that any Note not tendered or accepted for payment shall continue to accrete or accrue interest; (4) that, unless the Company defaults in making such payment, any Note accepted for payment pursuant to the Change of Control Offer shall cease to accrete or accrue interest after the Change of Control Payment Date; (5) that Holders electing to have a Note purchased pursuant to any Change of Control Offer shall be required to surrender the Note, with the form entitled “Option of Holder to Elect Purchase” on the reverse of the Note completed, or transfer by book-entry transfercomply, to the Companyextent applicable, a depositary, if appointed by the Company, or the Paying Agent at the address specified in the notice at least three days before the Change of Control Payment Date; (6) that Holders shall be entitled to withdraw their election if the Company, the depositary or the Paying Agent, as the case may be, receives, not later than the Change of Control Payment Date, a notice setting forth the name of the Holder, the principal amount of the Note the Holder delivered for purchase and a statement that such Holder is withdrawing his election to have such Note purchased; (7) that Notes and portions of Notes purchased shall be in amounts of $1,000 or whole multiples of $1,000, except that if all of the Notes of a Holder are to be purchased, the entire outstanding amount of Notes held by such Holder, even if not a multiple of $1,000, shall be purchased; and (8) that Holders whose Notes were purchased only in part shall be issued new Notes equal in principal amount to the unpurchased portion of the Notes surrendered (or transferred by book-entry transfer), which unpurchased portion must be equal to $1,000 in principal amount or an integral multiple thereof. The Company shall comply with the requirements of Section 14(e) of, and Rule 14e-1 under under, the Exchange Act and any other securities laws and regulations thereunder to the extent such laws and regulations are applicable in connection with the repurchase of the Notes as a result of a Change of Control. To the extent that the provisions of any securities laws or regulations conflict with the Change of Control provisions of this Indenture, the Company Issuers shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under the Change of Control provisions of this Indenture by virtue of its compliance with such conflictsecurities laws or regulations. On Within 30 days following any Change of Control, unless the Issuers have previously or concurrently mailed a redemption notice with respect to all of the outstanding Notes as provided by Section 3.07, the Issuers shall mail a notice to each Holder with a copy to the Trustee (the “Change of Control Offer”) stating:
(i) that a Change of Control has occurred and that such Holder has the right to require the Issuers to purchase such Holder’s Notes at a purchase price in cash equal to 101% of the principal amount thereof on the date of purchase, plus accrued and unpaid interest and Additional Interest, if any, to the date of purchase (subject to the right of Holders of record on the relevant record date to receive interest on the relevant interest payment date);
(ii) the circumstances and relevant facts regarding such Change of Control;
(iii) the purchase date (which shall be no earlier than 30 days nor later than 60 days from the date such notice is mailed) (the “Change of Control Payment Date”);
(iv) that any Notes not tendered shall continue to accrue interest;
(v) that, unless the Issuers default in the payment of the Change of Control Payment, all Notes accepted for payment pursuant to the Change of Control Offer shall cease to accrue interest and Additional Interest, if any, after the Change of Control Payment Date;
(vi) that Holders shall be entitled to withdraw their election if the Paying Agent or Depositary, as applicable, receives, not later than the close of business on the second Business Day preceding the Change of Control Payment Date, a facsimile transmission or letter setting forth the Company name of the Holder, the principal amount of Notes delivered for purchase, and a statement that such Holder is withdrawing his election to have the Notes purchased, subject to the Applicable Procedures;
(vii) that Holders whose Notes are being purchased only in part shall be issued new Notes equal in principal amount to the unpurchased portion of the Notes surrendered, which unpurchased portion must be equal to $2,000 in principal amount or an integral multiple of $1,000 in excess thereof; and
(viii) the instructions, as determined by the Issuers, consistent with this Section 4.11, that a Holder must follow in order to have its Notes purchased.
(b) On a date that is at least 30 but no more than 60 days from the date on which the Issuers mail notice of the Change of Control, the Issuers shall, to the extent lawful:
, (1i) accept for payment all Notes or portions thereof properly tendered pursuant to the Change of Control Offer;
, (2ii) deposit with the Paying Agent an amount equal to the Change of Control Payment in respect of all Notes or portions thereof so tendered; and
tendered and (3iii) 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 CompanyIssuers. The Paying Agent shall promptly mail to each Holder of Notes so tendered the Change of Control Payment for such Notes, and the Trustee shall promptly authenticate and mail (or cause to be transferred by book book-entry) to each Holder a new Note equal in principal amount to any unpurchased portion of the Notes surrendered, if any; provided that each such new Note shall be in a principal amount of $1,000 2,000 or an integral multiple of $1,000 in excess thereof. The Company Issuers shall publicly announce the results of the Change of Control Offer on or as soon as practicable after the Change of Control Payment Date. .
(c) The provisions set forth above that require the Company to make a Change of Control Offer following a Change of Control shall be applicable regardless of whether or not any other provisions of this Indenture are applicable. Notwithstanding anything to the contrary in this Section 4.10, the Company Issuers 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 requirements set forth in this Section 4.10 Indenture applicable to a Change of Control Offer made by the Issuers and such third party purchases all Notes validly tendered and not withdrawn under such Change of Control Offer. A Change of Control Offer may be made in advance of a Change of Control, and conditioned upon such Change of Control, if a definitive agreement is in place for the Change of Control at the time of making the Change of Control Offer.
Appears in 2 contracts
Samples: Indenture (DT Credit Company, LLC), Indenture (DT Acceptance Corp)
Offer to Repurchase Upon a Change of Control. (a) If a Change of Control occurs, unless the Company has exercised its right to redeem the Notes under Section 3.07, each Holder of Notes shall have the right to require that the Company to repurchase Co-Obligors purchase all or any part (equal to in integral multiples of $1,000 or an integral multiple thereof1,000) of that such Holder’s Notes pursuant to a change of control the offer on described below (the terms set forth in this Indenture (a “Change of Control Offer”). In the Change of Control Offer, the Company Co-Obligors shall offer to purchase all of the Notes, at a payment purchase price (the “Change of Control Purchase Price”) in cash in an amount equal to 101% of the aggregate principal amount of Notes repurchased such Notes, plus accrued and unpaid interest and Liquidated Damagesinterest, if any, thereon, to the date the Change of purchase Control Offer closes (the “Change of Control PaymentPurchase Date”) (subject to the rights of holders of record on relevant record dates to receive interest due on an interest payment date). .
(b) Within 30 days following after any Change of ControlControl or, at the Company’s option, prior to such Change of Control but after it is publicly announced, the Company shall mail a must notify the Trustee and give written notice to each Holder at its registered address. The notice shall contain all instructions and materials necessary to enable such Holder to tender Notes pursuant to the Change of Control Offer. Any Change of Control Offer shall be made to all Holders. The notice, which shall govern the terms of the Change of Control Offer(the “Change of Control Purchase Notice”) to each Holder of Notes, shall by first-class mail, postage prepaid, at his address appearing in the security register. The Change of Control Purchase Notice must state: , among other things,
(1) that the a Change of Control Offer is being made pursuant to this Section 4.10; has occurred or will occur and the date of such event;
(2) the Change of Control Payment Purchase Price and the date on Change of Control Purchase Date, which Notes tendered and accepted for payment shall be purchased, fixed by the Company on a Business Day (which date shall may be at least immediately after the Change of Control occurs) no earlier than 30 days and no nor later than 60 days from the date such notice is mailed (the “Change of Control Payment Date”)Purchase Notice is mailed, or such later date as is necessary to comply with requirements under the Exchange Act; provided that the Change of Control Purchase Date may not occur prior to the Change of Control;
(3) that any Note not tendered or accepted for payment shall will continue to accrete or accrue interest; ;
(4) that, unless the Company defaults Co-Obligors default in making such paymentthe payment of the Change of Control Purchase Price, any Note Notes accepted for payment pursuant to the Change of Control Offer shall cease to accrete or accrue interest after the Change of Control Payment Purchase Date; and
(5) other procedures that Holders electing a Holder of Notes must follow to have accept a Note purchased pursuant to any Change of Control Offer shall be required to surrender the Note, with the form entitled “Option of Holder to Elect Purchase” on the reverse of the Note completed, or transfer by book-entry transfer, to the Company, a depositary, if appointed by the Company, or the Paying Agent at the address specified in the notice at least three days before the Change of Control Payment Date; (6) that Holders shall be entitled to withdraw their election if the Company, the depositary or the Paying Agent, as the case may be, receives, not later than the Change acceptance of Control Payment Date, a notice setting forth the name of the Holder, the principal amount of the Note the Holder delivered for purchase and a statement that such Holder is withdrawing his election to have such Note purchased; (7) that Notes and portions of Notes purchased shall be in amounts of $1,000 or whole multiples of $1,000, except that if all of the Notes of a Holder are to be purchased, the entire outstanding amount of Notes held by such Holder, even if not a multiple of $1,000, shall be purchased; and (8) that Holders whose Notes were purchased only in part shall be issued new Notes equal in principal amount to the unpurchased portion of the Notes surrendered (or transferred by book-entry transfer), which unpurchased portion must be equal to $1,000 in principal amount or an integral multiple thereof. The Company shall comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws and regulations are applicable in connection with the repurchase of the Notes as a result of a Change of Control. To the extent that the provisions of any securities laws or regulations conflict with the Change of Control provisions of this Indenture, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under the Change of Control provisions of this Indenture by virtue of such conflict. On the Change of Control Payment Date, the Company shall, to the extent lawful:
(1) accept for payment all Notes or portions thereof properly tendered pursuant to the Change of Control Offer;
(2) deposit with the Paying Agent an amount equal to the Change of Control Payment in respect of all Notes or portions thereof so tendered; and
(3) 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. The Paying Agent shall promptly mail to each Holder of Notes so tendered the Change of Control Payment for such Notes, and the Trustee shall promptly authenticate and mail (or cause to be transferred by book entry) to each Holder a new Note equal in principal amount to any unpurchased portion of the Notes surrendered, if any; provided that each such new Note shall be in a principal amount of $1,000 or an integral multiple thereof. The Company shall publicly announce the results of the Change of Control Offer on or as soon as practicable after the Change of Control Payment Date. The provisions set forth above that require the Company to make a Change of Control Offer following a Change of Control shall be applicable regardless of whether or not any other provisions of this Indenture are applicable. Notwithstanding anything to the contrary in this Section 4.10, 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 requirements set forth in this Section 4.10 and purchases all Notes validly tendered and not withdrawn under such Change of Control Offer.
Appears in 2 contracts
Samples: Indenture (Duane Reade), Indenture (Duane Reade Inc)
Offer to Repurchase Upon a Change of Control. (a) If a Change of Control Triggering Event occurs, unless the Company has exercised its right to redeem the Notes under Section 3.07, each Holder of Notes shall will have the right to require that the Company to repurchase purchase all or any part (equal to in amounts of $1,000 or an integral multiple whole multiples of $1,000 in excess thereof) of that such Holder’s Notes pursuant to a change of control the offer on described below (the terms set forth in this Indenture (a “Change of Control Offer”). In the Change of Control Offer, the Company shall will offer to purchase all of the Notes, at a payment purchase price (the “Change of Control Purchase Price”) in cash in an amount equal to 101% of the aggregate principal amount of Notes repurchased such Notes, plus accrued and unpaid interest and Liquidated Damagesinterest, if any, thereon, to the date of purchase (the “Change of Control PaymentPurchase Date”).
(b) Not later than 30 days after the date upon which any Change of Control Triggering Event occurred, or, at the Company’s option, prior to a Change of Control but after it is publicly announced, the Company must notify the Trustee in writing and give notice of either such event to each Holder of Notes at such Holder’s address appearing in the security register or otherwise deliver notice in accordance with the Applicable Procedures (the “Change of Control Purchase Notice”). Within 30 days following any Change of Control, the Company shall mail a notice to each Holder at its registered address. The notice shall contain all instructions and materials necessary to enable such Holder to tender Notes pursuant to the Change of Control Offer. Any Change of Control Offer shall be made to all Holders. The noticePurchase Notice must state, which shall govern the terms of the Change of Control Offer, shall state: among other things:
(1) that the a Change of Control Offer Triggering Event has occurred or is being made pursuant expected to this Section 4.10; occur and the date or expected date of such event;
(2) the circumstances and relevant facts regarding such Change of Control Triggering Event;
(3) the Change of Control Payment Purchase Price and the date on Change of Control Purchase Date, which Notes tendered and accepted for payment shall be purchased, which date shall be at least fixed by the Company on a Business Day no earlier than 30 days and no nor later than 60 days from the date such the notice is mailed (or otherwise delivered, or such later date as is necessary to comply with requirements under the “Exchange Act; provided that the Change of Control Payment Date”); Purchase Date may not occur prior to the Change of Control Triggering Event and such notice may be contingent on the occurrence of the Change of Control Triggering Event;
(34) that any Note not tendered or accepted for payment shall will continue to accrete or accrue interest; ;
(45) that, unless the Company defaults in making such paymentthe payment of the Change of Control Purchase Price, any Note Notes accepted for payment pursuant to the Change of Control Offer shall cease to accrete or accrue interest after the Change of Control Payment Purchase Date; and
(56) other procedures that Holders electing a Holder of Notes must follow to have accept a Note purchased pursuant to any Change of Control Offer shall be required to surrender the Note, with the form entitled “Option of Holder to Elect Purchase” on the reverse of the Note completed, or transfer by book-entry transfer, to the Company, a depositary, if appointed by the Company, or the Paying Agent at the address specified in the notice at least three days before the Change of Control Payment Date; (6) that Holders shall be entitled to withdraw their election if the Company, the depositary or the Paying Agent, as the case may be, receives, not later than the Change acceptance of Control Payment Date, a notice setting forth the name of the Holder, the principal amount of the Note the Holder delivered for purchase and a statement that such Holder is withdrawing his election to have such Note purchased; (7) that Notes and portions of Notes purchased shall be in amounts of $1,000 or whole multiples of $1,000, except that if all of the Notes of a Holder are to be purchased, the entire outstanding amount of Notes held by such Holder, even if not a multiple of $1,000, shall be purchased; and (8) that Holders whose Notes were purchased only in part shall be issued new Notes equal in principal amount to the unpurchased portion of the Notes surrendered (or transferred by book-entry transfer), which unpurchased portion must be equal to $1,000 in principal amount or an integral multiple thereof. The Company shall comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws and regulations are applicable in connection with the repurchase of the Notes as a result of a Change of Control. To the extent that the provisions of any securities laws or regulations conflict with the Change of Control provisions of this Indenture, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under the Change of Control provisions of this Indenture by virtue of such conflict. On the Change of Control Payment Date, the Company shall, to the extent lawful:
(1) accept for payment all Notes or portions thereof properly tendered pursuant to the Change of Control Offer;
(2) deposit with the Paying Agent an amount equal to the Change of Control Payment in respect of all Notes or portions thereof so tendered; and
(3) 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. The Paying Agent shall promptly mail to each Holder of Notes so tendered the Change of Control Payment for such Notes, and the Trustee shall promptly authenticate and mail (or cause to be transferred by book entry) to each Holder a new Note equal in principal amount to any unpurchased portion of the Notes surrendered, if any; provided that each such new Note shall be in a principal amount of $1,000 or an integral multiple thereof. The Company shall publicly announce the results of the Change of Control Offer on or as soon as practicable after the Change of Control Payment Date. The provisions set forth above that require the Company to make a Change of Control Offer following a Change of Control shall be applicable regardless of whether or not any other provisions of this Indenture are applicable. Notwithstanding anything to the contrary in this Section 4.10, 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 requirements set forth in this Section 4.10 and purchases all Notes validly tendered and not withdrawn under such Change of Control Offer.
Appears in 2 contracts
Samples: Indenture (Range Resources Corp), Indenture (Range Resources Corp)
Offer to Repurchase Upon a Change of Control. (a) If a Change of Control occurs, unless the Company has exercised its right to redeem the Notes under Section 3.07, each Holder of Notes shall will have the right to require that the Company to repurchase purchase all or any part (equal to in amounts of $2,000 or whole multiples of $1,000 or an integral multiple in excess thereof) of that such Holder’s Notes pursuant to a change of control the offer on described below (the terms set forth in this Indenture (a “Change of Control Offer”). In the Change of Control Offer, the Company shall will offer to purchase all of the Notes, at a payment purchase price (the “Change of Control Purchase Price”) in cash in an amount equal to 101% of the aggregate principal amount of Notes repurchased such Notes, plus accrued and unpaid interest and Liquidated Damagesinterest, if any, thereon, to the date of purchase (the “Change of Control PaymentPurchase Date”)) subject to the rights of Holders of record on relevant record dates to receive interest due on an interest payment date. Any Change of Control Offer that is made prior to the occurrence of a Change of Control may at the Company’s discretion be subject to one or more conditions precedent, including the occurrence of a Change of Control.
(b) Within 30 days following after any Change of ControlControl or, at the Company’s option, prior to such Change of Control but after it is publicly announced, the Company shall mail a notify the Trustee and give written notice of the Change of Control to each Holder Holder, by first-class mail, postage prepaid, at its registered addresshis address appearing in the Security Register or otherwise in accordance with the procedures of DTC. The notice (the “Change of Control Purchase Notice)” shall contain state, among other things:
(i) that a Change of Control has occurred or will occur, the date of such event and the circumstances and relevant facts regarding such Change of Control;
(ii) that any Notes (or any portion thereof) accepted for payment (and duly paid on the Change of Control Purchase Date) pursuant to the Change of Control Offer shall cease to accrue interest on the Change of Control Purchase Date;
(iii) that any Notes (or any portion thereof) not properly tendered will continue to accrue interest;
(iv) the Change of Control Purchase Price and the Change of Control Purchase Date, which shall be, subject to any contrary requirements of applicable law, no less than 30 days nor more than 60 days after the date the notice is mailed; provided that the Change of Control Purchase Date may not occur prior to the Change of Control;
(v) a description of the procedures that Holders of Notes are required to follow in order to tender their Notes and the procedures that Holders of Notes are required to follow in order to withdraw an election to tender their Notes for payment; and
(vi) all other instructions and materials necessary to enable such Holder Holders to tender Notes pursuant to the Change of Control Offer. Any If any of the Notes subject to a Change of Control Offer is in the form of a Global Note, then the Company shall modify such notice to the extent necessary to accord with the procedures of the Depositary applicable to repurchases.
(c) Upon receipt by the Company of the proper tender of Notes, the Holder of the Note in respect of which such proper tender was made shall (unless the tender of such Note is properly withdrawn at least one Business Day prior to the Change of Control Purchase Date) thereafter be made entitled to all Holdersreceive solely the Change of Control Purchase Price with respect to such Notes. The noticeNotes to be purchased shall, which on the Change of Control Purchase Date, become due and payable at the Change of Control Purchase Price, and from and after such date (unless the Company shall govern default in the terms payment of the Change of Control Offer, Purchase Price) such Notes shall state: (1) that cease to bear interest. Such Change of Control Purchase Price shall be paid to such Holder promptly following the later of the Change of Control Offer is being made pursuant Purchase Date and the time of delivery of such Note to this Section 4.10; (2) the relevant Paying Agent at the office of such Paying Agent by the Holder thereof in the manner required. Upon surrender of any such Note for purchase in accordance with the foregoing provisions, such Note shall be paid by the Company at the Change of Control Payment and the date Purchase Price; provided, however, that installments of interest whose Stated Maturity is on which Notes tendered and accepted for payment shall be purchased, which date shall be at least 30 days and no later than 60 days from the date such notice is mailed (the “Change of Control Payment Date”); (3) that any Note not tendered or accepted for payment shall continue to accrete or accrue interest; (4) that, unless the Company defaults in making such payment, any Note accepted for payment pursuant prior to the Change of Control Offer Purchase Date shall cease be payable to accrete or accrue the Holders of such Notes, registered as such as of the close of business on the relevant record dates according to the terms and the provisions of Section 2.03. If any Note tendered for purchase in accordance with the provisions of this Section 4.17 shall not be so paid upon surrender thereof, the principal thereof (and premium, if any, thereon) shall, until paid, bear interest after from the Change of Control Payment Date; (5) that Purchase Date at the rate borne by such Note. Holders electing to have a Note Notes purchased pursuant to any Change of Control Offer shall will be required to surrender the Note, with the form entitled “Option of Holder such Notes to Elect Purchase” on the reverse of the Note completed, or transfer by book-entry transfer, to the Company, a depositary, if appointed by the Company, or the Paying Agent at the address specified in the notice at least three days before Change of Control Purchase Notice prior to the close of business on the third Business Day prior to the Change of Control Payment Purchase Date; (6) . Any Note that Holders is to be purchased only in part shall be entitled surrendered to withdraw their election a Paying Agent at the office of such Paying Agent (with, if the Company, the depositary Registrar or the Paying AgentTrustee so require, due endorsement by, or a written instrument of transfer in form satisfactory to the Company and the Registrar or the Trustee, as the case may be, receivesduly executed by, the Holder thereof or such Holder’s 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, one or more new Notes of any authorized denomination as requested by such Holder in an aggregate principal amount equal to, and in exchange for, the portion of the principal amount of the Note so surrendered that is not purchased. For all purposes of this Section 4.17, unless the context otherwise requires, all provisions relating to the purchase of Notes shall relate, in the case of any Notes purchased or to be purchased only in part, to the portion of the principal amount of such Notes which has been or is to be purchased. The Paying Agent (at the Company’s expense) shall promptly mail or deliver to the Holder thereof any Note or portion thereof not to be so purchased.
(d) The Company shall (i) not later than the Change of Control Payment Purchase Date, a notice setting forth the name of the Holder, the principal amount of the Note the Holder delivered for purchase and a statement that such Holder is withdrawing his election to have such Note purchased; (7) that Notes and portions of Notes purchased shall be in amounts of $1,000 or whole multiples of $1,000, except that if all of the Notes of a Holder are to be purchased, the entire outstanding amount of Notes held by such Holder, even if not a multiple of $1,000, shall be purchased; and (8) that Holders whose Notes were purchased only in part shall be issued new Notes equal in principal amount to the unpurchased portion of the Notes surrendered (or transferred by book-entry transfer), which unpurchased portion must be equal to $1,000 in principal amount or an integral multiple thereof. The Company shall comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws and regulations are applicable in connection with the repurchase of the Notes as a result of a Change of Control. To the extent that the provisions of any securities laws or regulations conflict with the Change of Control provisions of this Indenture, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under the Change of Control provisions of this Indenture by virtue of such conflict. On the Change of Control Payment Date, the Company shall, to the extent lawful:
(1) accept for payment all Notes or portions thereof properly tendered pursuant to the Change of Control Offer;
, (2ii) not later than 12:30 p.m. (New York City time) on the Change of Control Purchase Date, deposit with the Trustee or with a Paying Agent an amount equal of money in same day funds sufficient to pay the aggregate Change of Control Purchase Price of all the Notes or portions thereof that are to be purchased on that date and (iii) not later than 12:30 p.m. (New York City time) on the Change of Control Payment in respect of all Notes or portions thereof so tendered; and
(3) Purchase Date, deliver or cause to be delivered to the Trustee the Notes so accepted together with Paying Agent an Officers’ Certificate stating the aggregate principal amount of Notes or portions thereof being purchased accepted for payment by the Company. The Paying Agent shall promptly mail to each Holder of Notes so tendered the Change of Control Payment for such Notes, and the Trustee shall promptly authenticate and mail (or cause to be transferred by book entry) to each Holder a new Note equal in principal amount to any unpurchased portion of the Notes surrendered, if any; provided that each such new Note shall be in a principal amount of $1,000 or an integral multiple thereof. The Company shall publicly announce the results of the Change of Control Offer on or as soon as practicable after the Change of Control Payment Purchase Date. The provisions set forth above that require the Company .
(e) A tender made in response to make a Change of Control Offer following a Purchase Notice may be withdrawn if the Company receives, not later than one Business Day prior to the Change of Control Purchase Date, a telegram, telex, facsimile transmission or letter, specifying, as applicable:
(1) the name of the Holder;
(2) the certificate number of the Note in respect of which such notice of withdrawal is being submitted;
(3) the principal amount of the Note (which shall be applicable regardless $2,000 or whole multiples of whether $1,000 in excess thereof) delivered for purchase by the Holder as to which such notice of withdrawal is being submitted;
(4) a statement that such Holder is withdrawing his election to have such principal amount of such Note purchased; and
(5) the principal amount, if any, of such Note (which shall be $2,000 or not whole multiples of $1,000 in excess thereof) that remains subject to the original Change of Control Purchase Notice and that has been or will be delivered for purchase by the Company.
(f) The Company shall comply, to the extent applicable, with the requirements of Rule 14e-l under the Exchange Act, and any other securities laws or regulations thereunder to the extent such laws and regulations are applicable in connection with the purchase of the Notes as described above. To the extent that the provisions of this Indenture are applicable. Notwithstanding anything any securities laws or regulations conflict with the provisions relating to the contrary in this Section 4.10Change of Control Offer, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under this Section 4.17 by virtue thereof.
(g) Notwithstanding the foregoing, the Company will not be required to make a Change of Control Offer (1) upon a Change of Control Control, if the Parent Guarantor or a third party makes the Change of Control Offer in the manner, at the times and otherwise in compliance with the requirements set forth in this Section 4.10 Indenture applicable to a Change of Control Offer made by the Company and purchases all Notes validly tendered and not withdrawn under such Change of Control OfferOffer or (2) if notice of redemption for 100% of the aggregate principal amount of the outstanding Notes has been given pursuant to this Indenture as described in Section 3.07, unless and until there is a default in payment of the applicable redemption price.
(h) In the event that upon consummation of a Change of Control Offer less than 10% of the aggregate principal amount of the Notes (including Additional Notes) that were originally issued are hold by Holders other than the Company or Affiliates thereof, the Company will have the right, upon not less than 30 nor more than 60 days’ prior notice, given not more than 30 days following the purchase pursuant to the Change of Control Offer described above, to redeem all of the Notes that remain outstanding following such purchase at a redemption price equal to 101% of the aggregate principal amount of the Notes redeemed plus accrued and unpaid interest, if any, thereon to the date of redemption, subject to the right of the Holders of record on relevant record dates to receive interest due on an interest payment date.
Appears in 2 contracts
Samples: Indenture (Laredo Petroleum Holdings, Inc.), Indenture (Laredo Petroleum, Inc.)
Offer to Repurchase Upon a Change of Control. (a) If a Change of Control occurs, unless the Company has previously or concurrently exercised its right to redeem all of the Notes under pursuant to Section 3.074.07, each Holder of Notes shall will have the right to require the Company to repurchase all or any part (equal to $1,000 2,000 or an integral multiple thereofof $1,000 in excess of $2,000) of that such Holder’s Notes pursuant to at a change of control offer on the terms set forth in this Indenture (a “Change of Control Offer”). In the Change of Control Offer, the Company shall offer a payment purchase price in cash equal to 101% of the aggregate principal amount of the Notes repurchased plus accrued and unpaid interest and Liquidated Damagesinterest, if any, thereon, to the date of purchase (subject to the right of Holders of record on the relevant record date to receive interest due on the relevant Interest Payment Date).
(b) Within 30 days following any Change of Control, unless the Company has previously or concurrently exercised its right to redeem all of the Notes pursuant to Section 4.07, the Company shall mail a notice (the “Change of Control Offer”) to each Holder, with a copy to the Trustee, stating, among other things:
(1) that a Change of Control has occurred and that such Holder has the right to require us to purchase such Holder’s Notes at a purchase price in cash equal to 101% of the principal amount of such Notes plus accrued and unpaid interest, if any, to the date of purchase (subject to the right of Holders of record on a record date to receive interest on the relevant Interest Payment Date) (the “Change of Control Payment”). Within 30 days following any Change of Control, the Company shall mail a notice to each Holder at its registered address. The notice shall contain all instructions and materials necessary to enable such Holder to tender Notes pursuant to the Change of Control Offer. Any Change of Control Offer shall be made to all Holders. The notice, which shall govern the terms of the Change of Control Offer, shall state: (1) that the Change of Control Offer is being made pursuant to this Section 4.10; ;
(2) the Change of Control Payment and the repurchase date on (which Notes tendered and accepted for payment shall be purchased, which date shall be at least no earlier than 30 days and no nor later than 60 days from the date such notice is mailed mailed) (the “Change of Control Payment Date”); ;
(3) that any Note not properly tendered or accepted for payment shall will remain outstanding and continue to accrete or accrue interest; ;
(4) that, that unless the Company defaults in making such paymentthe payment of the Change of Control Payment, any Note all Notes accepted for payment pursuant to the Change of Control Offer shall will cease to accrete or accrue interest after on the Change of Control Payment Date; ;
(5) that Holders electing to have a Note any Notes in certificated form purchased pursuant to any a Change of Control Offer shall will be required to surrender the Notesuch Notes, with the form entitled “Option of Holder to Elect Purchase” on the reverse of the Note such Notes completed, or transfer by book-entry transfer, to the Company, a depositary, if appointed by paying agent specified in the Company, or the Paying Agent notice at the address specified in the notice at least three days before prior to the close of business on the third Business Day preceding the Change of Control Payment Date; ;
(6) that Holders shall will be entitled to withdraw their tendered Notes and their election if to require the CompanyCompany to purchase such Notes, provided, that the depositary or the Paying Agent, as the case may be, paying agent receives, not later than the close of business on the third Business Day preceding the Change of Control Payment Date, a notice setting forth telegram, telex, facsimile transmission or letter complying with the name requirements of the Holder, the principal amount of the Note the Holder delivered for purchase and a statement that such Holder is withdrawing his election to have such Note purchased; Section 5.15(f) below;
(7) that Notes and portions of Notes purchased shall be in amounts of $1,000 or whole multiples of $1,000, except that if all the Company is repurchasing a portion of the Notes Note of a Holder are to be purchasedany Holder, the entire outstanding amount of Notes held by such Holder, even if not a multiple of $1,000, shall be purchased; and (8) that Holders whose Notes were purchased only in part shall Holder will be issued a new Notes Note equal in principal amount to the unpurchased portion of the Notes surrendered (or transferred by book-entry transfer)Note surrendered, which provided, that the unpurchased portion of the Note must be equal to a minimum principal amount of $2,000 and an integral multiple of $1,000 in principal amount or an integral multiple thereof. The Company shall comply excess of $2,000; and
(8) other procedures determined by the Company, consistent with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws and regulations are applicable in connection with the repurchase of the Notes as a result of a Change of Control. To the extent that the provisions of any securities laws or regulations conflict with the Change of Control provisions of this Indenture, the Company shall comply with the applicable securities laws and regulations and shall not be deemed that a Holder must follow to have breached its obligations under the Change of Control provisions of this Indenture by virtue of such conflict. Notes repurchased.
(c) On the Change of Control Payment Date, the Company shallwill, to the extent lawful:
(1) accept for payment all Notes or portions thereof of Notes (in a minimum principal amount of $2,000 and integral multiples of $1,000 in excess of $2,000) properly tendered pursuant to the Change of Control OfferOffer and not properly withdrawn;
(2) deposit with the Paying Agent paying agent an amount equal to the Change of Control Payment in respect of all Notes or portions thereof so tenderedof Notes accepted for payment, provided, however, that the funds once deposited are to be uninvested until disbursed pursuant to this Section 5.15; and
(3) 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 of Notes being purchased by the Company. .
(d) The Paying Agent shall paying agent will promptly mail or deliver to each Holder of Notes so tendered accepted for payment the Change of Control Payment for such Notes, and the Trustee shall will promptly authenticate and mail (or cause to be transferred by book entry) to each Holder a new Note equal in principal amount to any unpurchased portion of the Notes surrendered, if any; provided provided, that each such new Note shall will be in a minimum principal amount of $1,000 2,000 or an integral multiple thereof. The Company shall publicly announce the results of $1,000 in excess of $2,000.
(e) If the Change of Control Offer Payment Date is on or as soon as practicable after an interest record date and on or before the related Interest Payment Date, any accrued and unpaid interest, will be paid to the Person in whose name a Note is registered at the close of business on such record date, and no further interest will be payable to Holders who tender their Notes pursuant to the Change of Control Offer.
(f) A tender made in response to a Change of Control Offer may be withdrawn if the Company receives, not later than the third Business Day prior to the Change of Control Payment Date. The provisions set forth above that require , a telegram, telex, facsimile transmission or letter, specifying, as applicable: (1) the name of the Holder; (2) the certificate number of the Note in respect of which such notice of withdrawal is being submitted; (3) the principal amount of the Note (which shall be $2,000 or whole multiples of $1,000 in excess thereof) delivered for purchase by the Company as to make which such notice of withdrawal is being submitted; (4) a statement that such Holder is withdrawing such Holder’s election to have such principal amount of such Note purchased; and (5) the principal amount, if any, of such Note (which shall be $2,000 or whole multiples of $1,000 in excess thereof) that remains subject to the original Change of Control Offer and that has been or will be delivered for purchase by the Company.
(g) The Trustee and the Paying Agent shall return to the Company, upon its request, any cash that remains unclaimed for two years after a Change of Control Offer Payment Date together with interest or dividends, if any, thereon (subject to Section 8.01(f)), held by them for the payment of the Change of Control Payment; and the Holder of such tendered and accepted Note shall thereafter look only to the Company for payment thereof, and all liability of the Trustee or such Paying Agent with respect to such cash, and all liability of the Company as trustee thereof, shall thereupon cease; provided, however, that the Trustee or such Paying Agent, before being required to make any such repayment, shall at the expense of the Company comply with the SEC Regulation 17AD-17 as it applies to lost bondholders; provided, further however, that (x) to the extent that the aggregate amount of cash deposited by the Company pursuant to Section 5.15(c)(2) exceeds the aggregate Change of Control Payment of the Notes or portions thereof to be purchased, then the Trustee shall hold such excess for the Company and (y) unless otherwise directed by the Company in writing, promptly after the Business Day following the Change of Control Payment Date the Trustee shall return any such excess to the Company together with interest, if any, thereon (subject to Section 8.01(f)).
(h) The Company shall comply, to the extent applicable, with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws or regulations in connection with a Change of Control shall be applicable regardless of whether or not any other Offer. To the extent that the provisions of this Indenture are applicable. Notwithstanding anything to the contrary in any securities laws or regulations conflict with this Section 4.105.15, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under this Section 5.15 by virtue of such conflict.
(i) Notwithstanding the foregoing, the Company shall not be required to make a Change of Control Offer (i) 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 requirements set forth in this Section 4.10 Indenture applicable to a Change of Control Offer made by the Company and purchases all Notes validly tendered and not withdrawn under such Change of Control Offer or (ii) if notice of redemption for 100% of the aggregate principal amount of the outstanding Notes has been given pursuant to Section 4.07, unless and until there is a default in payment of the applicable redemption price.
(j) If Holders of not less than 90% of the aggregate principal amount of the outstanding Notes validly tender their Notes and do not withdraw such Notes in a Change of Control Offer and the Company, or any third party making a Change of Control Offer in lieu of the Company pursuant to Section 5.15(i) above, purchases all of the Notes validly tendered and not withdrawn by such Holders, the Company will have the right, upon not less than 30 nor more than 60 days’ prior notice, given not more than 30 days following the purchase pursuant to the Change of Control Offer described under this Section 5.15, to redeem all of the Notes that remain outstanding following such purchase at a redemption price in cash equal to the applicable Change of Control Payment plus, to the extent not included in the Change of Control Payment, accrued and unpaid interest, if any, to the date of redemption.
(k) A Change of Control Offer may be made in advance of a Change of Control, and conditioned upon the occurrence of a Change of Control, if a definitive agreement is in place for the Change of Control at the time of making of the Change of Control Offer.
Appears in 2 contracts
Samples: Third Supplemental Indenture (SM Energy Co), First Supplemental Indenture (SM Energy Co)
Offer to Repurchase Upon a Change of Control. (a) If a Change of Control occurs, unless the Company has exercised its right to redeem the Notes under Section 3.07, each Holder of Notes shall will have the right to require the Company Issuer to repurchase all or any part (equal to $1,000 or an integral multiple thereof) of that Holder’s Notes (equal to $2,000 or an integral multiple of $1 in excess thereof) pursuant to a change of control offer on the terms set forth in this Indenture Section 4.15 (a “Change of Control Offer”). In the Change of Control Offer, the Company shall Issuer will offer the Holders a payment purchase price in cash equal to 101100% of the aggregate principal amount of Notes repurchased repurchased, plus accrued and unpaid interest and Liquidated Damagesinterest, if any, thereon, on the Notes repurchased to the date of purchase purchase, subject to the rights of Holders on the relevant record date to receive interest due on the relevant interest payment date (the “Change of Control Payment”). Within 30 fifteen (15) days following any Change of Control, the Company shall Issuer will mail a notice to each Holder at its registered address. The notice shall contain all instructions and materials necessary (with a copy to enable such Holder to tender Notes pursuant to the Trustee) describing the transaction or transactions that constitute the Change of Control Offer. Any Change of Control Offer shall be made to all Holders. The notice, which shall govern the terms of the Change of Control Offer, shall state: and stating:
(1) that the Change of Control Offer is being made pursuant to this Section 4.10; 4.15 and that all Notes tendered will be accepted for payment;
(2) the Change of Control Payment purchase price and the date on purchase date, which Notes tendered and accepted for payment shall be purchased, which date shall be at least 30 no earlier than thirty (30) days and no later than 60 sixty (60) days from the date such notice is mailed (the “Change of Control Payment Date”); ;
(3) that any Note not tendered or accepted for payment shall will continue to accrete or accrue interest; ;
(4) that, unless the Company Issuer defaults in making such paymentthe payment of the Change of Control Payment, any Note Notes accepted for payment pursuant to the Change of Control Offer shall will cease to accrete or accrue interest after the Change of Control Payment Date; ;
(5) that Holders electing to have a Note any Notes purchased pursuant to any a Change of Control Offer shall will be required to surrender the NoteNotes, with the form entitled “Option of Holder to Elect Purchase” on attached to the reverse of the Note Notes completed, or transfer a beneficial interest in the Notes by book-entry transfer, to the Company, a depositary, if appointed by the Company, or the Paying Agent at the address specified in the notice at least three days before prior to the close of business on the third Business Day preceding the Change of Control Payment Date; ;
(6) that Holders shall will be entitled to withdraw their election if the Company, the depositary or the Paying Agent, as the case may be, Agent receives, not later than the close of business on the second Business Day preceding the Change of Control Payment Date, a notice telegram, telex, facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Note the Holder Notes delivered for purchase purchase, the serial number for Notes held in definitive form and a statement that such Holder is withdrawing his election to have such Note the Notes purchased; and
(7) that Notes and portions of Notes purchased shall be in amounts of $1,000 or whole multiples of $1,000, except that if all of the Notes of a Holder are to be purchased, the entire outstanding amount of Notes held by such Holder, even if not a multiple of $1,000, shall be purchased; and (8) that Holders whose Notes were are being purchased only in part shall will be issued new Notes equal in principal amount to the unpurchased portion of the Notes surrendered (or transferred by book-entry transfer)surrendered, which unpurchased portion must be equal to $1,000 2,000 in principal amount or an integral multiple of $1 in excess thereof. The Company shall Issuer will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such those laws and regulations are applicable in connection with the repurchase of the Notes as a result of a Change of in Control. To the extent that the provisions of any securities laws or regulations conflict with the Change of Control provisions of this IndentureSection 4.15, the Company shall Issuer will comply with the applicable securities laws and regulations and shall will not be deemed to have breached its obligations under the Change of Control provisions of this Indenture Section 4.15 by virtue of such conflict. compliance.
(b) On the Change of Control Payment Date, the Company shallIssuer will, to the extent lawful:
(1) accept for payment all Notes or portions thereof properly of Notes validly tendered (and not validly withdrawn) pursuant to the Change of Control Offer;
(2) deposit with the Paying Agent an amount equal to the Change of Control Payment in respect of all Notes or portions thereof so tenderedof Notes validly tendered (and not validly withdrawn); and
(3) deliver or cause to be delivered to the Trustee the Notes so properly accepted together with an Officers’ Certificate of the Issuer stating the aggregate principal amount of Notes or portions thereof of Notes being purchased by the Company. Issuer.
(c) The Paying Agent shall will promptly mail to each Holder of Notes so validly tendered (and not validly withdrawn) the Change of Control Payment for such Notes, and the Trustee shall will promptly authenticate and mail (or cause to be transferred by book entry) to each Holder a new Note equal in principal amount to any unpurchased portion of the Notes surrendered, if any; provided that each such new Note shall be in a principal amount of $1,000 or an integral multiple thereof. The Company shall Issuer will publicly announce the results of the Change of Control Offer on or as soon as practicable after the Change of Control Payment Date. .
(d) The provisions set forth above that require the Company to make a Change of Control Offer following a Change of Control shall be applicable regardless of whether or not any other provisions of this Indenture are applicable. Notwithstanding anything to the contrary in this Section 4.10, the Company shall Issuer will not be required to make a Change of Control Offer upon a Change of Control if (1) a third party makes the Change of Control Offer in the manner, at the times and otherwise in compliance with the requirements set forth in this Section 4.10 4.15 and purchases all Notes validly tendered (and not withdrawn validly withdrawn) under such the Change of Control Offer, or (2) notice of redemption has been given pursuant to Section 3.01 hereof, unless and until there is a default in payment of the applicable redemption price. Notwithstanding anything to the contrary contained herein, a Change of Control Offer may be made in advance of a Change of Control, conditioned upon the consummation of such Change of Control, if a definitive agreement is in place for the Change of Control at the time the Change of Control Offer is made.”
Appears in 2 contracts
Samples: Supplemental Indenture and Amendment to Collateral Agreement (Primus Telecommunications Group Inc), Note Exchange and Consent Agreement (Primus Telecommunications Group Inc)
Offer to Repurchase Upon a Change of Control. (a) If a Change of Control occurs, unless the Company has exercised its right to redeem the Notes under Section 3.07, each Holder of Notes shall will have the right to require that the Company to repurchase purchase all or any part (equal to in amounts of $1,000 or an integral multiple whole multiples of $1,000 in excess thereof) of that such Holder’s Notes pursuant to a change of control the offer on described below (the terms set forth in this Indenture (a “Change of Control Offer”). In the Change of Control Offer, the Company shall will offer to purchase all of the Notes, at a payment purchase price (the “Change of Control Purchase Price”) in cash in an amount equal to 101% of the aggregate principal amount of Notes repurchased such Notes, plus accrued and unpaid interest and Liquidated Damagesinterest, if any, thereon, to the date of purchase (the “Change of Control PaymentPurchase Date”). , subject to the rights of Holders of record on relevant record dates to receive interest due on an Interest Payment Date.
(b) Within 30 days following after any Change of ControlControl or, at the Company’s option, prior to such Change of Control but after it is publicly announced, the Company shall mail a must notify the Trustee in writing and give written notice to each Holder at its registered address. The notice shall contain all instructions and materials necessary to enable such Holder to tender Notes pursuant to the Change of Control Offer. Any Change of Control Offer shall be made to all Holders. The notice, which shall govern the terms of the Change of Control Offer(the “Change of Control Purchase Notice”) to each Holder of Notes, shall by first-class mail, postage prepaid, at his address appearing in the security register. The Change of Control Purchase Notice must state: , among other things,
(1) that the a Change of Control Offer is being made pursuant to this Section 4.10; has occurred or will occur and the date of such event;
(2) the circumstances and relevant facts regarding such Change of Control;
(3) the Change of Control Payment Purchase Price and the date on Change of Control Purchase Date, which Notes tendered and accepted for payment shall be purchased, which date shall be at least fixed by the Company on a Business Day no earlier than 30 days and no nor later than 60 days from the date such the notice is mailed (mailed, or such later date as is necessary to comply with requirements under the “Exchange Act; provided that the Change of Control Payment Date”); Purchase Date may not occur prior to the Change of Control;
(34) that any Note not tendered or accepted for payment shall will continue to accrete or accrue interest; ;
(45) that, unless the Company defaults in making such paymentthe payment of the Change of Control Purchase Price, any Note Notes accepted for payment pursuant to the Change of Control Offer shall cease to accrete or accrue interest after the Change of Control Payment Purchase Date; and
(56) other procedures that a Holder of Notes must follow to accept a Change of Control Offer or to withdraw acceptance of the Change of Control Offer.
(c) Upon receipt by the Company of the proper tender of Notes, the Holder of the Note in respect of which such proper tender was made shall (unless the tender of such Note is properly withdrawn at least one Business Day prior to the Change of Control Purchase Date) thereafter be entitled to receive solely the Change of Control Purchase Price with respect to such Notes. Upon surrender of any such Note for purchase in accordance with the foregoing provisions, such Note shall be paid by the Company at the Change of Control Purchase Price; provided, however, that installments of interest whose Stated Maturity is on or prior to the Change of Control Purchase Date shall be payable to the Holders of such Notes, registered as such on the relevant record dates according to the terms and the provisions of Section 2.03. If any Note tendered for purchase in accordance with the provisions of this Section 4.19 shall not be so paid upon surrender thereof, the principal thereof (and premium, if any, thereon) shall, until paid, bear interest from the Change of Control Purchase Date at the rate borne by such Note. Holders electing to have a Note Notes purchased pursuant to any Change of Control Offer shall will be required to surrender the Note, with the form entitled “Option of Holder such Notes to Elect Purchase” on the reverse of the Note completed, or transfer by book-entry transfer, to the Company, a depositary, if appointed by the Company, or the Paying Agent at the address specified in the notice Change of Control Purchase Notice at least three days before one Business Day prior to the Change of Control Payment Purchase Date; (6) . Any Note that Holders is to be purchased only in part shall be entitled surrendered to withdraw their election a Paying Agent at the office of such Paying Agent (with, if the Company, the depositary Registrar or the Paying AgentTrustee so require, due endorsement by, or a written instrument of transfer in form satisfactory to the Company and the Registrar or the Trustee, as the case may be, receivesduly executed by, the Holder thereof or such Holder’s 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, one or more new Notes of any authorized denomination as requested by such Holder in an aggregate principal amount equal to, and in exchange for, the portion of the principal amount of the Note so surrendered that is not purchased.
(d) The Company shall (i) not later than the Change of Control Payment Purchase Date, accept for payment Notes or portions thereof tendered pursuant to the Change of Control Offer, (ii) not later than 1:00 p.m. (New York time) on the Business Day following the Change of Control Purchase Date, deposit with the Trustee or with a Paying Agent an amount of money in same day funds sufficient to pay the aggregate Change of Control Purchase Price of all the Notes or portions thereof which have been so accepted for payment and (iii) not later than 1:00 p.m. (New York time) on the Business Day following the Change of Control Purchase Date, deliver to the Paying Agent an Officers’ Certificate stating the Notes or portions thereof accepted for payment by the Company. The Paying Agent shall promptly mail or deliver to Holders of Notes so accepted payment in an amount equal to the Change of Control Purchase Price of the Notes purchased from each such Holder, and the Company shall execute and the Trustee shall promptly authenticate and mail or deliver to such Holders a new Note equal in principal amount to any unpurchased portion of the Note surrendered. Any Notes not so accepted shall be promptly mailed or delivered by the Paying Agent at the Company’s expense to the Holder thereof. The Company will publicly announce the results of the Change of Control Offer on the Change of Control Purchase Date. For purposes of this Section 4.19, the Company shall choose a Paying Agent which shall not be the Company.
(e) A tender made in response to a Change of Control Purchase Notice may be withdrawn if the Company receives, not later than one Business Day prior to the Change of Control Purchase Date, a notice setting forth telegram, telex, facsimile transmission or letter, specifying, as applicable:
(1) the name of the Holder, ;
(2) the certificate number of the Note in respect of which such notice of withdrawal is being submitted;
(3) the principal amount of the Note the Holder (which shall be $1,000 or whole multiples of $1,000 in excess thereof) delivered for purchase and by the Company as to which such notice of withdrawal is being submitted;
(4) a statement that such Holder is withdrawing his election to have such principal amount of such Note purchased; and
(75) that Notes and portions the principal amount, if any, of Notes purchased such Note (which shall be in amounts of $1,000 or whole multiples of $1,0001,000 in excess thereof) that remains subject to the original Change of Control Purchase Notice and that has been or will be delivered for purchase by the Company.
(f) The Trustee and the Paying Agent shall return to the Company, except upon its request, any cash that remains unclaimed for two years after a Change of Control Purchase Date together with interest or dividends, if any, thereon (subject to Section 7.01(f)), held by them for the payment of the Change of Control Purchase Price; and the Holder of such tendered and accepted Note shall thereafter look only to the Company for payment thereof, and all liability of the Trustee or such Paying Agent with respect to such cash, and all liability of the Company as trustee thereof, shall thereupon cease; provided, however, that the Trustee or such Paying Agent, before being required to make any such repayment, shall at the expense of the Company cause to be published once in The New York Times and The Wall Street Journal (national edition) or send to each Holder entitled to such money notice that such money remains unclaimed and that, after a date specified therein, which shall not be less than 30 days from the date of such notification or publication, any unclaimed balance of such money then remaining shall be repaid to the Company; provided, further however, that (x) to the extent that the aggregate amount of cash deposited by the Company pursuant to clause (ii) of paragraph (d) of this Section 4.19 exceeds the aggregate Change of Control Purchase Price of the Notes of a Holder are or portions thereof to be purchased, then the entire outstanding amount of Notes held by Trustee shall hold such Holder, even if not a multiple of $1,000, shall be purchased; excess for the Company and (8) that Holders whose Notes were purchased only y) unless otherwise directed by the Company in part writing, promptly after the Business Day following the Change of Control Purchase Date the Trustee shall be issued new Notes equal in principal amount return any such excess to the unpurchased portion of the Notes surrendered Company together with interest, if any, thereon (or transferred by book-entry transfersubject to Section 7.01(f), which unpurchased portion must be equal to $1,000 in principal amount or an integral multiple thereof. ).
(g) The Company shall comply with the requirements of applicable tender offer rules, including Rule 14e-1 under the Exchange Act Act, and any other applicable securities laws and or regulations thereunder to the extent such laws and regulations are applicable in connection with the repurchase of the Notes as a result of a Change of ControlControl Offer. To the extent that the provisions of any securities laws or regulations conflict with the Change of Control provisions of this IndentureSection 4.19, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under the Change of Control provisions of this Indenture Section 4.19 by virtue of such conflict. On the Change of Control Payment Date, the Company shall, to the extent lawful:.
(1h) accept for payment all Notes or portions thereof properly tendered pursuant to Notwithstanding the Change of Control Offer;
(2) deposit with the Paying Agent an amount equal to the Change of Control Payment in respect of all Notes or portions thereof so tendered; and
(3) 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. The Paying Agent shall promptly mail to each Holder of Notes so tendered the Change of Control Payment for such Notes, and the Trustee shall promptly authenticate and mail (or cause to be transferred by book entry) to each Holder a new Note equal in principal amount to any unpurchased portion of the Notes surrendered, if any; provided that each such new Note shall be in a principal amount of $1,000 or an integral multiple thereof. The Company shall publicly announce the results of the Change of Control Offer on or as soon as practicable after the Change of Control Payment Date. The provisions set forth above that require the Company to make a Change of Control Offer following a Change of Control shall be applicable regardless of whether or not any other provisions of this Indenture are applicable. Notwithstanding anything to the contrary in this Section 4.10foregoing, the Company shall not be required to make a Change of Control Offer (i) 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 requirements set forth in this Section 4.10 Indenture applicable to a Change of Control Offer made by the Company and purchases all Notes validly tendered and not withdrawn under such Change of Control OfferOffer or (ii) if notice of redemption for 100% of the aggregate principal amount of the outstanding Notes has been given pursuant to Section 3.07, unless and until there is a default in payment of the applicable redemption price.
(i) In the event that Holders of not less than 90% of the aggregate principal amount of the outstanding Notes accept a Change of Control Offer and the Company purchases all of the Notes held by such Holders, the Company will have the right, upon not less than 30 nor more than 60 days’ prior notice, given not more than 30 days following the purchase pursuant to the Change of Control Offer described under this Section 4.19, to redeem all of the Notes that remain outstanding following such purchase at a redemption price equal to 101% of the aggregate principal amount of Notes redeemed plus accrued and unpaid interest, if any, thereon to the date of redemption, subject to the right of the Holders of record on relevant record dates to receive interest due on an Interest Payment Date.
Appears in 2 contracts
Samples: Indenture (Continental Resources, Inc), Indenture (Continental Resources Inc)
Offer to Repurchase Upon a Change of Control. (a) If a Change of Control occurs, unless the Company has exercised its right to redeem the Notes under Section 3.07, each Holder of Notes shall have the right to require that the Company to repurchase purchase all or any part (equal to in amounts of $1,000 or an integral multiple whole multiples of $1,000 in excess thereof) of that such Holder’s Notes pursuant to a change of control the offer on described below (the terms set forth in this Indenture (a “Change of Control Offer”). In the Change of Control Offer, the Company shall offer to purchase all of the Notes, at a payment purchase price (the “Change of Control Purchase Price”) in cash in an amount equal to 101% of the aggregate principal amount of Notes repurchased such Notes, plus accrued and unpaid interest and Liquidated Damagesinterest, if any, thereon, to the date of purchase (the “Change of Control PaymentPurchase Date”) (subject to the rights of holders of record on relevant record dates to receive interest due on an interest payment date). .
(b) Within 30 days following after any Change of ControlControl or, at the Company’s option, prior to such Change of Control but after it is publicly announced, the Company shall mail a must notify the Trustee and give written notice to each Holder at its registered address. The notice shall contain all instructions and materials necessary to enable such Holder to tender Notes pursuant to the Change of Control Offer. Any Change of Control Offer shall be made to all Holders. The notice, which shall govern the terms of the Change of Control Offer, shall state: (1) that the “Change of Control Offer is being made pursuant Purchase Notice”) to this Section 4.10; each Holder of Notes, by first-class mail, postage prepaid, at his address appearing in the security register. The Change of Control Purchase Notice must state, among other things:
(2i) that a Change of Control has occurred or will occur and the date of such event;
(ii) the circumstances and relevant facts regarding such Change of Control;
(iii) the Change of Control Payment Purchase Price and the date on Change of Control Purchase Date, which Notes tendered and accepted for payment shall be purchased, which date shall be at least fixed by the Company on a Business Day no earlier than 30 days and no nor later than 60 days from the date such the notice is mailed (mailed, or such later date as is necessary to comply with requirements under the “Exchange Act; provided that the Change of Control Payment Date”); Purchase Date may not occur prior to the Change of Control;
(3iv) that any Note not tendered or accepted for payment shall will continue to accrete or accrue interest; ;
(4v) that, unless the Company defaults in making such paymentthe payment of the Change of Control Purchase Price, any Note Notes accepted for payment pursuant to the Change of Control Offer shall cease to accrete or accrue interest after the Change of Control Payment Purchase Date; and
(5vi) other procedures that a Holder of Notes must follow to accept a Change of Control Offer or to withdraw acceptance of the Change of Control Offer. Any Change of Control Offer that is made prior to the occurrence of a Change of Control may at the Company’s discretion be subject to one or more conditions precedent, including but not limited to the occurrence of a Change of Control.
(c) Upon receipt by the Company of the proper tender of Notes, the Holder of the Note in respect of which such proper tender was made shall (unless the tender of such Note is properly withdrawn at least one Business Day prior to the Change of Control Purchase Date) thereafter be entitled to receive solely the Change of Control Purchase Price with respect to such Notes. Upon surrender of any such Note for purchase in accordance with the foregoing provisions, such Note shall be paid by the Company at the Change of Control Purchase Price; provided that installments of interest whose Stated Maturity is on or prior to the Change of Control Purchase Date shall be payable to the Holders of such Notes, registered as such on the relevant Regular Record Dates according to the terms and the provisions of Section 2.03. If any Note tendered for purchase in accordance with the provisions of this Section 4.19 shall not be so paid upon surrender thereof, the principal thereof (and premium, if any, thereon) shall, until paid, bear interest from the Change of Control Purchase Date at the rate borne by such Note. Holders electing to have a Note Notes purchased pursuant to any Change of Control Offer shall will be required to surrender the Note, with the form entitled “Option of Holder such Notes to Elect Purchase” on the reverse of the Note completed, or transfer by book-entry transfer, to the Company, a depositary, if appointed by the Company, or the Paying Agent at the address specified in the notice Change of Control Purchase Notice at least three days before one Business Day prior to the Change of Control Payment Purchase Date; (6) . Any Note that Holders is to be purchased only in part shall be entitled surrendered to withdraw their election a Paying Agent at the office of such Paying Agent (with, if the Company, the depositary Registrar or the Paying AgentTrustee so require, due endorsement by, or a written instrument of transfer in form satisfactory to the Company and the Registrar or the Trustee, as the case may be, receivesduly executed by, the Holder thereof or such Holder’s 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, one or more new Notes of any authorized denomination as requested by such Holder in an aggregate principal amount equal to, and in exchange for, the portion of the principal amount of the Note so surrendered that is not purchased.
(d) The Company shall (i) not later than the Change of Control Payment Purchase Date, accept for payment Notes or portions thereof tendered pursuant to the Change of Control Offer, (ii) not later than 10:00 a.m. (New York time) on the Business Day following the Change of Control Purchase Date, deposit with the Trustee or with a Paying Agent an amount of money in same day funds sufficient to pay the aggregate Change of Control Purchase Price of all the Notes or portions thereof which have been so accepted for payment and (iii) not later than 10:00 a.m. (New York time) on the Business Day following the Change of Control Purchase Date, deliver to the Paying Agent an Officers’ Certificate stating the Notes or portions thereof accepted for payment by the Company. The Paying Agent shall promptly mail or deliver to Holders of Notes so accepted payment in an amount equal to the Change of Control Purchase Price of the Notes purchased from each such Holder, and the Company shall execute and the Trustee shall promptly authenticate and mail or deliver to such Holders a new Note equal in principal amount to any unpurchased portion of the Note surrendered. Any Notes not so accepted shall be promptly mailed or delivered by the Paying Agent at the Company’s expense to the Holder thereof. The Company will publicly announce the results of the Change of Control Offer on the Change of Control Purchase Date. For purposes of this Section 4.19, the Company shall choose a Paying Agent which shall not be the Company.
(e) A tender made in response to a Change of Control Purchase Notice may be withdrawn if the Company receives, not later than one Business Day prior to the Change of Control Purchase Date, a notice setting forth telegram, telex, facsimile transmission or letter, specifying, as applicable:
(i) the name of the Holder, ;
(ii) the certificate number of the Note in respect of which such notice of withdrawal is being submitted;
(iii) the principal amount of the Note the Holder (which shall be $1,000 or whole multiples of $1,000 in excess thereof) delivered for purchase and by the Holder as to which such notice of withdrawal is being submitted;
(iv) a statement that such Holder is withdrawing his election to have such principal amount of such Note purchased; and
(7v) that Notes and portions the principal amount, if any, of Notes purchased such Note (which shall be in amounts of $1,000 or whole multiples of $1,0001,000 in excess thereof) that remains subject to the original Change of Control Purchase Notice and that has been or will be delivered for purchase by the Company.
(f) Subject to applicable escheat laws, except the Trustee and the Paying Agent shall return to the Company any cash that remains unclaimed, together with interest or dividends, if all any, thereon (subject to Section 7.01(f) hereof), held by them for the payment of the Change of Control Purchase Price; provided that (i) to the extent that the aggregate amount of cash deposited by the Company pursuant to clause (ii) of paragraph (d) above exceeds the aggregate Change of Control Purchase Price of the Notes of a Holder are or portions thereof to be purchased, then the entire outstanding amount of Notes held by Trustee shall hold such Holder, even if not a multiple of $1,000, shall be purchased; excess for the Company and (8) that Holders whose Notes were purchased only ii) unless otherwise directed by the Company in part writing, promptly after the Business Day following the Change of Control Purchase Date the Trustee shall be issued new Notes equal in principal amount return any such excess to the unpurchased portion of the Notes surrendered Company together with interest, if any, thereon (or transferred by book-entry transfersubject to Section 7.01(f) hereof), which unpurchased portion must be equal to $1,000 in principal amount or an integral multiple thereof. .
(g) The Company shall comply with the requirements of applicable tender offer rules, including Rule 14e-1 under the Exchange Act Act, and any other applicable securities laws and or regulations thereunder to the extent such laws and regulations are applicable in connection with the repurchase of the Notes as a result of a Change of ControlControl Offer. To the extent that the provisions of any securities laws or regulations conflict with the Change of Control provisions of this IndentureSection 4.19, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under the Change of Control provisions of this Indenture Section 4.19 by virtue of such conflict. On the Change of Control Payment Date, the Company shall, to the extent lawful:.
(1h) accept for payment all Notes or portions thereof properly tendered pursuant to Notwithstanding the Change of Control Offer;
(2) deposit with the Paying Agent an amount equal to the Change of Control Payment in respect of all Notes or portions thereof so tendered; and
(3) 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. The Paying Agent shall promptly mail to each Holder of Notes so tendered the Change of Control Payment for such Notes, and the Trustee shall promptly authenticate and mail (or cause to be transferred by book entry) to each Holder a new Note equal in principal amount to any unpurchased portion of the Notes surrendered, if any; provided that each such new Note shall be in a principal amount of $1,000 or an integral multiple thereof. The Company shall publicly announce the results of the Change of Control Offer on or as soon as practicable after the Change of Control Payment Date. The provisions set forth above that require the Company to make a Change of Control Offer following a Change of Control shall be applicable regardless of whether or not any other provisions of this Indenture are applicable. Notwithstanding anything to the contrary in this Section 4.10foregoing, the Company shall not be required to make a Change of Control Offer (i) 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 requirements set forth in this Section 4.10 Indenture applicable to a Change of Control Offer made by the Company and purchases all Notes validly tendered and not withdrawn under such Change of Control OfferOffer or (ii) if notice of redemption for 100% of the aggregate principal amount of the outstanding Notes has been given pursuant to Section 3.07 hereof, unless and until there is a default in payment of the applicable redemption price.
(i) If holders of not less than 90% of the aggregate principal amount of the outstanding Notes accept a Change of Control Offer and the Company purchases all of the Notes held by such holders, the Company will have the right, upon not less than 30 nor more than 60 days’ prior notice, given not more than 30 days following the purchase pursuant to the Change of Control Offer described above, to redeem all of the Notes that remain outstanding following such purchase at a redemption price equal to 101% of the aggregate principal amount of the Notes redeemed plus accrued and unpaid interest, if any, thereon to the date of redemption, subject to the right of the holders of record on relevant record dates to receive interest due on an interest payment date.
Appears in 2 contracts
Samples: Indenture (Brigham Exploration Co), Indenture (Brigham Exploration Co)
Offer to Repurchase Upon a Change of Control. If (i) Upon the occurrence of a Change of Control occurs, unless the Company has exercised its right to redeem the Notes under Section 3.07Control, each Holder of Notes shall have the right to require the Company to repurchase all or any part (equal to $1,000 or an integral multiple thereof) of that such Holder’s 's Notes pursuant to a change of control the offer on described below (the terms set forth in this Indenture (a “"Change of Control Offer”). In ") at an offer price (the "Change of Control Offer, the Company shall offer a payment Payment") in cash equal to 101% of the aggregate principal amount of Notes repurchased thereof plus accrued and unpaid interest and Liquidated Damagesthereon, if any, thereon, to the date of purchase (the “"Change of Control Payment”Payment Date"). Within 30 days following any Change of Control, the Company shall mail a notice notice, by first-class mail, postage prepaid, to each Holder at its registered address. The notice shall contain all instructions and materials necessary to enable such Holder to tender Notes pursuant to Holder, describing the transaction or transactions that constitute the Change of Control Offer. Any Change of Control Offer shall be made to all Holders. The notice, which shall govern the terms of the Change of Control Offer, shall state: and stating (1) that the Change of Control Offer is being made pursuant to this Section 4.105(o) and that all Notes tendered will be accepted for payment; (2) the Change of Control Payment purchase price and the date on purchase date, which Notes tendered and accepted for payment shall be purchased, which date shall be at least no earlier than 30 days and no later than 60 days from the date such notice is mailed or such later date as is necessary to comply with the requirements under the Exchange Act (the “"Change of Control Payment Date”"); (3) that any Note not tendered or accepted for payment shall will continue to accrete or accrue interest; (4) that, unless the Company defaults in making such paymentthe payment of the Change of Control Payment, any Note all Notes accepted for payment pursuant to the Change of Control Offer shall cease to accrete or accrue interest after the Change of Control Payment Date; (5) that Holders electing to have a Note any Notes purchased pursuant to any a Change of Control Offer shall will be required to surrender the NoteNotes, with the form entitled “"Option of Holder to Elect Purchase” " on the reverse of the Note Notes completed, or transfer by book-entry transfer, to the Company, a depositary, if appointed by the Company, or the Paying Agent at the address specified in the notice at least three days before prior to the close of business on the third Business Day preceding the Change of Control Payment Date; (6) that Holders shall will be entitled to withdraw their election if the Company, the depositary or the Paying Agent, as the case may be, Agent receives, not later than the close of business on the second Business Day preceding the Change of Control Payment Date, a notice telegram, telex, facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Note the Holder Notes delivered for purchase purchase, and a statement that such Holder is withdrawing his its election to have such Note the Notes purchased; and (7) that Notes and portions of Notes purchased shall be in amounts of $1,000 or whole multiples of $1,000, except that if all of the Notes of a Holder are to be purchased, the entire outstanding amount of Notes held by such Holder, even if not a multiple of $1,000, shall be purchased; and (8) that Holders whose Notes were are being purchased only in part shall will be issued new Notes equal in principal amount to the unpurchased portion of the Notes surrendered (or transferred by book-entry transfer)surrendered, which unpurchased portion must be equal to $1,000 in principal amount or an integral multiple thereof. The Company shall comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws and regulations are applicable in connection with the repurchase of the Notes as a result of a Change of Control. To the extent that the provisions of any securities laws or regulations conflict with the provisions of this Agreement relating to such Change of Control provisions of this IndentureOffer, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under the Change of Control provisions of described in this Indenture Agreement by virtue of such conflict. On thereof.
(ii) By 2:00 p.m. (noon) Eastern Time on the Change of Control Payment Date, the Company shall, to the extent lawful:
, (1) accept for payment all Notes or portions thereof properly tendered pursuant to the Change of Control Offer;
, (2) deposit with the Paying Agent an amount equal to the Change of Control Payment in respect of all Notes or portions thereof so tendered; and
tendered and (3) deliver or cause to be delivered to the Trustee Holders the Notes so accepted together with an Officers’ ' Certificate stating the aggregate principal amount of Notes or portions thereof being purchased by the Company. The Paying Agent shall promptly mail to each Holder of Notes so tendered the Change of Control Payment for such Notes, and the Trustee Company shall promptly authenticate execute and mail (or cause to be transferred by book entry) to each Holder a new Note equal in principal amount to any unpurchased portion of the Notes surrendered, if any; provided that each such new Note shall be in a principal amount of $1,000 or an integral multiple thereof. The Company shall publicly announce the results of the Change of Control Offer on or as soon as practicable after the Change of Control Payment Date. The provisions set forth above that require the Company to make a Change of Control Offer following a Change of Control shall be applicable regardless of whether or not any other provisions of this Indenture are applicable. .
(iii) Notwithstanding anything to the contrary in this Section 4.105(o), 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 requirements set forth in this Section 4.10 5(o) and Section 4(i) hereof and all other provisions of this Agreement applicable to a Change of Control Offer made by the Company and purchases all Notes validly tendered and not withdrawn under such Change of Control Offer.
Appears in 2 contracts
Samples: Note Purchase Agreement (Jw Childs Equity Partners Ii Lp), Note Purchase Agreement (Signal Medical Services)
Offer to Repurchase Upon a Change of Control. (a) If a Change of Control occurs, unless the Company has previously or concurrently exercised its right to redeem all of the Notes under pursuant to Section 3.07, each Holder of Notes shall will have the right to require the Company to repurchase all or any part (equal to $1,000 2,000 or an integral multiple thereofof $1,000 in excess of $2,000 or $1.00 or an integral multiple thereof following any PIK Payment) of that such Holder’s Notes pursuant to at a change of control offer on the terms set forth in this Indenture (a “Change of Control Offer”). In the Change of Control Offer, the Company shall offer a payment purchase price in cash equal to 101% of the aggregate principal amount of the Notes repurchased plus accrued and unpaid interest and Liquidated Damagesinterest, if any, thereon, to the date of purchase (subject to the right of Holders of record on the relevant record date to receive interest due on the relevant Interest Payment Date).
(b) Within 30 days following any Change of Control, unless the Company has previously or concurrently exercised its right to redeem all of the Notes pursuant to Section 3.07, the Company shall deliver a notice (the “Change of Control Offer”) to each Holder, with a copy to the Trustee, stating, among other things:
(1) that a Change of Control has occurred and that such Holder has the right to require the Company to purchase such Holder’s Notes at a purchase price in cash equal to 101% of the principal amount of such Notes plus accrued and unpaid interest, if any, to the date of purchase (subject to the right of Holders of record on a record date to receive interest on the relevant Interest Payment Date) (the “Change of Control Payment”). Within 30 days following any Change of Control, the Company shall mail a notice to each Holder at its registered address. The notice shall contain all instructions and materials necessary to enable such Holder to tender Notes pursuant to the Change of Control Offer. Any Change of Control Offer shall be made to all Holders. The notice, which shall govern the terms of the Change of Control Offer, shall state: (1) that the Change of Control Offer is being made pursuant to this Section 4.10; ;
(2) the Change of Control Payment and the repurchase date on (which Notes tendered and accepted for payment shall be purchased, which date shall be at least no earlier than 30 days and no nor later than 60 days from the date such notice is mailed mailed) (the “Change of Control Payment Date”); ;
(3) that any Note not properly tendered or accepted for payment shall will remain outstanding and continue to accrete or accrue interest; ;
(4) that, that unless the Company defaults in making such paymentthe payment of the Change of Control Payment, any Note all Notes accepted for payment pursuant to the Change of Control Offer shall will cease to accrete or accrue interest after on the Change of Control Payment Date; ;
(5) that Holders electing to have a Note any Notes in certificated form purchased pursuant to any a Change of Control Offer shall will be required to surrender the Notesuch Notes, with the form entitled “Option of Holder to Elect Purchase” on the reverse of the Note such Notes completed, or transfer by book-entry transfer, to the Company, a depositary, if appointed by paying agent specified in the Company, or the Paying Agent notice at the address specified in the notice at least three days before prior to the close of business on the third Business Day preceding the Change of Control Payment Date; ;
(6) that Holders shall will be entitled to withdraw their tendered Notes and their election if to require the CompanyCompany to purchase such Notes, provided, however that the depositary or the Paying Agent, as the case may be, paying agent receives, not later than the close of business on the third Business Day preceding the Change of Control Payment Date, a notice setting forth telegram, telex, facsimile transmission or letter complying with the name requirements of the Holder, the principal amount of the Note the Holder delivered for purchase and a statement that such Holder is withdrawing his election to have such Note purchased; Section 7.30(f) below;
(7) that Notes and portions of Notes purchased shall be in amounts of $1,000 or whole multiples of $1,000, except that if all the Company is repurchasing a portion of the Notes Note of a Holder are to be purchasedany Holder, the entire outstanding amount of Notes held by such Holder, even if not a multiple of $1,000, shall be purchased; and (8) that Holders whose Notes were purchased only in part shall Holder will be issued a new Notes Note equal in principal amount to the unpurchased portion of the Notes surrendered (or transferred by book-entry transfer)Note surrendered, which provided, however that the unpurchased portion of the Note must be equal to a minimum principal amount of $2,000 and an integral multiple of $1,000 in principal amount excess of $2,000 (or $1.00 or an integral multiple thereof. The Company shall comply thereof following any PIK Payment); and
(8) other procedures determined by the Company, consistent with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws and regulations are applicable in connection with the repurchase of the Notes as a result of a Change of Control. To the extent that the provisions of any securities laws or regulations conflict with the Change of Control provisions of this Indenture, the Company shall comply with the applicable securities laws and regulations and shall not be deemed that a Holder must follow in order to have breached its obligations under the Change of Control provisions of this Indenture by virtue of such conflict. Notes repurchased.
(c) On the Change of Control Payment Date, the Company shallwill, to the extent lawful:
(1) accept for payment all Notes or portions of Notes (in a minimum principal amount of $2,000 and integral multiples of $1,000 in excess of $2,000 or $1.00 or an integral multiple thereof following any PIK Payment) properly tendered pursuant to the Change of Control OfferOffer and not properly withdrawn;
(2) deposit with the Paying Agent paying agent an amount in United States dollars equal to the Change of Control Payment in respect of all Notes or portions thereof so tenderedof Notes accepted for payment, provided, however, that the funds once deposited are to be uninvested until disbursed pursuant to this Section 7.30; and
(3) 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 of Notes being purchased by the Company. .
(d) The Paying Agent shall paying agent will promptly mail or deliver to each Holder of Notes so tendered accepted for payment the Change of Control Payment for such Notes, and the Trustee shall will promptly authenticate and mail (or cause to be transferred by book entry) to each Holder a new Note equal in principal amount to any unpurchased portion of the Notes surrendered, if any; provided provided, however that each such new Note shall will be in a minimum principal amount of $1,000 2,000 or an integral multiple thereof. The Company shall publicly announce the results of $1,000 in excess of $2,000 (or $1.00 or an integral multiple thereof following any PIK Payment).
(e) If the Change of Control Offer Payment Date is on or as soon as practicable after an interest record date and on or before the related Interest Payment Date, any accrued and unpaid interest, will be paid to the Person in whose name a Note is registered at the close of business on such record date, and no further interest will be payable to Holders who tender pursuant to the Change of Control Offer.
(f) A tender made in response to a Change of Control Payment Notice may be withdrawn if the Company receives, not later than the third Business Day prior to the Change of Control Payment Date. The provisions set forth above that require , a telegram, telex, electronic mail, facsimile transmission or letter, specifying, as applicable: (1) the name of the Holder; (2) the certificate number of the Note in respect of which such notice of withdrawal is being submitted; (3) the principal amount of the Note (which shall be $2,000 or whole multiples of $1,000 in excess thereof or $1.00 or an integral multiple thereof following any PIK Payment) delivered for purchase by the Company as to make which such notice of withdrawal is being submitted; (4) a statement that such Holder is withdrawing his election to have such principal amount of such Note purchased; and (5) the principal amount, if any, of such Note (which shall be $2,000 or whole multiples of $1,000 in excess thereof or $1.00 or an integral multiple thereof following any PIK Payment) that remains subject to the original Change of Control Payment Notice and that has been or will be delivered for purchase by the Company.
(g) Subject to applicable unclaimed property laws, the Trustee and the Paying Agent shall return to the Company, upon its request, any cash that remains unclaimed for two years after a Change of Control Offer Payment Date together with interest or dividends, if any, thereon (subject to Section 10.01(f)), held by them for the payment of the Change of Control Payment; and the Holder of such tendered and accepted Note shall thereafter look only to the Company for payment thereof, and all liability of the Trustee or such Paying Agent with respect to such cash, and all liability of the Company as trustee thereof, shall thereupon cease; provided, however, that the Trustee or such Paying Agent, before being required to make any such repayment, shall at the expense of the Company comply with the Commission Regulation 17AD-17 as it applies to lost bondholders; provided, further that (x) to the extent that the aggregate amount of cash deposited by the Company pursuant to clause (2) of paragraph (c) of this Section 7.30 exceeds the aggregate Change of Control Payment of the Notes or portions thereof to be purchased, then the Trustee shall hold such excess for the Company and (y) unless otherwise directed by the Company in writing, promptly after the Business Day following the Change of Control Payment Date the Trustee shall return any such excess to the Company together with interest, if any, thereon (subject to Section 10.01(f)).
(h) The Company shall comply, to the extent applicable, with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws or regulations in connection with the repurchase of Notes as a result of a Change of Control shall be applicable regardless of whether or not any other Control. To the extent that the provisions of this Indenture are applicable. Notwithstanding anything to the contrary in any securities laws or regulations conflict with this Section 4.107.30, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under this Section 7.30 by virtue of such conflict.
(i) Notwithstanding the foregoing, 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 requirements set forth in this Section 4.10 Indenture applicable to a Change of Control Offer made by the Company and purchases all Notes validly tendered and not withdrawn under such Change of Control Offer.
(j) In the event that Holders of not less than 90% of the aggregate principal amount of the outstanding Notes validly tender and do not withdraw such Notes in a Change of Control Offer and the Company, or any third party making a Change of Control Offer in lieu of the Company pursuant to Section 7.30(i) above, purchases all of the Notes validly tendered and not withdrawn by such Holders, the Company will have the right, upon not less than 30 nor more than 60 days’ prior written notice, given not more than 30 days following the purchase pursuant to the Change of Control Offer described under this Section 7.30, to redeem all of the Notes that remain outstanding following such purchase at a redemption price in cash equal to the applicable Change of Control Payment plus, to the extent not included in the Change of Control Payment, accrued and unpaid interest, if any, to the date of redemption.
(k) A Change of Control Offer may be made in advance of a Change of Control, and conditioned upon the occurrence of a Change of Control, if a definitive agreement is in place for the Change of Control at the time of making of the Change of Control Offer.
Appears in 2 contracts
Samples: Indenture (Goodrich Petroleum Corp), Note Purchase Agreement (Goodrich Petroleum Corp)
Offer to Repurchase Upon a Change of Control. If (a) Upon the occurrence of a Change of Control occursControl, unless the Company has exercised its right shall make an offer (a "Change of Control Offer") to redeem the Notes under Section 3.07, each Holder of Notes shall have the right to require the Company to repurchase all or any part (equal to $1,000 or an integral multiple thereofof $1,000) of that each Holder’s 's Notes pursuant to at a change of control offer on the terms set forth in this Indenture (a “Change of Control Offer”). In the Change of Control Offer, the Company shall offer a payment in cash purchase price equal to 101% of the aggregate principal amount of Notes repurchased thereof plus accrued and unpaid interest and Liquidated Damages, if any, thereonon the Notes repurchased, to the date of purchase (the “"Change of Control Payment”"). Within 30 10 days following any Change of Control, the Company shall mail a notice to each Holder at its registered address. The notice shall contain all instructions and materials necessary to enable such Holder to tender Notes pursuant to describing the transaction or transactions that constitute the Change of Control Offer. Any Change of Control Offer shall be made to all Holders. The notice, which shall govern the terms of the Change of Control Offer, shall state: and stating:
(1) that the Change of Control Offer is being made pursuant to this Section 4.10; 4.15 and that all Notes tendered will be accepted for payment;
(2) the Change of Control Payment purchase price and the date on purchase date, which Notes tendered and accepted for payment shall be purchased, which date shall be at least no earlier than 30 days and no later than 60 business days from the date such notice is mailed (the “"Change of Control Payment Date”"); ;
(3) that any Note not tendered or accepted for payment shall will continue to accrete or accrue interest; ;
(4) that, unless the Company defaults in making such paymentthe payment of the Change of Control Payment, any Note all Notes accepted for payment pursuant to the Change of Control Offer shall will cease to accrete or accrue interest after the Change of Control Payment Date; ;
(5) that Holders electing to have a Note any Notes purchased pursuant to any a Change of Control Offer shall will be required to surrender the NoteNotes, with the form entitled “"Option of Holder to Elect Purchase” " on the reverse of the Note Notes completed, or transfer by book-entry transfer, to the Company, a depositary, if appointed by the Company, or the Paying Agent at the address specified in the notice at least three days before prior to the close of business on the third Business Day preceding the Change of Control Payment Date; ;
(6) that Holders shall will be entitled to withdraw their election if the Company, the depositary or the Paying Agent, as the case may be, Agent receives, not later than the close of business on the second Business Day preceding the Change of Control Payment Date, a notice telegram, telex, facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Note the Holder Notes delivered for purchase purchase, and a statement that such Holder is withdrawing his election to have such Note the Notes purchased; and
(7) that Notes and portions of Notes purchased shall be in amounts of $1,000 or whole multiples of $1,000, except that if all of the Notes of a Holder are to be purchased, the entire outstanding amount of Notes held by such Holder, even if not a multiple of $1,000, shall be purchased; and (8) that Holders whose Notes were are being purchased only in part shall will be issued new Notes equal in principal amount to the unpurchased portion of the Notes surrendered (or transferred by book-entry transfer)surrendered, which unpurchased portion must be equal to $1,000 in principal amount or an integral multiple thereof. The Company shall comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such those laws and regulations are applicable in connection with the repurchase of the Notes as a result of a Change of in Control. To the extent that the provisions of any securities laws or regulations conflict with the Change provisions of Control provisions Sections 3.09 or 4.15 of this Indenture, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under the Change of Control provisions of Section 3.09 or this Indenture Section 4.15 by virtue of such conflict. .
(b) On the Change of Control Payment Date, the Company shall, to the extent lawful:
(1) accept for payment all Notes or portions thereof of Notes properly tendered pursuant to the Change of Control Offer;
(2) deposit with the Paying Agent paying agent an amount equal to the Change of Control Payment in respect of all Notes or portions thereof so of Notes properly tendered; and
(3) deliver or cause to be delivered to the Trustee the Notes so properly accepted together with an Officers’ ' Certificate stating the aggregate principal amount of Notes or portions thereof of Notes being purchased by the Company. The Paying Agent paying agent shall promptly mail to each Holder of Notes so properly tendered the Change of Control Payment for such Notes, and the Trustee shall promptly authenticate and mail (or cause to be transferred by book entry) to each Holder a new Note equal in principal amount to any unpurchased portion of the Notes surrendered, if any; provided that each such new Note shall be in a principal amount of $1,000 or an integral multiple thereofof $1,000. The Company shall publicly announce the results of the Change of Control Offer on or as soon as practicable after the Change of Control Payment Date. The provisions set forth described above that require the Company to make a Change of Control Offer following a Change of Control shall be applicable regardless of whether or not any other provisions of this Indenture are applicable. Notwithstanding anything to the contrary in this Section 4.10, the .
(c) 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 requirements set forth in this Section 4.10 Indenture applicable to a Change of Control Offer made by the Company and purchases all Notes validly properly tendered and not withdrawn under such the Change of Control Offer.
Appears in 2 contracts
Samples: Supplemental Indenture (Cca Properties of America LLC), Supplemental Indenture (Corrections Corp of America)
Offer to Repurchase Upon a Change of Control. (a) If a Change of Control occurs, unless the Company has exercised its right to redeem the Notes under Section 3.07, each Holder of Notes shall will have the right to require that the Company to repurchase purchase all or any part (equal to in amounts of $1,000 or an integral multiple whole multiples of $1,000 in excess thereof) of that such Holder’s Notes pursuant to a change of control the offer on described below (the terms set forth in this Indenture (a “Change of Control Offer”). In the Change of Control Offer, the Company shall will offer to purchase all of the Notes, at a payment purchase price (the “Change of Control Purchase Price”) in cash in an amount equal to 101% of the aggregate principal amount of Notes repurchased such Notes, plus accrued and unpaid interest and Liquidated Damagesinterest, if any, thereon, to the date of purchase (the “Change of Control PaymentPurchase Date”). , subject to the rights of Holders of record on relevant record dates to receive interest due on an Interest Payment Date.
(b) Within 30 days following after any Change of ControlControl or, at the Company’s option, prior to such Change of Control but after it is publicly announced, the Company shall mail a must notify the Trustee and give written notice to each Holder at its registered address. The notice shall contain all instructions and materials necessary to enable such Holder to tender Notes pursuant to the Change of Control Offer. Any Change of Control Offer shall be made to all Holders. The notice, which shall govern the terms of the Change of Control Offer(the “Change of Control Purchase Notice”) to each Holder of Notes, shall by first-class mail, postage prepaid, at his address appearing in the security register. The Change of Control Purchase Notice must state: , among other things,
(1) that the a Change of Control Offer is being made pursuant to this Section 4.10; has occurred or will occur and the date of such event;
(2) the circumstances and relevant facts regarding such Change of Control;
(3) the Change of Control Payment Purchase Price and the date on Change of Control Purchase Date, which Notes tendered and accepted for payment shall be purchased, which date shall be at least fixed by the Company on a Business Day no earlier than 30 days and no nor later than 60 days from the date such the notice is mailed (mailed, or such later date as is necessary to comply with requirements under the “Exchange Act; provided that the Change of Control Payment Date”); Purchase Date may not occur prior to the Change of Control;
(34) that any Note not tendered or accepted for payment shall will continue to accrete or accrue interest; ;
(45) that, unless the Company defaults in making such paymentthe payment of the Change of Control Purchase Price, any Note Notes accepted for payment pursuant to the Change of Control Offer shall cease to accrete or accrue interest after the Change of Control Payment Purchase Date; and
(56) other procedures that a Holder of Notes must follow to accept a Change of Control Offer or to withdraw acceptance of the Change of Control Offer.
(c) Upon receipt by the Company of the proper tender of Notes, the Holder of the Note in respect of which such proper tender was made shall (unless the tender of such Note is properly withdrawn at least one Business Day prior to the Change of Control Purchase Date) thereafter be entitled to receive solely the Change of Control Purchase Price with respect to such Notes. Upon surrender of any such Note for purchase in accordance with the foregoing provisions, such Note shall be paid by the Company at the Change of Control Purchase Price; provided, however, that installments of interest whose Stated Maturity is on or prior to the Change of Control Purchase Date shall be payable to the Holders of such Notes, registered as such on the relevant record dates according to the terms and the provisions of Section 2.03. If any Note tendered for purchase in accordance with the provisions of this Section 4.19 shall not be so paid upon surrender thereof, the principal thereof (and premium, if any, thereon) shall, until paid, bear interest from the Change of Control Purchase Date at the rate borne by such Note. Holders electing to have a Note Notes purchased pursuant to any Change of Control Offer shall will be required to surrender the Note, with the form entitled “Option of Holder such Notes to Elect Purchase” on the reverse of the Note completed, or transfer by book-entry transfer, to the Company, a depositary, if appointed by the Company, or the Paying Agent at the address specified in the notice Change of Control Purchase Notice at least three days before one Business Day prior to the Change of Control Payment Purchase Date; (6) . Any Note that Holders is to be purchased only in part shall be entitled surrendered to withdraw their election a Paying Agent at the office of such Paying Agent (with, if the Company, the depositary Registrar or the Paying AgentTrustee so require, due endorsement by, or a written instrument of transfer in form satisfactory to the Company and the Registrar or the Trustee, as the case may be, receivesduly executed by, the Holder thereof or such Holder’s 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, one or more new Notes of any authorized denomination as requested by such Holder in an aggregate principal amount equal to, and in exchange for, the portion of the principal amount of the Note so surrendered that is not purchased.
(d) The Company shall (i) not later than the Change of Control Payment Purchase Date, accept for payment Notes or portions thereof tendered pursuant to the Change of Control Offer, (ii) not later than 1:00 p.m. (New York time) on the Business Day following the Change of Control Purchase Date, deposit with the Trustee or with a Paying Agent an amount of money in same day funds sufficient to pay the aggregate Change of Control Purchase Price of all the Notes or portions thereof which have been so accepted for payment and (iii) not later than 1:00 p.m. (New York time) on the Business Day following the Change of Control Purchase Date, deliver to the Paying Agent an Officers’ Certificate stating the Notes or portions thereof accepted for payment by the Company. The Paying Agent shall promptly mail or deliver to Holders of Notes so accepted payment in an amount equal to the Change of Control Purchase Price of the Notes purchased from each such Holder, and the Company shall execute and the Trustee shall promptly authenticate and mail or deliver to such Holders a new Note equal in principal amount to any unpurchased portion of the Note surrendered. Any Notes not so accepted shall be promptly mailed or delivered by the Paying Agent at the Company’s expense to the Holder thereof. The Company will publicly announce the results of the Change of Control Offer on the Change of Control Purchase Date. For purposes of this Section 4.19, the Company shall choose a Paying Agent which shall not be the Company.
(e) A tender made in response to a Change of Control Purchase Notice may be withdrawn if the Company receives, not later than one Business Day prior to the Change of Control Purchase Date, a notice setting forth telegram, telex, facsimile transmission or letter, specifying, as applicable:
(1) the name of the Holder, ;
(2) the certificate number of the Note in respect of which such notice of withdrawal is being submitted;
(3) the principal amount of the Note the Holder (which shall be $1,000 or whole multiples of $1,000 in excess thereof) delivered for purchase and by the Company as to which such notice of withdrawal is being submitted;
(4) a statement that such Holder is withdrawing his election to have such principal amount of such Note purchased; and
(75) that Notes and portions the principal amount, if any, of Notes purchased such Note (which shall be in amounts of $1,000 or whole multiples of $1,0001,000 in excess thereof) that remains subject to the original Change of Control Purchase Notice and that has been or will be delivered for purchase by the Company.
(f) The Trustee and the Paying Agent shall return to the Company, except upon its request, any cash that remains unclaimed for two years after a Change of Control Purchase Date together with interest or dividends, if any, thereon (subject to Section 7.01(f)), held by them for the payment of the Change of Control Purchase Price; and the Holder of such tendered and accepted Note shall thereafter look only to the Company for payment thereof, and all liability of the Trustee or such Paying Agent with respect to such cash, and all liability of the Company as trustee thereof, shall thereupon cease; provided, however, that the Trustee or such Paying Agent, before being required to make any such repayment, shall at the expense of the Company cause to be published once in The New York Times and The Wall Street Journal (national edition) or send to each Holder entitled to such money notice that such money remains unclaimed and that, after a date specified therein, which shall not be less than 30 days from the date of such notification or publication, any unclaimed balance of such money then remaining shall be repaid to the Company; provided, further however, that (x) to the extent that the aggregate amount of cash deposited by the Company pursuant to clause (ii) of paragraph (d) of this Section 4.19 exceeds the aggregate Change of Control Purchase Price of the Notes of a Holder are or portions thereof to be purchased, then the entire outstanding amount of Notes held by Trustee shall hold such Holder, even if not a multiple of $1,000, shall be purchased; excess for the Company and (8) that Holders whose Notes were purchased only y) unless otherwise directed by the Company in part writing, promptly after the Business Day following the Change of Control Purchase Date the Trustee shall be issued new Notes equal in principal amount return any such excess to the unpurchased portion of the Notes surrendered Company together with interest, if any, thereon (or transferred by book-entry transfersubject to Section 7.01(f), which unpurchased portion must be equal to $1,000 in principal amount or an integral multiple thereof. ).
(g) The Company shall comply with the requirements of applicable tender offer rules, including Rule 14e-1 under the Exchange Act Act, and any other applicable securities laws and or regulations thereunder to the extent such laws and regulations are applicable in connection with the repurchase of the Notes as a result of a Change of ControlControl Offer. To the extent that the provisions of any securities laws or regulations conflict with the Change of Control provisions of this IndentureSection 4.19, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under the Change of Control provisions of this Indenture Section 4.19 by virtue of such conflict. On the Change of Control Payment Date, the Company shall, to the extent lawful:.
(1h) accept for payment all Notes or portions thereof properly tendered pursuant to Notwithstanding the Change of Control Offer;
(2) deposit with the Paying Agent an amount equal to the Change of Control Payment in respect of all Notes or portions thereof so tendered; and
(3) 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. The Paying Agent shall promptly mail to each Holder of Notes so tendered the Change of Control Payment for such Notes, and the Trustee shall promptly authenticate and mail (or cause to be transferred by book entry) to each Holder a new Note equal in principal amount to any unpurchased portion of the Notes surrendered, if any; provided that each such new Note shall be in a principal amount of $1,000 or an integral multiple thereof. The Company shall publicly announce the results of the Change of Control Offer on or as soon as practicable after the Change of Control Payment Date. The provisions set forth above that require the Company to make a Change of Control Offer following a Change of Control shall be applicable regardless of whether or not any other provisions of this Indenture are applicable. Notwithstanding anything to the contrary in this Section 4.10foregoing, the Company shall not be required to make a Change of Control Offer (i) 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 requirements set forth in this Section 4.10 Indenture applicable to a Change of Control Offer made by the Company and purchases all Notes validly tendered and not withdrawn under such Change of Control OfferOffer or (ii) if notice of redemption for 100% of the aggregate principal amount of the outstanding Notes has been given pursuant to Section 3.07, unless and until there is a default in payment of the applicable redemption price.
(i) In the event that Holders of not less than 90% of the aggregate principal amount of the outstanding Notes accept a Change of Control Offer and the Company purchases all of the Notes held by such Holders, the Company will have the right, upon not less than 30 nor more than 60 days’ prior notice, given not more than 30 days following the purchase pursuant to the Change of Control Offer described under this Section 4.19, to redeem all of the Notes that remain outstanding following such purchase at a redemption price equal to 101% of the aggregate principal amount of Notes redeemed plus accrued and unpaid interest, if any, thereon to the date of redemption, subject to the right of the Holders of record on relevant record dates to receive interest due on an Interest Payment Date.
Appears in 2 contracts
Samples: Indenture (Continental Resources Inc), Indenture (Continental Resources Inc)
Offer to Repurchase Upon a Change of Control. (a) If a Change of Control occurs, unless the Company has exercised its right to redeem the Notes under Section 3.07, each Holder of Notes shall have the right to require that the Company to repurchase purchase all or any part (equal to in amounts of $1,000 or an integral multiple whole multiples of $1,000 in excess thereof) of that such Holder’s Notes pursuant to a change of control the offer on described below (the terms set forth in this Indenture (a “Change of Control Offer”). In the Change of Control Offer, the Company shall offer to purchase all of the Notes, at a payment purchase price (the “Change of Control Purchase Price”) in cash in an amount equal to 101% of the aggregate principal amount of Notes repurchased such Notes, plus accrued and unpaid interest and Liquidated Damagesinterest, if any, thereon, to the date of purchase (the “Change of Control PaymentPurchase Date”) (subject to the rights of holders of record on relevant record dates to receive interest due on an interest payment date). .
(b) Within 30 days following after any Change of ControlControl or, at the Company’s option, prior to such Change of Control but after it is publicly announced, the Company shall mail a must notify the Trustee and give written notice to each Holder at its registered address. The notice shall contain all instructions and materials necessary to enable such Holder to tender Notes pursuant to the Change of Control Offer. Any Change of Control Offer shall be made to all Holders. The notice, which shall govern the terms of the Change of Control Offer(the “Change of Control Purchase Notice”) to each Holder of Notes, shall by first-class mail, postage prepaid, at his address appearing in the security register. The Change of Control Purchase Notice must state: , among other things:
(1) that the a Change of Control Offer is being made pursuant to this Section 4.10; has occurred or will occur and the date of such event;
(2) the circumstances and relevant facts regarding such Change of Control, including information with respect to pro forma historical income, cash flow and capitalization after giving effect to such Change of Control;
(3) the Change of Control Payment Purchase Price and the date on Change of Control Purchase Date, which Notes tendered and accepted for payment shall be purchased, which date shall be at least fixed by the Company on a Business Day no earlier than 30 days and no nor later than 60 days from the date such the notice is mailed (mailed, or such later date as is necessary to comply with requirements under the “Exchange Act; provided that the Change of Control Payment Date”); Purchase Date may not occur prior to the Change of Control;
(34) that any Note not tendered or accepted for payment shall will continue to accrete or accrue interest; ;
(45) that, unless the Company defaults in making such paymentthe payment of the Change of Control Purchase Price, any Note Notes accepted for payment pursuant to the Change of Control Offer shall cease to accrete or accrue interest after the Change of Control Payment Purchase Date; and
(56) other procedures that a Holder of Notes must follow to accept a Change of Control Offer or to withdraw acceptance of the Change of Control Offer.
(c) Upon receipt by the Company of the proper tender of Notes, the Holder of the Note in respect of which such proper tender was made shall (unless the tender of such Note is properly withdrawn at least one Business Day prior to the Change of Control Purchase Date) thereafter be entitled to receive solely the Change of Control Purchase Price with respect to such Notes. Upon surrender of any such Note for purchase in accordance with the foregoing provisions, such Note shall be paid by the Company at the Change of Control Purchase Price; provided, however, that installments of interest whose Stated Maturity is on or prior to the Change of Control Purchase Date shall be payable to the Holders of such Notes, registered as such on the relevant Regular Record Dates according to the terms and the provisions of Section 2.03. If any Note tendered for purchase in accordance with the provisions of this Section 4.19 shall not be so paid upon surrender thereof, the principal thereof (and premium, if any, thereon) shall, until paid, bear interest from the Change of Control Purchase Date at the rate borne by such Note. Holders electing to have a Note Notes purchased pursuant to any Change of Control Offer shall will be required to surrender the Note, with the form entitled “Option of Holder such Notes to Elect Purchase” on the reverse of the Note completed, or transfer by book-entry transfer, to the Company, a depositary, if appointed by the Company, or the Paying Agent at the address specified in the notice Change of Control Purchase Notice at least three days before one Business Day prior to the Change of Control Payment Purchase Date; (6) . Any Note that Holders is to be purchased only in part shall be entitled surrendered to withdraw their election a Paying Agent at the office of such Paying Agent (with, if the Company, the depositary Registrar or the Paying AgentTrustee so require, due endorsement by, or a written instrument of transfer in form satisfactory to the Company and the Registrar or the Trustee, as the case may be, receivesduly executed by, the Holder thereof or such Holder’s 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, one or more new Notes of any authorized denomination as requested by such Holder in an aggregate principal amount equal to, and in exchange for, the portion of the principal amount of the Note so surrendered that is not purchased.
(d) The Company shall (i) not later than the Change of Control Payment Purchase Date, accept for payment Notes or portions thereof tendered pursuant to the Change of Control Offer, (ii) not later than 1:00 p.m. (New York time) on the Business Day following the Change of Control Purchase Date, deposit with the Trustee or with a Paying Agent an amount of money in same day funds sufficient to pay the aggregate Change of Control Purchase Price of all the Notes or portions thereof which have been so accepted for payment and (iii) not later than 1:00 p.m. (New York time) on the Business Day following the Change of Control Purchase Date, deliver to the Paying Agent an Officers’ Certificate stating the Notes or portions thereof accepted for payment by the Company. The Paying Agent shall promptly mail or deliver to Holders of Notes so accepted payment in an amount equal to the Change of Control Purchase Price of the Notes purchased from each such Holder, and the Company shall execute and the Trustee shall promptly authenticate and mail or deliver to such Holders a new Note equal in principal amount to any unpurchased portion of the Note surrendered. Any Notes not so accepted shall be promptly mailed or delivered by the Paying Agent at the Company’s expense to the Holder thereof. The Company will publicly announce the results of the Change of Control Offer on the Change of Control Purchase Date. For purposes of this Section 4.19, the Company shall choose a Paying Agent which shall not be the Company.
(e) A tender made in response to a Change of Control Purchase Notice may be withdrawn if the Company receives, not later than one Business Day prior to the Change of Control Purchase Date, a notice setting forth telegram, telex, facsimile transmission or letter, specifying, as applicable:
(1) the name of the Holder, ;
(2) the certificate number of the Note in respect of which such notice of withdrawal is being submitted;
(3) the principal amount of the Note the Holder (which shall be $1,000 or whole multiples of $1,000 in excess thereof) delivered for purchase and by the Company as to which such notice of withdrawal is being submitted;
(4) a statement that such Holder is withdrawing his election to have such principal amount of such Note purchased; and
(75) that Notes and portions the principal amount, if any, of Notes purchased such Note (which shall be in amounts of $1,000 or whole multiples of $1,0001,000 in excess thereof) that remains subject to the original Change of Control Purchase Notice and that has been or will be delivered for purchase by the Company.
(f) The Trustee and the Paying Agent shall return to the Company, except upon its request, any cash that remains unclaimed for two years after a Change of Control Purchase Date together with interest or dividends, if any, thereon (subject to Section 7.01(f) hereof), held by them for the payment of the Change of Control Purchase Price; and the Holder of such tendered and accepted Note shall thereafter look only to the Company for payment thereof, and all liability of the Trustee or such Paying Agent with respect to such cash, and all liability of the Company as trustee thereof, shall thereupon cease; provided, however, that the Trustee or such Paying Agent, before being required to make any such repayment, shall at the expense of the Company cause to be published once in The New York Times and The Wall Street Journal (national edition) or send to each Holder entitled to such money notice that such money remains unclaimed and that, after a date specified therein, which shall not be less than 30 days from the date of such notification or publication, any unclaimed balance of such money then remaining shall be repaid to the Company; provided, further however, that (x) to the extent that the aggregate amount of cash deposited by the Company pursuant to clause (ii) of paragraph (d) of this Section 4.19 exceeds the aggregate Change of Control Purchase Price of the Notes of a Holder are or portions thereof to be purchased, then the entire outstanding amount of Notes held by Trustee shall hold such Holder, even if not a multiple of $1,000, shall be purchased; excess for the Company and (8) that Holders whose Notes were purchased only y) unless otherwise directed by the Company in part writing, promptly after the Business Day following the Change of Control Purchase Date the Trustee shall be issued new Notes equal in principal amount return any such excess to the unpurchased portion of the Notes surrendered Company together with interest, if any, thereon (or transferred by book-entry transfersubject to Section 7.01(f) hereof), which unpurchased portion must be equal to $1,000 in principal amount or an integral multiple thereof. .
(g) The Company shall comply with the requirements of applicable tender offer rules, including Rule 14e-1 under the Exchange Act Act, and any other applicable securities laws and or regulations thereunder to the extent such laws and regulations are applicable in connection with the repurchase of the Notes as a result of a Change of ControlControl Offer. To the extent that the provisions of any securities laws or regulations conflict with the Change of Control provisions of this IndentureSection 4.19, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under the Change of Control provisions of this Indenture Section 4.19 by virtue of such conflict. On the Change of Control Payment Date, the Company shall, to the extent lawful:.
(1h) accept for payment all Notes or portions thereof properly tendered pursuant to Notwithstanding the Change of Control Offer;
(2) deposit with the Paying Agent an amount equal to the Change of Control Payment in respect of all Notes or portions thereof so tendered; and
(3) 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. The Paying Agent shall promptly mail to each Holder of Notes so tendered the Change of Control Payment for such Notes, and the Trustee shall promptly authenticate and mail (or cause to be transferred by book entry) to each Holder a new Note equal in principal amount to any unpurchased portion of the Notes surrendered, if any; provided that each such new Note shall be in a principal amount of $1,000 or an integral multiple thereof. The Company shall publicly announce the results of the Change of Control Offer on or as soon as practicable after the Change of Control Payment Date. The provisions set forth above that require the Company to make a Change of Control Offer following a Change of Control shall be applicable regardless of whether or not any other provisions of this Indenture are applicable. Notwithstanding anything to the contrary in this Section 4.10foregoing, 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 requirements set forth in this Section 4.10 Indenture applicable to a Change of Control Offer made by the Company and purchases all Notes validly tendered and not withdrawn under such Change of Control Offer.
Appears in 1 contract
Offer to Repurchase Upon a Change of Control. If (a) Upon the occurrence of a Change of Control occursControl, unless the Company has exercised its right shall make an offer (a "Change of Control Offer") to redeem the Notes under Section 3.07, each Holder of Notes shall have the right to require the Company to repurchase repurchase, at ----------------------- each Holder's option, all or any part (of each Holder's Notes at a purchase price equal to $1,000 or an integral multiple thereof) of that Holder’s Notes the amount in cash and Common Stock payable by the Company pursuant to a change of control offer Section 3.07 as if such Notes were being redeemed by the Company on the terms set forth in this Indenture (a “Change date of Control Offer”). In the Change of Control Offer, the Company shall offer a payment in cash equal to 101% of the aggregate principal amount of Notes repurchased plus accrued and unpaid interest and Liquidated Damages, if any, thereon, to the date of purchase (the “"Change of Control Payment”"). Within 30 10 days ------------------------- following any Change of Control, the Company shall mail a notice to each Holder at its registered address. The notice shall contain all instructions and materials necessary to enable such Holder to tender Notes pursuant to the Change of Control Offer. Any Change of Control Offer shall be made to all Holders. The notice, which shall govern the terms of the Change of Control Offer, shall state: stating:
(1i) that the Change of Control Offer is being made pursuant to this Section 4.10; 4.15 and that all Notes tendered will be accepted for payment;
(2ii) the Change of Control Payment purchase price and the date on purchase date, which Notes tendered and accepted for payment shall be purchased, which date shall be at least no earlier than 30 days and no later than 60 days from the date such notice is mailed (the “"Change of Control Payment Date”"); ------------------------------
(3iii) that any Note not tendered or accepted in full for payment shall will continue to accrete or accrue interest; interest to the extent that such Note is not accepted in full for payment;
(4iv) that, unless the Company defaults in making such paymentthe payment of the Change of Control Payment, any Note all Notes, to the extent accepted for payment pursuant to the Change of Control Offer Offer, shall cease to accrete or accrue interest after the Change of Control Payment Date; ;
(5v) that Holders electing to have a any Note purchased pursuant to any a Change of Control Offer shall will be required to surrender the all of such Note, with the form entitled “"Option of Holder to Elect Purchase” " on the reverse of the Note completed, or transfer by book-entry transfer, to the Company, a depositary, if appointed by the Company, or the Paying Agent at the address specified in the notice at least three days before prior to the close of business on the third Business Day preceding the Change of Control Payment Date; , and may not elect to have only a portion of any Note purchased;
(6vi) that Holders shall will be entitled to withdraw their election if the Company, the depositary or the Paying Agent, as the case may be, Agent receives, not later than the close of business on the second Business Day preceding the Change of Control Payment Date, a notice telegram, telex, facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Note the Holder delivered for purchase and a statement that such Holder Xxxxxx is withdrawing his the election thereof to have such Note purchased; and
(7vii) that Notes and portions of Notes purchased shall be in amounts of $1,000 or whole multiples of $1,000, except that if all of the Notes of a Holder are to be purchased, the entire outstanding amount of Notes held by such Holder, even if not a multiple of $1,000, shall be purchased; and (8) that Holders whose Notes were are being purchased only in part shall be issued new Notes equal in principal amount to the unpurchased portion of the Notes surrendered (or transferred by book-entry transfer), which unpurchased portion must be equal to $1,000 in principal amount or an integral multiple thereof. The Company shall comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws and regulations are applicable in connection with the repurchase of the Notes as a result of in connection with a Change of Control. To the extent that the provisions of any securities laws or regulations conflict with the Change of Control provisions of this Indenture, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under the Change of Control provisions of this Indenture by virtue of such conflict. .
(b) On the Change of Control Payment Date, the Company shall, to the extent lawful:
, (1) accept for payment all Notes or portions thereof properly tendered pursuant to the Change of Control Offer;
, (2) deposit with the Paying Agent an amount equal to the Change of Control Payment in respect of all Notes or portions thereof so tendered; and
tendered and (3) 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. The Paying Agent shall promptly mail or deliver to each Holder of Notes so tendered payment in an amount equal to the Change of Control Payment purchase price for the Notes tendered by such NotesHolder, and the Trustee shall promptly authenticate and mail (or cause to be transferred by book entry) to each such Holder a new Note equal in principal amount to any unpurchased portion of the Notes surrendered, if any; provided that each such new Note .
(c) Prior to complying with the provisions of this Section 4.15, but in any event within 90 days following a Change of Control, the Company shall either repay or cause to be in a principal amount repaid all outstanding Senior Debt or obtain the requisite consents, if any, under all agreements governing outstanding Senior Debt to permit the repurchase of $1,000 or an integral multiple thereofNotes required by this Section 4.15. The Company shall publicly announce the results of the Change of Control Offer on or as soon as practicable after the Change of Control Payment Date. .
(d) The provisions set forth above that require the Company to make a Change of Control Offer following a Change of Control provisions described above shall be applicable regardless of whether or not any other provisions of this Indenture are applicable. Notwithstanding anything to the -42- contrary in this Section 4.104.15, 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 requirements set forth in this Section 4.10 4.15 and Section 3.09 hereof and purchases all Notes validly tendered and not withdrawn under such Change of Control Offer.
Appears in 1 contract
Samples: Indenture (Timco Engine Center Inc)
Offer to Repurchase Upon a Change of Control. (a) If a Change of Control occurs, unless the Company has previously or concurrently exercised its right to redeem all of the Notes under pursuant to Section 3.07, each Holder of Notes shall will have the right to require the Company to repurchase all or any part (equal to $1,000 2,000 or an integral multiple thereofof $1,000 in excess of $2,000) of that such Holder’s Notes pursuant to at a change of control offer on the terms set forth in this Indenture (a “Change of Control Offer”). In the Change of Control Offer, the Company shall offer a payment purchase price in cash equal to 101% of the aggregate principal amount of the Notes repurchased plus accrued and unpaid interest and Liquidated Damagesinterest, if any, thereon, to the date of purchase (subject to the right of Holders of record on the relevant record date to receive interest due on the relevant Interest Payment Date).
(b) Within 30 days following any Change of Control, unless the Company has previously or concurrently exercised its right to redeem all of the Notes pursuant to Section 3.07, the Company shall mail a notice (the “Change of Control Offer”) to each Holder, with a copy to the Trustee, stating, among other things:
(1) that a Change of Control has occurred and that such Holder has the right to require the Company to purchase such Holder’s Notes at a purchase price in cash equal to 101% of the principal amount of such Notes plus accrued and unpaid interest, if any, to the date of purchase (subject to the right of Holders of record on a record date to receive interest on the relevant Interest Payment Date) (the “Change of Control Payment”). Within 30 days following any Change of Control, the Company shall mail a notice to each Holder at its registered address. The notice shall contain all instructions and materials necessary to enable such Holder to tender Notes pursuant to the Change of Control Offer. Any Change of Control Offer shall be made to all Holders. The notice, which shall govern the terms of the Change of Control Offer, shall state: (1) that the Change of Control Offer is being made pursuant to this Section 4.10; ;
(2) the Change of Control Payment and the repurchase date on (which Notes tendered and accepted for payment shall be purchased, which date shall be at least no earlier than 30 days and no nor later than 60 days from the date such notice is mailed mailed) (the “Change of Control Payment Date”); ;
(3) that any Note not properly tendered or accepted for payment shall will remain outstanding and continue to accrete or accrue interest; ;
(4) that, that unless the Company defaults in making such paymentthe payment of the Change of Control Payment, any Note all Notes accepted for payment pursuant to the Change of Control Offer shall will cease to accrete or accrue interest after on the Change of Control Payment Date; ;
(5) that Holders electing to have a Note any Notes in certificated form purchased pursuant to any a Change of Control Offer shall will be required to surrender the Notesuch Notes, with the form entitled “Option of Holder to Elect Purchase” on the reverse of the Note such Notes completed, or transfer by book-entry transfer, to the Company, a depositary, if appointed by paying agent specified in the Company, or the Paying Agent notice at the address specified in the notice at least three days before prior to the close of business on the third Business Day preceding the Change of Control Payment Date; ;
(6) that Holders shall will be entitled to withdraw their tendered Notes and their election if to require the CompanyCompany to purchase such Notes, provided, that the depositary or the Paying Agent, as the case may be, paying agent receives, not later than the close of business on the third Business Day preceding the Change of Control Payment Date, a notice setting forth telegram, telex, facsimile transmission or letter complying with the name requirements of the Holder, the principal amount of the Note the Holder delivered for purchase and a statement that such Holder is withdrawing his election to have such Note purchased; Section 4.15(f) below;
(7) that Notes and portions of Notes purchased shall be in amounts of $1,000 or whole multiples of $1,000, except that if all the Company is repurchasing a portion of the Notes Note of a Holder are to be purchasedany Holder, the entire outstanding amount of Notes held by such Holder, even if not a multiple of $1,000, shall be purchased; and (8) that Holders whose Notes were purchased only in part shall Holder will be issued a new Notes Note equal in principal amount to the unpurchased portion of the Notes surrendered (or transferred by book-entry transfer)Note surrendered, which provided, that the unpurchased portion of the Note must be equal to a minimum principal amount of $2,000 and an integral multiple of $1,000 in principal amount or an integral multiple thereof. The Company shall comply excess of $2,000; and
(8) other procedures determined by the Company, consistent with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws and regulations are applicable in connection with the repurchase of the Notes as a result of a Change of Control. To the extent that the provisions of any securities laws or regulations conflict with the Change of Control provisions of this Indenture, the Company shall comply with the applicable securities laws and regulations and shall not be deemed that a Holder must follow in order to have breached its obligations under the Change of Control provisions of this Indenture by virtue of such conflict. Notes repurchased.
(c) On the Change of Control Payment Date, the Company shallwill, to the extent lawful:
(1) accept for payment all Notes or portions thereof of Notes (in a minimum principal amount of $2,000 and integral multiples of $1,000 in excess of $2,000) properly tendered pursuant to the Change of Control OfferOffer and not properly withdrawn;
(2) deposit with the Paying Agent paying agent an amount equal to the Change of Control Payment in respect of all Notes or portions thereof so tenderedof Notes accepted for payment, provided, however, that the funds once deposited are to be uninvested until disbursed pursuant to this Section 4.15; and
(3) 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 of Notes being purchased by the Company. .
(d) The Paying Agent shall paying agent will promptly mail or deliver to each Holder of Notes so tendered accepted for payment the Change of Control Payment for such Notes, and the Trustee shall will promptly authenticate and mail (or cause to be transferred by book entry) to each Holder a new Note equal in principal amount to any unpurchased portion of the Notes surrendered, if any; provided provided, that each such new Note shall will be in a minimum principal amount of $1,000 2,000 or an integral multiple thereof. The Company shall publicly announce the results of $1,000 in excess of $2,000.
(e) If the Change of Control Offer Payment Date is on or as soon as practicable after an interest record date and on or before the related Interest Payment Date, any accrued and unpaid interest, will be paid to the Person in whose name a Note is registered at the close of business on such record date, and no further interest will be payable to Holders who tender pursuant to the Change of Control Offer.
(f) A tender made in response to a Change of Control Payment Notice may be withdrawn if the Company receives, not later than the third Business Day prior to the Change of Control Payment Date. The provisions set forth above that require , a telegram, telex, facsimile transmission or letter, specifying, as applicable: (1) the name of the Holder; (2) the certificate number of the Note in respect of which such notice of withdrawal is being submitted; (3) the principal amount of the Note (which shall be $2,000 or whole multiples of $1,000 in excess thereof) delivered for purchase by the Company as to make which such notice of withdrawal is being submitted; (4) a statement that such Holder is withdrawing his election to have such principal amount of such Note purchased; and (5) the principal amount, if any, of such Note (which shall be $2,000 or whole multiples of $1,000 in excess thereof) that remains subject to the original Change of Control Payment Notice and that has been or will be delivered for purchase by the Company.
(g) Subject to applicable unclaimed property laws, the Trustee and the Paying Agent shall return to the Company, upon its request, any cash that remains unclaimed for two years after a Change of Control Offer Payment Date together with interest or dividends, if any, thereon (subject to Section 7.01(f)), held by them for the payment of the Change of Control Payment; and the Holder of such tendered and accepted Note shall thereafter look only to the Company for payment thereof, and all liability of the Trustee or such Paying Agent with respect to such cash, and all liability of the Company as trustee thereof, shall thereupon cease; provided, however, that the Trustee or such Paying Agent, before being required to make any such repayment, shall at the expense of the Company comply with the Commission Regulation 17AD-17 as it applies to lost bondholders; provided, further however, that (x) to the extent that the aggregate amount of cash deposited by the Company pursuant to clause (2) of paragraph (c) of this Section 4.15 exceeds the aggregate Change of Control Payment of the Notes or portions thereof to be purchased, then the Trustee shall hold such excess for the Company and (y) unless otherwise directed by the Company in writing, promptly after the Business Day following the Change of Control Payment Date the Trustee shall return any such excess to the Company together with interest, if any, thereon (subject to Section 7.01(f)).
(h) The Company shall comply, to the extent applicable, with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws or regulations in connection with the repurchase of Notes as a result of a Change of Control shall be applicable regardless of whether or not any other Control. To the extent that the provisions of this Indenture are applicable. Notwithstanding anything to the contrary in any securities laws or regulations conflict with this Section 4.104.15, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under this Section 4.15 by virtue of such conflict.
(i) Notwithstanding the foregoing, 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 requirements set forth in this Section 4.10 Indenture applicable to a Change of Control Offer made by the Company and purchases all Notes validly tendered and not withdrawn under such Change of Control Offer.
(j) In the event that Holders of not less than 90% of the aggregate principal amount of the outstanding Notes validly tender and do not withdraw such Notes in a Change of Control Offer and the Company, or any third party making a Change of Control Offer in lieu of the Company pursuant to Section 4.15(i) above, purchases all of the Notes validly tendered and not withdrawn by such Holders, the Company will have the right, upon not less than 30 nor more than 60 days’ prior notice, given not more than 30 days following the purchase pursuant to the Change of Control Offer described under this Section 4.15, to redeem all of the Notes that remain outstanding following such purchase at a redemption price in cash equal to the applicable Change of Control Payment plus, to the extent not included in the Change of Control Payment, accrued and unpaid interest, if any, to the date of redemption.
(k) A Change of Control Offer may be made in advance of a Change of Control, and conditioned upon the occurrence of a Change of Control, if a definitive agreement is in place for the Change of Control at the time of making of the Change of Control Offer.
Appears in 1 contract
Samples: Indenture (Goodrich Petroleum Corp)
Offer to Repurchase Upon a Change of Control. If a Change of Control occurs, unless the Company has exercised its right to redeem all the Notes under Section 3.073.08 hereof, each Holder of Notes shall have the right to require the Company to repurchase all or any part (equal to $2,000 or integral multiples of $1,000 or an integral multiple in excess thereof) of that Holder’s Notes pursuant to a change of control offer on the terms set forth in this Indenture (a “Change of Control Offer”). In the Change of Control Offer, the Company shall offer a payment in cash equal to 101% of the aggregate principal amount of Notes repurchased repurchased, plus accrued and unpaid interest and Liquidated Damages, if any, thereon, to (but not including) the date of purchase (the “Change of Control Payment”). Within 30 days following any Change of ControlControl or, at the Company’s option, prior to the consummation of such Change of Control but after the public announcement thereof, the Company shall mail provide a notice to each Holder at its registered addressaddress (with a copy to the Trustee) describing the transaction or transactions that constitute the Change of Control and offering to repurchase Notes on the date specified in such notice. The notice shall contain all instructions and materials necessary to enable such Holder to tender Notes pursuant to the Change of Control Offer. Any Change of Control Offer shall be made to all Holders. The notice, which shall govern the terms of the Change of Control Offer, shall state: (1) that the Change of Control Offer is being made pursuant to this Section 4.104.08; (2) the Change of Control Payment and the date on which Notes tendered and accepted for payment shall be purchased, which date shall be at least no earlier than 30 days and no later than 60 days from the date such notice is mailed provided (other than as required by law) (the “Change of Control Payment Date”); (3) that any Note not tendered or accepted for payment shall continue to accrete or accrue interest; (4) that, unless the Company defaults in making such payment, any Note accepted for payment pursuant to the Change of Control Offer shall cease to accrete or accrue interest after the Change of Control Payment Date; (5) that Holders electing to have a Note purchased pursuant to any Change of Control Offer shall be required to surrender the Note, with the form entitled “Option of Holder to Elect Purchase” on the reverse of the Note completed, or transfer by book-entry transfer, to the Company, a depositary, if appointed by the Company, or the Paying Agent at the address specified in the notice at least three days before the Change of Control Payment Date; (6) that Holders shall be entitled to withdraw their election if the Company, the depositary or the Paying Agent, as the case may be, receives, not later than the Change of Control Payment Date, a notice setting forth the name of the Holder, the principal amount of the Note the Holder delivered for purchase and a statement that such Holder is withdrawing his election to have such Note purchased; (7) that Notes and portions of Notes purchased shall be in amounts of $1,000 2,000 or whole multiples an integral multiple of $1,0001,000 in excess thereof, except that if all of the Notes of a Holder are to be purchased, the entire outstanding amount of Notes held by such Holder, even if not a $2,000 or an integral multiple of $1,0001,000 in excess thereof, shall be purchased; and (8) that Holders whose Notes were purchased only in part shall be issued new Notes equal in principal amount to the unpurchased portion of the Notes surrendered (or transferred by book-entry transfer), which unpurchased portion must be equal to $1,000 in principal amount 2,000 or an integral multiple of $1,000 in excess thereof. The Company shall comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws and regulations are applicable in connection with the repurchase of the Notes as a result of a Change of Control. To the extent that the provisions of any securities laws or regulations conflict with the Change of Control provisions of this Indenture, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under the Change of Control provisions of this Indenture by virtue of such conflict. On the Change of Control Payment Date, the Company shall, to the extent lawful:
(1) accept for payment all Notes or portions thereof properly tendered pursuant to the Change of Control Offer;
(2) deposit with the Paying Agent an amount equal to the Change of Control Payment in respect of all Notes or portions thereof so tendered; and
(3) 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. The Paying Agent shall promptly mail cause to be delivered to each Holder of Notes so tendered the Change of Control Payment for such Notes, and the Trustee (or an authentication agent appointed by it) shall promptly authenticate and mail (or cause to be transferred by book entry) to each Holder a new Note equal in principal amount to any unpurchased portion of the Notes surrendered, if any; provided that each such new Note shall be in a principal amount of $1,000 2,000 or an integral multiple of $1,000 in excess thereof. The Company shall publicly announce the results of the Change of Control Offer on or as soon as practicable after the Change of Control Payment Date. The provisions set forth above that require the Company to make a Change of Control Offer following a Change of Control shall not be applicable regardless of whether or not any other provisions after a discharge of this Indenture are applicablepursuant to Section 8.01 or defeasance from the Company’s legal obligations with respect to the Notes pursuant to Section 8.03 or Section 8.04. Notwithstanding anything to the contrary in this Section 4.104.08, the Company shall not be required to make a Change of Control Offer upon a Change of Control if (i) a third party makes the Change of Control Offer in the manner, at the times and otherwise in compliance with the requirements set forth in this Section 4.10 4.08 and purchases all Notes validly tendered and not withdrawn under such Change of Control OfferOffer or (ii) notice of redemption has been given pursuant to Section 3.08, unless and until there is a default in payment of the applicable redemption price. Notwithstanding anything to the contrary contained herein, a Change of Control Offer may be made in advance of a Change of Control, conditioned upon the consummation of such Change of Control, if a definitive agreement is in place providing for the Change of Control at the time the Change of Control Offer is made. In the event Holders of not less than 90% of the aggregate principal amount of the outstanding Notes tender and do not withdraw such Notes in a Change of Control Offer and the Company purchases all the properly tendered and not withdrawn Notes held by such Holders, within 90 days of such purchase, the Company will have the right, upon not less than 10 days and not more than 60 days prior notice to Holders as provided under Section 3.03, to redeem all the Notes that remain outstanding following such purchase at a redemption price equal to the Change of Control Payment (it being understood that the date of purchase for purposes of such definition is the date of redemption) (subject to the right of Holders of record on the relevant record date to receive interest due on the Notes on the relevant interest payment date).
Appears in 1 contract
Samples: Indenture (O-I Glass, Inc. /DE/)
Offer to Repurchase Upon a Change of Control. If (a) Upon the occurrence of a Change of Control occursControl, unless the Company has previously or concurrently exercised its right to redeem all of the Notes under pursuant to Section 3.073.01, each Holder of Notes shall have the right to require the Company to repurchase all or any part (equal to $1,000 or an integral multiple thereof) of that such Holder’s Notes pursuant to at a change of control offer on the terms set forth in this Indenture (a “Change of Control Offer”). In the Change of Control Offer, the Company shall offer a payment purchase price in cash equal to 101101.0% of the aggregate principal amount of the Notes repurchased plus accrued and unpaid interest and Liquidated Damagesinterest, if any, thereon, to the date of purchase (subject to the right of Holders of record on the relevant Regular Record Date to receive interest due on an Interest Payment Date falling on or prior to the date of purchase).
(b) Prior to or within 30 days following any Change of Control, unless the Company has previously or concurrently exercised its right to redeem all of the Notes pursuant to Section 3.01, the Company shall deliver a notice (the “Change of Control Offer”) to each Holder or otherwise give notice in accordance with the applicable procedures of the Depositary, with a copy to the Trustee, stating:
(1) that a Change of Control has occurred or, if the Change of Control Offer is being made in advance of a Change of Control, that a Change of Control is expected to occur, and that such Holder has, or upon such occurrence will have, the right to require the Company to purchase such Holder’s Notes at a purchase price in cash equal to 101.0% of the principal amount of such Notes plus accrued and unpaid interest, if any, to the date of purchase (subject to the right of Holders of record on a Regular Record Date to receive interest on the relevant Interest Payment Date) (the “Change of Control Payment”). Within 30 days following any Change of Control, the Company shall mail a notice to each Holder at its registered address. The notice shall contain all instructions and materials necessary to enable such Holder to tender Notes pursuant to the Change of Control Offer. Any Change of Control Offer shall be made to all Holders. The notice, which shall govern the terms of the Change of Control Offer, shall state: (1) that the Change of Control Offer is being made pursuant to this Section 4.10; ;
(2) the Change of Control Payment and the repurchase date on (which Notes tendered and accepted for payment shall be purchased, which date shall be at least 30 no earlier than ten days and no nor later than 60 days from the date such notice is mailed delivered) (the “Change of Control Payment Date”); ;
(3) if such notice is delivered prior to the occurrence of a Change of Control, that any Note not tendered or accepted for payment shall continue to accrete or accrue interest; (4) that, unless the Company defaults in making such payment, any Note accepted for payment pursuant to the Change of Control Offer shall cease to accrete or accrue interest after the Change of Control Payment Date; (5) that Holders electing to have a Note purchased pursuant to any Change of Control Offer shall be required to surrender the Note, with the form entitled “Option of Holder to Elect Purchase” is conditional on the reverse of the Note completed, or transfer by book-entry transfer, to the Company, a depositary, if appointed by the Company, or the Paying Agent at the address specified in the notice at least three days before the Change of Control Payment Date; (6) that Holders shall be entitled to withdraw their election if the Company, the depositary or the Paying Agent, as the case may be, receives, not later than the Change of Control Payment Date, a notice setting forth the name of the Holder, the principal amount of the Note the Holder delivered for purchase and a statement that such Holder is withdrawing his election to have such Note purchased; (7) that Notes and portions of Notes purchased shall be in amounts of $1,000 or whole multiples of $1,000, except that if all of the Notes of a Holder are to be purchased, the entire outstanding amount of Notes held by such Holder, even if not a multiple of $1,000, shall be purchased; and (8) that Holders whose Notes were purchased only in part shall be issued new Notes equal in principal amount to the unpurchased portion of the Notes surrendered (or transferred by book-entry transfer), which unpurchased portion must be equal to $1,000 in principal amount or an integral multiple thereof. The Company shall comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws and regulations are applicable in connection with the repurchase of the Notes as a result occurrence of a Change of Control. To ; and
(4) the extent that procedures determined by the provisions of any securities laws or regulations conflict Company, consistent with the Change of Control provisions of this Indenture, the Company shall comply with the applicable securities laws and regulations and shall not be deemed that a Holder must follow in order to have breached its obligations under the Change of Control provisions of this Indenture by virtue of such conflictNotes repurchased. On the Change of Control Payment Date, the Company shall, to the extent lawful:
(1) accept for payment all Notes or portions thereof of Notes properly tendered and not withdrawn pursuant to the Change of Control Offer;
(2) deposit with the Paying Agent an amount equal to the Change of Control Payment in respect of all Notes or portions thereof so tenderedof Notes properly tendered and not withdrawn; and
(3) deliver or cause to be delivered to the Trustee for cancellation the Notes so accepted together with an Officers’ Officer’s Certificate stating the aggregate principal amount of Notes or portions thereof of Notes being purchased by the CompanyCompany in accordance with the terms of this covenant. The Paying Agent shall promptly mail deliver to each Holder of Notes so properly tendered and not withdrawn the Change of Control Payment for such Notes, and the Trustee shall will promptly authenticate and mail (or cause to be transferred by book entry) to each Holder a new Note equal in principal amount to any unpurchased portion of the Notes surrendered, if any; provided that each such new Note shall be , in a principal amount of $1,000 or an integral multiple thereof. The Company shall publicly announce the results of the Change of Control Offer on or as soon as practicable after accordance with Section 3.04(e).
(c) If the Change of Control Payment Date is on or after a Regular Record Date and on or before the related Interest Payment Date. The provisions set forth above that require the Company to make a Change of Control Offer following a Change of Control , any accrued and unpaid interest, if any, shall be applicable regardless of whether or not any other provisions of this Indenture are applicable. Notwithstanding anything paid on the relevant Interest Payment Date to the contrary Person in this Section 4.10, whose name a Note is registered at the close of business on such Regular Record Date.
(d) (i) 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 requirements set forth in this Section 4.10 Indenture applicable to a Change of Control Offer made by the Company and purchases all Notes validly properly tendered and not withdrawn under such Change of Control Offer; and (ii) the Company will not be required to make a Change of Control Offer if the Company has previously or concurrently exercised its right to redeem all of the Notes pursuant to Section 3.01 pursuant to a notice of redemption that is or has become unconditional.
(e) The Company or a third party may, at its option, redeem the Notes upon not less than ten nor more than 60 days’ notice, given not more than 30 days following the consummation of the Change of Control Offer, at a redemption price of 101.0% of the aggregate principal amount of the Notes redeemed, plus accrued and unpaid interest, if any, to, but excluding, the applicable redemption date (subject to the right of holders of record on the relevant record date to receive interest due on an interest payment date falling on or prior to such redemption date), in connection with the consummation of a Change of Control if at least 90.0% of the Notes outstanding prior to the Change of Control Payment Date are purchased pursuant to a Change of Control Offer with respect to such Change of Control.
(f) Notwithstanding anything to the contrary herein, a Change of Control Offer may be made in advance of a Change of Control, conditional upon such Change of Control.
Appears in 1 contract
Samples: Indenture (Maxar Technologies Inc.)
Offer to Repurchase Upon a Change of Control. If Upon the occurrence of a Change of Control occurs, unless the Company has exercised its right to redeem the Notes under Section 3.07Control, each Holder of Notes shall have the right to require the Company to repurchase all or any part (equal to $1,000 or an integral multiple thereof) of that Holder’s Notes 's Securities pursuant to a change the Change of control Control offer on the terms set forth in this Indenture (a “"Change of Control Offer”). In the Change of Control Offer, the Company shall ") at an offer a payment price in cash equal to 101% of the aggregate principal amount of Notes Securities repurchased plus accrued and unpaid interest and Liquidated Damagesinterest, if any, thereon, on the Securities repurchased to the date of purchase (the “"Change of Control Payment”"). Within 30 days following any Change of Control, the Company shall mail a notice to each Holder at its registered address. The notice shall contain all instructions and materials necessary to enable such Holder to tender Notes pursuant to stating:
(1) the transaction or transactions that constitute the Change of Control Offer. Any Change of Control Offer shall be made to all Holders. The notice, which shall govern the terms of the Change of Control Offer, shall state: Control;
(12) that the Change of Control Offer is being made pursuant to this Section 4.10; 1013 and that all Securities tendered shall be accepted for payment;
(23) the Change of Control Payment purchase price and the date on which Notes tendered and accepted for payment shall be purchasedpurchase date, which date shall be at least no earlier than 30 days and no later than 60 days from the date such the notice is mailed (the “"Change of Control Payment Date”"); ;
(34) that any Note Security not tendered or accepted for payment properly withdrawn shall continue to accrete or accrue interest; ;
(45) that, unless the Company defaults in making such paymentthe payment of the Change of Control Payment, any Note all Securities accepted - 70 - for payment pursuant to the Change of Control Offer shall cease to accrete or accrue interest after the Change of Control Payment Date; ;
(56) that Holders electing to have a Note any Securities purchased pursuant to any a Change of Control Offer shall be required to surrender the NoteSecurities, together with the such form entitled “Option of Holder to Elect Purchase” on the reverse of the Note completed, or transfer by book-entry transferforms as may be specified, to the Company, a depositary, if appointed by the Company, or the Paying Agent at the address specified in the notice at least three days before prior to the close of business on the third Business Day preceding the Change of Control Payment Date; ;
(67) that Holders shall be entitled to withdraw their election if the Company, the depositary or the Paying Agent, as the case may be, Agent receives, not later than the close of business on the second Business Day preceding the Change of Control Payment Date, a notice telegram, telex, facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Note the Holder Securities delivered for purchase purchase, and a statement that such Holder is withdrawing his its election to have such Note the Securities purchased; (7) that Notes and portions of Notes purchased shall be in amounts of $1,000 or whole multiples of $1,000, except that if all of the Notes of a Holder are to be purchased, the entire outstanding amount of Notes held by such Holder, even if not a multiple of $1,000, shall be purchased; and and
(8) that Holders whose Notes were Securities are being purchased only in part shall be issued new Notes Securities equal in principal amount to the unpurchased portion of the Notes surrendered (or transferred by book-entry transfer)Securities surrendered, which unpurchased portion must be equal to $1,000 in principal amount or an integral multiple thereof. The Company shall comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws and regulations are applicable in connection with the repurchase of the Notes as a result of a Change of Control. To the extent that the provisions of any securities laws or regulations conflict with the Change of Control provisions of this Indenture, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under the Change of Control provisions of this Indenture by virtue of such conflict. On the Change of Control Payment Date, the Company shall, to the extent lawful:
(1) accept for payment all Notes Securities or portions thereof of Securities validly tendered and not properly tendered withdrawn pursuant to the Change of Control Offer;
(2) deposit with the Paying Agent an amount equal to the Change of Control Payment in respect of all Notes Securities or portions thereof so tenderedof Securities properly tendered and not properly withdrawn pursuant to the Change of Control Offer; and
(3) deliver or cause to be delivered to the Trustee the Notes Securities so accepted together with an Officers’ ' Certificate stating the aggregate principal amount of Notes Securities or portions thereof of Securities being purchased by the Company. The Paying Agent shall promptly mail to each Holder of Notes so Securities validly tendered and not properly withdrawn the Change of Control Payment for such NotesSecurities, and the Trustee shall promptly authenticate and mail (or cause to be transferred by book entry) to each Holder a new Note Security equal in principal amount to any unpurchased portion of the Notes Securities surrendered, if any; provided that each such new Note shall Security will be in a principal amount of $1,000 or an integral multiple thereof. - 71 - The Company shall publicly announce the results of the Change of Control Offer on or as soon as practicable after the Change of Control Payment Date. The provisions set forth above that require the Company to make a Change of Control Offer following a Change of Control shall be applicable regardless of whether or not any other provisions of this Indenture are applicable. Notwithstanding anything to the contrary in this Section 4.10, 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 requirements set forth in this Section 4.10 Indenture applicable to a Change of Control Offer made by the Company and purchases all Notes Securities validly tendered and not properly withdrawn under such Change of Control Offer. The Company shall comply with the Requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent those laws and regulations are applicable in connection with the repurchase of the Securities as a result of a Change of Control. To the extent that the provisions of any securities laws or regulations conflict with the Change of Control provisions of this Indenture, the Company shall comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under this Section 1013 by virtue of such conflict.
Appears in 1 contract
Offer to Repurchase Upon a Change of Control. (a) If a Change of Control occurs, unless the Company has exercised its right to redeem the Notes under Section 3.07, each Holder of Notes shall will have the right to require the Company Issuer to repurchase all or any part (equal to $1,000 or an integral multiple thereof) of that Holder’s 's Notes pursuant to a change of control an offer on by the terms set forth in this Indenture Issuer (a “Change of Control Offer”). In the Change of Control Offer, the Company shall "CHANGE OF CONTROL OFFER") at an offer price (a payment "CHANGE OF CONTROL PAYMENT") in cash equal to 101% of the aggregate principal amount of Notes repurchased plus accrued and unpaid interest and Liquidated Damages, if any, thereon, to the date of purchase (purchase; PROVIDED, HOWEVER, that notwithstanding the “occurrence of a Change of Control Payment”)Control, the Issuer will not be obligated to offer to purchase or purchase the Notes pursuant to this Section 4.14 if, prior to the time that the Issuer would be required to offer to purchase the Notes as a result of such Change of Control, the Issuer has mailed the requisite irrevocable notice to redeem all the outstanding Notes pursuant to Section 3.03 and redeems all the Notes in accordance with such notice. Within 30 days following any Change of Control, the Company shall Issuer will mail a notice to each Holder at its registered address. The notice shall contain all instructions and materials necessary to enable such Holder to tender Notes pursuant to describing the transaction or transactions that constitute the Change of Control Offer. Any Change of Control Offer shall be made and offering to all Holders. The repurchase Notes on a date (the "CHANGE OF CONTROL PAYMENT DATE") specified in such notice, which shall govern the terms of the Change of Control Offer, shall state: (1) that the Change of Control Offer is being made pursuant to this Section 4.10; (2) the Change of Control Payment and the date on which Notes tendered and accepted for payment shall be purchased, which date shall be at least no earlier than 30 days and no later than 60 days from the date such notice is mailed (the “Change of Control Payment Date”); (3) that any Note not tendered or accepted for payment shall continue to accrete or accrue interest; (4) thatmailed, unless the Company defaults in making such payment, any Note accepted for payment pursuant to the Change of Control Offer shall cease to accrete or accrue interest after the Change of Control Payment Date; procedures described in Section 3.08.
(5b) that Holders electing to have a Note purchased pursuant to any Change of Control Offer shall be required to surrender the Note, with the form entitled “Option of Holder to Elect Purchase” on the reverse of the Note completed, or transfer by book-entry transfer, to the Company, a depositary, if appointed by the Company, or the Paying Agent at the address specified in the notice at least three days before the Change of Control Payment Date; (6) that Holders shall be entitled to withdraw their election if the Company, the depositary or the Paying Agent, as the case may be, receives, not later than the Change of Control Payment Date, a notice setting forth the name of the Holder, the principal amount of the Note the Holder delivered for purchase and a statement that such Holder is withdrawing his election to have such Note purchased; (7) that Notes and portions of Notes purchased shall be in amounts of $1,000 or whole multiples of $1,000, except that if all of the Notes of a Holder are to be purchased, the entire outstanding amount of Notes held by such Holder, even if not a multiple of $1,000, shall be purchased; and (8) that Holders whose Notes were purchased only in part shall be issued new Notes equal in principal amount to the unpurchased portion of the Notes surrendered (or transferred by book-entry transfer), which unpurchased portion must be equal to $1,000 in principal amount or an integral multiple thereof. The Company shall comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws and regulations are applicable in connection with the repurchase of the Notes as a result of a Change of Control. To the extent that the provisions of any securities laws or regulations conflict with the Change of Control provisions of this Indenture, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under the Change of Control provisions of this Indenture by virtue of such conflict. On the Change of Control Payment Date, the Company shallIssuer will, to the extent lawful:
(1i) accept for payment all Notes or portions thereof properly tendered pursuant to the Change of Control Offer;
(2ii) deposit with the Paying Agent an amount equal to the Change of Control Payment in respect of all Notes or portions thereof so tendered; and
(3iii) 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. Issuer.
(c) The Paying Agent shall will promptly mail to each Holder of Notes so tendered the Change of Control Payment for such Notes, and the Trustee shall will promptly authenticate and mail (or cause to be transferred by book entry) to each Holder a new Note equal in principal amount to any unpurchased portion of the Notes surrendered, if any; provided PROVIDED that each such new Note shall will be in a principal amount of $1,000 or an integral multiple thereof. .
(d) The Company shall Issuer will publicly announce the results of the Change of Control Offer on or as soon as practicable after the Change of Control Payment Date. The provisions set forth above that require the Company to make a Change of Control Offer following a Change of Control shall be applicable regardless of whether or not any other provisions of this Indenture are applicable. .
(e) Notwithstanding anything to the contrary in this Section 4.104.14, the Company shall Issuer will 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 requirements set forth in this Section 4.10 4.14 and all other provisions of this Indenture applicable to a Change of Control Offer made by the Issuer and purchases all Notes validly tendered and not withdrawn under such Change of Control Offer.
Appears in 1 contract
Samples: Indenture (Digitalnet Holdings Inc)
Offer to Repurchase Upon a Change of Control. (a) If a Change of Control occurs, unless the Company has exercised its right given (or if a Change of Control occurs prior to redeem March 15, 2016, within 60 days thereafter will have given) notice of redemption of all the Notes under pursuant to Section 3.07, each Holder of Notes shall will have the right to require that the Company to repurchase purchase all or any part (equal to in amounts of $2,000 or whole multiples of $1,000 or an integral multiple in excess thereof) of that such Holder’s Notes pursuant to a change of control the offer on the terms set forth described below in this Indenture Section 4.17 (a the “Change of Control Offer”). In the Change of Control Offer, the Company shall will offer to purchase all of the Notes, at a payment purchase price (the “Change of Control Purchase Price”) in cash in an amount equal to 101% of the aggregate principal amount of Notes repurchased such Notes, plus accrued and unpaid interest and Liquidated Damagesinterest, if any, thereon, to the date of purchase (the “Change of Control PaymentPurchase Date”), subject to the rights of Holders of record on relevant record dates to receive interest due on the relevant interest payment date. Any Change of Control Offer that is made prior to the occurrence of a Change of Control may at the Company’s discretion be subject to one or more conditions precedent, including the occurrence of a Change of Control.
(b) Within 30 days following after any Change of ControlControl or, at the Company’s option, prior to such Change of Control but after it is publicly announced , unless the Company has given (or if a Change of Control occurs prior to March 15, 2016, within 60 days thereafter will have given) notice of redemption of all the Notes pursuant to Section 3.07, the Company shall mail a notify the Trustee and give written notice of the Change of Control to each Holder, by first-class mail, postage prepaid, at the address appearing for such Holder at its registered addressin the Security Register (or, in the case of Global Notes, if such notice is given by the Trustee on behalf of the Company, sent in accordance with the applicable procedures of the Depositary). The notice (the “Change of Control Purchase Notice”) shall contain state, among other things:
(i) that a Change of Control has occurred or will occur, the date of such event and the circumstances and relevant facts regarding such Change of Control;
(ii) that any Notes (or any portion thereof) accepted for payment and duly paid on the Change of Control Purchase Date pursuant to the Change of Control Offer shall cease to accrue interest on the Change of Control Purchase Date;
(iii) that any Notes (or any portion thereof) not properly tendered will continue to accrue interest;
(iv) the Change of Control Purchase Price and the Change of Control Purchase Date, which shall be fixed by the Company on a Business Day no earlier than 30 days nor later than 60 days from the date the Change of Control Purchase Notice is mailed (or, in the case of Global Notes, sent), or such later date as is necessary to comply with requirements under the Exchange Act; provided that the Change of Control Purchase Date may not occur prior to the Change of Control;
(v) a description of the procedures that Holders are required to follow in order to tender their Notes and the procedures that Holders are required to follow in order to withdraw an election to tender their Notes for payment; and
(vi) all other instructions and materials necessary to enable such Holder Holders to tender Notes pursuant to the Change of Control Offer. Any If any of the Notes subject to a Change of Control Offer is in the form of a Global Note, then the Company shall modify such notice to the extent necessary to accord with the procedures of the Depositary applicable to repurchases.
(c) Upon receipt by the Company of the proper tender of Notes, the Holder of the Note in respect of which such proper tender was made shall (unless the tender of such Note is properly withdrawn at least one Business Day prior to the Change of Control Purchase Date) thereafter be made entitled to all Holdersreceive solely the Change of Control Purchase Price with respect to such Notes. The noticeNotes to be purchased shall, which on the Change of Control Purchase Date, become due and payable at the Change of Control Purchase Price, and from and after such date (unless the Company shall govern default in the terms payment of the Change of Control Offer, Purchase Price) such Notes shall state: (1) that cease to bear interest. Such Change of Control Purchase Price shall be paid to such Holder promptly following the later of the Change of Control Offer is being made pursuant Purchase Date and the time of delivery of such Note to this Section 4.10; (2) the relevant Paying Agent at the office of such Paying Agent by the Holder thereof in the manner required. Upon surrender of any such Note for purchase in accordance with the foregoing provisions, such Note shall be paid by the Company at the Change of Control Payment and the date Purchase Price; provided, however, that installments of interest whose Stated Maturity is on which Notes tendered and accepted for payment shall be purchased, which date shall be at least 30 days and no later than 60 days from the date such notice is mailed (the “Change of Control Payment Date”); (3) that any Note not tendered or accepted for payment shall continue to accrete or accrue interest; (4) that, unless the Company defaults in making such payment, any Note accepted for payment pursuant prior to the Change of Control Offer Purchase Date shall cease be payable to accrete or accrue the Holders of such Notes, registered as such as of the close of business on the relevant record dates according to the terms and the provisions of Section 307 of the Base Indenture. If any Note tendered for purchase in accordance with the provisions of this Section 4.17 shall not be so paid upon surrender thereof, the principal thereof (and premium, if any, thereon) shall, until paid, bear interest after from the Change of Control Payment Date; (5) that Purchase Date at the rate borne by such Note. Holders electing to have a Note Notes purchased pursuant to any Change of Control Offer shall will be required to surrender the Note, with the form entitled “Option of Holder such Notes to Elect Purchase” on the reverse of the Note completed, or transfer by book-entry transfer, to the Company, a depositary, if appointed by the Company, or the Paying Agent at the address specified in the notice at least three days before Change of Control Purchase Notice prior to the close of business on the third Business Day prior to the Change of Control Payment Purchase Date; (6) . Any Note that Holders is to be purchased only in part shall be entitled surrendered to withdraw their election a Paying Agent at the office of such Paying Agent (with, if the Company, the depositary Registrar or the Paying AgentTrustee so require, due endorsement by, or a written instrument of transfer in form satisfactory to the Company and the Registrar or the Trustee, as the case may be, receivesduly executed by, the Holder thereof or such Holder’s 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, one or more new Notes of any authorized denomination as requested by such Holder in an aggregate principal amount equal to, and in exchange for, the portion of the principal amount of the Note so surrendered that is not purchased. For all purposes of this Section 4.17, unless the context otherwise requires, all provisions relating to the purchase of Notes shall relate, in the case of any Notes purchased or to be purchased only in part, to the portion of the principal amount of such Notes which has been or is to be purchased. The Paying Agent (at the Company’s expense) shall promptly mail or deliver to the Holder thereof any Note or portion thereof not to be so purchased.
(d) The Company shall (i) not later than the Change of Control Payment Purchase Date, a notice setting forth the name of the Holder, the principal amount of the Note the Holder delivered for purchase and a statement that such Holder is withdrawing his election to have such Note purchased; (7) that Notes and portions of Notes purchased shall be in amounts of $1,000 or whole multiples of $1,000, except that if all of the Notes of a Holder are to be purchased, the entire outstanding amount of Notes held by such Holder, even if not a multiple of $1,000, shall be purchased; and (8) that Holders whose Notes were purchased only in part shall be issued new Notes equal in principal amount to the unpurchased portion of the Notes surrendered (or transferred by book-entry transfer), which unpurchased portion must be equal to $1,000 in principal amount or an integral multiple thereof. The Company shall comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws and regulations are applicable in connection with the repurchase of the Notes as a result of a Change of Control. To the extent that the provisions of any securities laws or regulations conflict with the Change of Control provisions of this Indenture, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under the Change of Control provisions of this Indenture by virtue of such conflict. On the Change of Control Payment Date, the Company shall, to the extent lawful:
(1) accept for payment all Notes or portions thereof properly tendered pursuant to the Change of Control Offer;
, (2ii) not later than 12:30 p.m. (New York City time) on the Change of Control Purchase Date, deposit with the Trustee or with a Paying Agent an amount equal of money in same day funds sufficient to pay the aggregate Change of Control Purchase Price of all the Notes or portions thereof that are to be purchased on that date and (iii) not later than 12:30 p.m. (New York City time) on the Change of Control Payment in respect of all Notes or portions thereof so tendered; and
(3) Purchase Date, deliver or cause to be delivered to the Trustee the Notes so accepted together with Paying Agent an Officers’ Certificate stating the aggregate principal amount of Notes or portions thereof being purchased accepted for payment by the Company. The Paying Agent shall promptly mail to each Holder of Notes so tendered the Change of Control Payment for such Notes, and the Trustee shall promptly authenticate and mail (or cause to be transferred by book entry) to each Holder a new Note equal in principal amount to any unpurchased portion of the Notes surrendered, if any; provided that each such new Note shall be in a principal amount of $1,000 or an integral multiple thereof. The Company shall publicly announce the results of the Change of Control Offer on or as soon as practicable after the Change of Control Payment Purchase Date. The provisions set forth above that require the Company .
(e) A tender made in response to make a Change of Control Offer following Purchase Notice may be withdrawn if the Company receives, not later than one Business Day prior to the Change of Control Purchase Date, a telegram, telex, facsimile transmission or letter, specifying, as applicable:
(1) the name of the Holder;
(2) the certificate number of the Note in respect of which such notice of withdrawal is being submitted;
(3) the principal amount of the Note (which shall be $2,000 or whole multiples of $1,000 in excess thereof) delivered for purchase by the Holder as to which such notice of withdrawal is being submitted;
(4) a statement that such Holder is withdrawing his election to have such principal amount of such Note purchased; and
(5) the principal amount, if any, of such Note (which shall be $2,000 or whole multiples of $1,000 in excess thereof) that remains subject to the original Change of Control Purchase Notice and that has been or will be delivered for purchase by the Company.
(f) The Company shall comply with the applicable tender offer rules, including the requirements of Rule 14e-1 under the Exchange Act, and any other applicable securities laws or regulations thereunder in connection with a Change of Control shall be applicable regardless of whether or not any other Offer. To the extent that the provisions of this Indenture are applicable. Notwithstanding anything any securities laws or regulations conflict with the provisions relating to the contrary Change of Control Offer in this Section 4.104.17, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under this Section 4.17 by virtue thereof.
(g) Notwithstanding the foregoing provisions of this Section 4.17, the Company will not be required to make a Change of Control Offer under the following circumstances: (1) upon a Change of Control Control, if a third party makes the Change of Control Offer in the manner, at the times and otherwise in compliance with the requirements set forth in this Section 4.10 Supplemental Indenture applicable to a Change of Control Offer made by the Company and purchases all Notes validly tendered and not withdrawn under such Change of Control Offer.; or
Appears in 1 contract
Offer to Repurchase Upon a Change of Control. (a) If a Change of Control occurs, unless the Company has exercised its right to redeem the Notes under Section 3.07, each Holder of Notes shall will have the right to require the Company to repurchase all or any part (equal to $1,000 or an integral multiple thereofof $1,000) of that Holder’s Notes pursuant to a change of control an offer on the terms set forth in this Indenture (a “Change of Control Offer”)) on the terms set forth in this Section 10.15. In the Change of Control Offer, the Company shall will offer a payment in cash (the “Change of Control Payment”) equal to not less than 101% of the aggregate principal amount of Notes repurchased plus accrued and unpaid interest and Liquidated Damages, if any, thereon, on the Notes repurchased to the date of purchase (the “Change of Control PaymentPayment Date”), subject to the rights of Holders of Notes on the relevant Record Date to receive interest due on the relevant Interest Payment Date. Within 30 thirty days following any Change of Control, the Company shall will mail a notice to each Holder at its registered address. The notice shall contain all instructions and materials necessary to enable such Holder to tender Notes pursuant to describing the transaction or transactions that constitute the Change of Control Offer. Any Change of Control Offer shall be made to all Holders. The notice, which shall govern the terms of the Change of Control Offer, shall state: and stating:
(1i) that the Change of Control Offer is being made pursuant to this Section 4.10; 10.15 and that all Notes tendered will be accepted for payment;
(2ii) the purchase price and the Change of Control Payment and the date on Date, which Notes tendered and accepted for payment shall be purchased, which date shall be at least no earlier than 30 days and no later than 60 days from the date such notice is mailed mailed;
(the “Change of Control Payment Date”); (3iii) that any Note not tendered or accepted for payment shall will continue to accrete or accrue interest; ;
(4iv) that, unless the Company defaults in making such paymentthe payment of the Change of Control Payment, any Note all Notes accepted for payment pursuant to the Change of Control Offer shall will cease to accrete or accrue interest after the Change of Control Payment Date; ;
(5v) that Holders electing to have a Note any Notes purchased pursuant to any a Change of Control Offer shall will be required to surrender the NoteNotes, with the form entitled “Option of Holder to Elect Purchase” on attached to the reverse of the Note Notes completed, or transfer by book-entry transfer, to the Company, a depositary, if appointed by the Company, or the Paying Agent at the address specified in the notice at least three days before prior to the close of business on the third Business Day preceding the Change of Control Payment Date; ;
(6vi) that Holders shall will be entitled to withdraw their election if the Company, the depositary or the Paying Agent, as the case may be, Agent receives, not later than the close of business on the second Business Day preceding the Change of Control Payment Date, a notice telegram, telex, facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Note the Holder Notes delivered for purchase purchase, and a statement that such Holder is withdrawing his election to have such Note the Notes purchased; and
(7vii) that Notes and portions of Notes purchased shall be in amounts of $1,000 or whole multiples of $1,000, except that if all of the Notes of a Holder are to be purchased, the entire outstanding amount of Notes held by such Holder, even if not a multiple of $1,000, shall be purchased; and (8) that Holders whose Notes were are being purchased only in part shall will be issued new Notes equal in principal amount to the unpurchased portion of the Notes surrendered (or transferred by book-entry transfer)surrendered, which unpurchased portion must be equal to $1,000 in principal amount or an integral multiple thereof. The Company shall will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such those laws and regulations are applicable in connection with the repurchase of the Notes as a result of a Change of Control. To the extent that the provisions of any securities laws or regulations conflict with the Change of Control provisions of this Indenture, the Company shall will comply with the applicable securities laws and regulations and shall will not be deemed to have breached its obligations under the Change of Control provisions of this Indenture by virtue of such conflict. compliance.
(b) On the Change of Control Payment Date, the Company shallwill, to the extent lawful:
(1i) accept for payment all Notes or portions thereof of Notes properly tendered pursuant to the Change of Control Offer;
(2ii) deposit with the Paying Agent an amount equal to the Change of Control Payment in respect of all Notes or portions thereof so of Notes properly tendered; and
(3iii) deliver or cause to be delivered to the Trustee the Notes so properly accepted together with an Officers’ Certificate stating the aggregate principal amount of Notes or portions thereof of Notes being purchased by the Company. .
(c) The Paying Agent shall will promptly mail or wire transfer to each Holder of Notes so properly tendered the Change of Control Payment for such NotesNotes (or, if all the Notes are then in global form, make such payment through the facilities of the Depositary), and the Trustee shall will promptly authenticate and mail (or cause to be transferred by book entry) to each Holder a new Note equal in principal amount to any unpurchased portion of the Notes surrendered, if any; provided that each such new Note shall will be in a principal amount of $2,000 and integral multiples of $1,000 or an integral multiple thereofin excess of $2,000. Any Note so accepted for payment will cease to accrue interest on and after the Change of Control Payment Date unless the Company defaults in making the Change of Control Payment.
(d) The Company shall will publicly announce the results of the Change of Control Offer on or as soon as practicable after the Change of Control Payment Date. The provisions set forth above that require the Company to make a Change of Control Offer following a Change of Control shall be applicable regardless of whether or not any other provisions of this Indenture are applicable. .
(e) Notwithstanding anything to the contrary in this Section 4.1010.15, the Company shall will not be required to make a Change of Control Offer upon a Change of Control if (i) a third party makes the Change of Control Offer in the manner, at the times and otherwise in compliance with the requirements set forth in this Section 4.10 Indenture applicable to a Change of Control Offer made by the Company and purchases all Notes validly properly tendered and not withdrawn under such the Change of Control Offer, or (ii) notice of redemption with respect to the Notes has been given pursuant to this Indenture, unless and until there is a Default in payment of the applicable Redemption Price.
(f) A Change of Control Offer may be made in advance of a Change of Control, and conditioned upon the occurrence of such Change of Control, if a definitive agreement is in place for the Change of Control at the time of making the Change of Control Offer. Notes repurchased by the Company pursuant to a Change of Control Offer will have the status of Notes issued but not Outstanding or will be retired and cancelled, at the Company’s option. Notes purchased by a third party pursuant to clause (e) of this Section 10.15 will have the status of Notes issued and Outstanding.
(g) In the event that Holders of at least 90% of the aggregate principal amount of the Outstanding Notes accept a Change of Control Offer and the Company purchases all of the Notes held by such Holders, the Company will have the right, upon not less than 30 nor more than 60 days’ prior notice, given not more than 30 days following a Change of Control Payment Date, to redeem all, but not less than all, of the Notes that remain Outstanding at a Redemption Price equal to the Change of Control Payment plus, to the extent not included in the Change of Control Payment, accrued and unpaid interest and Liquidated Damages, if any, on the Notes that remain Outstanding, to the date of redemption (subject to the right of Holders on the relevant record date to receive interest due on the relevant Interest Payment Date).
Appears in 1 contract
Samples: First Supplemental Indenture (Petroleum Development Corp)
Offer to Repurchase Upon a Change of Control. If a Change of Control occurs, unless the Company has exercised its right to redeem the Notes under Section 3.07, each Holder of Notes shall have the right to require the Company to repurchase all or any part (equal to $1,000 Euro1,000 or an integral multiple thereofof Euro1,000) of that Holder’s Notes 's Securities pursuant to a change the Change of control Control offer on the terms set forth in this Indenture (a “"Change of Control Offer”"). In the Change of Control Offer, the Company shall offer a payment Change of Control Payment in cash equal to 101% of the aggregate principal amount of Notes Securities repurchased plus accrued and unpaid interest and Liquidated Damagesliquidated damages, if any, thereon, on the Notes repurchased to the date of purchase (the “Change of Control Payment”)purchase. Within 30 days following any Change of Control, the Company shall mail a notice to each Holder at its registered address. The notice shall contain all instructions and materials necessary to enable such Holder to tender Notes pursuant to stating: (1) the transaction or transactions that constitute the Change of Control Offer. Any Change of Control Offer shall be made to all Holders. The notice, which shall govern the terms of the Change of Control Offer, shall state: Control; (12) that the Change of Control Offer is being made pursuant to this Section 4.105.9 and that all Securities tendered shall be accepted for payment; (23) the Change of Control Payment purchase price and the date on which Notes tendered and accepted for payment shall be purchasedpurchase date, which date shall be at least no earlier than 30 days and no later than 60 days from the date such the notice is mailed (the “"Change of Control Payment Date”"); (34) that any Note Security not tendered or accepted for payment shall continue to accrete or accrue interest; (45) that, unless the Company defaults in making such paymentthe payment of the Change of Control Payment, any Note all Securities accepted for payment pursuant to the Change of Control Offer shall cease to accrete or accrue interest after the Change of Control Payment Date; (5) that Holders electing to have a Note purchased pursuant to any Change of Control Offer shall be required to surrender the Note, with the form entitled “Option of Holder to Elect Purchase” on the reverse of the Note completed, or transfer by book-entry transfer, to the Company, a depositary, if appointed by the Company, or the Paying Agent at the address specified in the notice at least three days before the Change of Control Payment Date; (6) that Holders electing to have any Securities purchased pursuant to a Change of Control Offer shall be required to surrender the Securities, with the form entitled "Option of Holder to Elect Purchase" on the reverse of the Securities completed, to the Paying Agent at the address specified in the notice prior to the close of business on the third Business Day preceding the Change of Control Payment Date; (7) that Holders shall be entitled to withdraw their election if the Company, the depositary or the Paying Agent, as the case may be, Agent receives, not later than the close of business on the second Business Day preceding the Change of Control Payment Date, a notice telegram, telex, facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Note the Holder Securities delivered for purchase purchase, and a statement that such Holder is withdrawing his election to have such Note purchased; (7) that Notes and portions of Notes purchased shall be in amounts of $1,000 or whole multiples of $1,000, except that if all of the Notes of a Holder are to be purchased, the entire outstanding amount of Notes held by such Holder, even if not a multiple of $1,000, shall be Securities purchased; and (8) that Holders whose Notes were Securities are being purchased only in part shall be issued new Notes Securities equal in principal amount to the unpurchased portion of the Notes surrendered (or transferred by book-entry transfer)Securities surrendered, which unpurchased portion must be equal to $1,000 Euro1,000 in principal amount or an integral multiple thereof. The Company shall comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such those laws and regulations are applicable in connection with the repurchase of the Notes Securities as a result of a Change of Control. To the extent that the provisions of any securities laws or regulations conflict with the Change of Control provisions of this Indenture, the Company shall comply with the applicable securities laws and regulations and shall will not be deemed to have breached its obligations under the Change of Control provisions of this Indenture by virtue of such conflict. On the Change of Control Payment Date, the Company shall, to the extent lawful:
(1) accept for payment all Notes Securities or portions thereof of Securities properly tendered pursuant to the Change of Control Offeroffer;
(2) deposit with the Paying Agent paying agent an amount equal to the Change of Control Payment in respect of all Notes Securities or portions thereof so of Securities properly tendered; and
(3) deliver or cause to be delivered to the Trustee the Notes Securities so accepted together with an Officers’ ' Certificate stating the aggregate principal amount of Notes Securities or portions thereof of Securities being purchased by the Company. The Paying Agent shall promptly mail to each Holder of Notes so Securities properly tendered the Change of Control Payment for such NotesSecurities, and the Trustee shall promptly authenticate and mail (or cause to be transferred by book entry) to each Holder a new Note Security equal in principal amount to any unpurchased portion of the Notes Securities surrendered, if any; provided that each such new Note shall Security will be in a principal amount of $1,000 Euro1,000 or an integral multiple thereofof Euro1,000. The Company shall publicly announce the results of the Change of Control Offer on or as soon as practicable after the Change of Control Payment Date. The provisions set forth described above that require the Company to make a Change of Control Offer following a Change of Control shall will be applicable regardless of whether or not any other provisions of this Indenture are applicable. Notwithstanding anything Except as described above with respect to a Change of Control, this Indenture does not contain provisions that permit the contrary Holders of the Securities to require that the Company repurchase or redeem the Securities in this Section 4.10the event of a takeover, the recapitalization or similar transaction. 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 requirements set forth in this Section 4.10 Indenture applicable to a Change of Control Offer made by the Company and purchases all Notes validly Securities properly tendered and not withdrawn under such Change of Control Offer.
Appears in 1 contract
Samples: Euro Indenture (Trylon Corp/Mi/)
Offer to Repurchase Upon a Change of Control. If a Change of Control occurs, unless the Company has exercised its right to redeem the Notes under Section 3.07, each Holder of Notes shall have the right to require the Company to repurchase all or any part (equal to $1,000 €50,000 or an integral multiple of €1,000 in excess thereof) of that such Holder’s Notes pursuant to a change of control an offer on the terms set forth in this Indenture (a “Change of Control Offer”)) on the terms set forth in this Indenture. In the Change of Control Offer, the Company shall offer payment (a payment “Change of Control Payment”) in cash equal to 101% of the aggregate principal amount of Notes repurchased plus accrued and unpaid interest and Liquidated DamagesAdditional Interest, if any, thereon, to the date of purchase repurchase (the “Change of Control Payment”Payment Date,” which date shall be no earlier than the date of such Change of Control). Within No later than 30 days following any Change of ControlControl (or, at the Company’s option, prior to such Change of Control but after it is publicly announced if a definitive agreement is in effect for such Change of Control at the time of such announcement), the Company shall mail a notice to each Holder at its registered address. The notice shall contain all instructions and materials necessary to enable such Holder to tender Notes pursuant to describing the transaction or transactions that constitute the Change of Control Offer. Any Change of Control Offer shall be made and offering to all Holders. The notice, which shall govern the terms of the Change of Control Offer, shall state: (1) that the Change of Control Offer is being made pursuant to this Section 4.10; (2) repurchase Notes on the Change of Control Payment and the date on which Notes tendered and accepted for payment shall be purchasedDate specified in such notice, which date shall be at least no earlier than 30 days and no later than 60 days from the date such notice is mailed (mailed, pursuant to the “procedures required by Section 3.08 and this Section 4.14 and described in such notice. If the notice is sent prior to the occurrence of the Change of Control Payment Date”); (3) that any Note not tendered or accepted for payment shall continue to accrete or accrue interest; (4) thatControl, unless it may be conditioned upon the Company defaults in making such payment, any Note accepted for payment pursuant to consummation of the Change of Control Offer shall cease to accrete or accrue interest after if a definitive agreement is in effect for the Change of Control Payment Date; (5) that Holders electing to have a Note purchased pursuant to any at the time of the notice of such Change of Control Offer shall be required to surrender the Note, with the form entitled “Option of Holder to Elect Purchase” on the reverse of the Note completed, or transfer by book-entry transfer, to the Company, a depositary, if appointed by the Company, or the Paying Agent at the address specified in the notice at least three days before the Change of Control Payment Date; (6) that Holders shall be entitled to withdraw their election if the Company, the depositary or the Paying Agent, as the case may be, receives, not later than the Change of Control Payment Date, a notice setting forth the name of the Holder, the principal amount of the Note the Holder delivered for purchase and a statement that such Holder is withdrawing his election to have such Note purchased; (7) that Notes and portions of Notes purchased shall be in amounts of $1,000 or whole multiples of $1,000, except that if all of the Notes of a Holder are to be purchased, the entire outstanding amount of Notes held by such Holder, even if not a multiple of $1,000, shall be purchased; and (8) that Holders whose Notes were purchased only in part shall be issued new Notes equal in principal amount to the unpurchased portion of the Notes surrendered (or transferred by book-entry transfer), which unpurchased portion must be equal to $1,000 in principal amount or an integral multiple thereofControl. The Company shall will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws and regulations are applicable in connection with the repurchase of the Notes as a result of a Change of Control. To the extent that the provisions of any securities laws or regulations conflict with the Change of Control provisions of this Indenture, the Company shall will comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under the Change of Control provisions of this Indenture by virtue of such conflictcompliance. On the Change of Control Payment Date, the Company shall, to the extent lawful:
(1a) accept for payment all Notes or portions thereof properly tendered pursuant to the Change of Control Offer;
(2b) deposit with the Paying Agent an amount equal to the Change of Control Payment in respect of all Notes or portions thereof so tendered; and
(3c) 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. The Paying Agent shall promptly mail or wire transfer to each Holder of Notes so tendered the Change of Control Payment for such Notes, and the Trustee shall promptly authenticate and mail (or cause to be transferred by book entry) to each Holder a new Note equal in principal amount to any unpurchased portion of the Notes surrendered, if any; provided that each such new Note shall be in a principal amount of $1,000 €50,000 or an integral multiple of €1,000 in excess thereof. The Company shall publicly announce the results of the Change of Control Offer on or as soon as practicable after the Change of Control Payment Date. The provisions set forth described above that require the Company to make a Change of Control Offer following a Change of Control shall be applicable regardless of whether or not any other provisions of this Indenture are applicable. Notwithstanding anything to the contrary in this Section 4.10, the 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 requirements set forth in this Section 4.10 4.14 and Section 3.08 and purchases all Notes validly tendered and not withdrawn under such Change of Control Offer.
Appears in 1 contract
Samples: Indenture (Hexacomb CORP)
Offer to Repurchase Upon a Change of Control. If (a) Upon the occurrence of a Change of Control occurs, unless the Company has exercised its right to redeem the Notes under Section 3.07Control, each Holder of Notes shall have the right to require the Company to make an offer (a "Change of Control Offer") to that Holder to repurchase all or any part (equal to $1,000 or an integral multiple thereofof $1,000) of that Holder’s 's Notes pursuant to at a change of control offer on the terms set forth in this Indenture (a “Change of Control Offer”). In the Change of Control Offer, the Company shall offer a payment in cash purchase price equal to 101% of the aggregate principal amount of Notes repurchased thereof plus accrued and unpaid interest and Liquidated DamagesAdditional Interest on the Notes repurchased, if any, thereon, to the date of purchase (the “"Change of Control Payment”"). Within 30 days following any Change of Control, the Company shall mail a notice to each Holder at its registered address. The notice shall contain all instructions and materials necessary to enable such Holder to tender Notes pursuant to describing the transaction or transactions that constitute the Change of Control Offer. Any and stating:
(1) a description of the transaction or transactions that constitute a Change of Control Offer shall be made to all Holders. The notice, which shall govern the terms of the Change of Control Offer, shall state: (1) and that the Change of Control Offer is being made pursuant to this Section 4.10; 4.15 and that all Notes tendered will be accepted for payment;
(2) the Change of Control Payment purchase price and the date on purchase date, which Notes tendered and accepted for payment shall be purchased, which date shall be at least no earlier than 30 days and no not later than 60 days from the date such notice is mailed (the “"Change of Control Payment Date”"); ;
(3) that any Note not tendered or accepted for payment shall will continue to accrete or accrue interest; ;
(4) that, unless the Company defaults in making such paymentthe payment of the Change of Control Payment, any Note all Notes accepted for payment pursuant to the Change of Control Offer shall will cease to accrete or accrue interest after the Change of Control Payment Date; ;
(5) that Holders electing to have a Note any Notes purchased pursuant to any a Change of Control Offer shall will be required to surrender the NoteNotes, with the form entitled “"Option of Holder to Elect Purchase” " on the reverse of the Note Notes completed, or transfer by book-entry transfer, to the Company, a depositary, if appointed by the Company, or the Paying Agent at the address specified in the notice at least three days before prior to the close of business on the third Business Day preceding the Change of Control Payment Date; ;
(6) that Holders shall will be entitled to withdraw their election if the Company, the depositary or the Paying Agent, as the case may be, Agent receives, not later than the close of business on the second Business Day preceding the Change of Control Payment Date, a notice facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Note the Holder Notes delivered for purchase purchase, and a statement that such Holder is withdrawing his election to have such Note the Notes purchased; and
(7) that Notes and portions of Notes purchased shall be in amounts of $1,000 or whole multiples of $1,000, except that if all of the Notes of a Holder are to be purchased, the entire outstanding amount of Notes held by such Holder, even if not a multiple of $1,000, shall be purchased; and (8) that Holders whose Notes were are being purchased only in part shall will be issued new Notes equal in principal amount to the unpurchased portion of the Notes surrendered (or transferred by book-entry transfer)surrendered, which unpurchased portion must be equal to $1,000 in principal amount or an integral multiple thereof. The Company shall comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such those laws and regulations are applicable in connection with the repurchase of the Notes as a result of a Change of Control. To the extent that the provisions of any securities laws or regulations conflict with the Change of Control provisions of this IndentureSection 4.15, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under the Change of Control provisions of this Indenture Section 4.15 by virtue of such conflict. On the Change of Control Payment Date, the Company shall, to the extent lawful:
(1) accept for payment all Notes or portions thereof properly tendered pursuant to the Change of Control Offer;
(2) deposit with the Paying Agent an amount equal to the Change of Control Payment in respect of all Notes or portions thereof so tendered; and
(3) 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. The Paying Agent shall promptly mail to each Holder of Notes so tendered the Change of Control Payment for such Notes, and the Trustee shall promptly authenticate and mail (or cause to be transferred by book entry) to each Holder a new Note equal in principal amount to any unpurchased portion of the Notes surrendered, if any; provided that each such new Note shall be in a principal amount of $1,000 or an integral multiple thereof. The Company shall publicly announce the results of the Change of Control Offer on or as soon as practicable after the Change of Control Payment Date. The provisions set forth above that require the Company to make a Change of Control Offer following a Change of Control shall be applicable regardless of whether or not any other provisions of this Indenture are applicable. Notwithstanding anything to the contrary in this Section 4.10, 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 requirements set forth in this Section 4.10 and purchases all Notes validly tendered and not withdrawn under such Change of Control Offer.
Appears in 1 contract
Samples: Indenture (Neighborcare Inc)
Offer to Repurchase Upon a Change of Control. (a) If a Change of Control occurs, unless the Company has exercised its right to redeem the Notes under Section 3.07, each Holder of Notes shall will have the right to require that the Company to repurchase purchase all or any part (equal to in amounts of $1,000 or an integral multiple whole multiples of $1,000 in excess thereof) of that such Holder’s Notes pursuant to a change of control the offer on described below (the terms set forth in this Indenture (a “Change of Control Offer”). In the Change of Control Offer, the Company shall will offer to purchase all of the Notes, at a payment purchase price (the “Change of Control Purchase Price”) in cash in an amount equal to 101% of the aggregate principal amount of Notes repurchased such Notes, plus accrued and unpaid interest and Liquidated Damagesinterest, if any, thereon, to the date of purchase (the “Change of Control PaymentPurchase Date”). , subject to the rights of Holders of record on relevant record dates to receive interest due on an Interest Payment Date.
(b) Within 30 days following after any Change of ControlControl or, at the Company’s option, prior to such Change of Control but after it is publicly announced, the Company shall mail a must notify the Trustee and give written notice to each Holder at its registered address. The notice shall contain all instructions and materials necessary to enable such Holder to tender Notes pursuant to the Change of Control Offer. Any Change of Control Offer shall be made to all Holders. The notice, which shall govern the terms of the Change of Control Offer(the “Change of Control Purchase Notice”) to each Holder of Notes, shall by first-class mail, postage prepaid, at his address appearing in the security register. The Change of Control Purchase Notice must state: , among other things,
(1) that the a Change of Control Offer is being made pursuant to this Section 4.10; has occurred or will occur and the date of such event;
(2) the circumstances and relevant facts regarding such Change of Control;
(3) the Change of Control Payment Purchase Price and the date on Change of Control Purchase Date, which Notes tendered and accepted for payment shall be purchased, which date shall be at least fixed by the Company on a Business Day no earlier than 30 days and no nor later than 60 days from the date such the notice is mailed (mailed, or such later date as is necessary to comply with requirements under the “Exchange Act; provided that the Change of Control Payment Date”); Purchase Date may not occur prior to the Change of Control;
(34) that any Note not tendered or accepted for payment shall will continue to accrete or accrue interest; ;
(45) that, unless the Company defaults in making such paymentthe payment of the Change of Control Purchase Price, any Note Notes accepted for payment pursuant to the Change of Control Offer shall cease to accrete or accrue interest after the Change of Control Payment Purchase Date; and
(56) other procedures that a Holder of Notes must follow to accept a Change of Control Offer or to withdraw acceptance of the Change of Control Offer.
(c) Upon receipt by the Company of the proper tender of Notes, the Holder of the Note in respect of which such proper tender was made shall (unless the tender of such Note is properly withdrawn at least one Business Day prior to the Change of Control Purchase Date) thereafter be entitled to receive solely the Change of Control Purchase Price with respect to such Notes. Upon surrender of any such Note for purchase in accordance with the foregoing provisions, such Note shall be paid by the Company at the Change of Control Purchase Price; provided, however, that installments of interest whose Stated Maturity is on or prior to the Change of Control Purchase Date shall be payable to the Holders of such Notes, registered as such on the relevant record dates according to the terms and the provisions of Section 2.03. If any Note tendered for purchase in accordance with the provisions of this Section 4.19 shall not be so paid upon surrender thereof, the principal thereof (and premium, if any, thereon) shall, until paid, bear interest from the Change of Control Purchase Date at the rate borne by such Note. Holders electing to have a Note Notes purchased pursuant to any Change of Control Offer shall will be required to surrender the Note, with the form entitled “Option of Holder such Notes to Elect Purchase” on the reverse of the Note completed, or transfer by book-entry transfer, to the Company, a depositary, if appointed by the Company, or the Paying Agent at the address specified in the notice Change of Control Purchase Notice at least three days before one Business Day prior to the Change of Control Payment Purchase Date; (6) . Any Note that Holders is to be purchased only in part shall be entitled surrendered to withdraw their election a Paying Agent at the office of such Paying Agent (with, if the Company, the depositary Registrar or the Paying AgentTrustee so require, due endorsement by, or a written instrument of transfer in form satisfactory to the Company and the Registrar or the Trustee, as the case may be, receivesduly executed by, the Holder thereof or such Holder’s 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, one or more new Notes of any authorized denomination as requested by such Holder in an aggregate principal amount equal to, and in exchange for, the portion of the principal amount of the Note so surrendered that is not purchased.
(d) The Company shall (i) not later than the Change of Control Payment Purchase Date, a notice setting forth the name of the Holder, the principal amount of the Note the Holder delivered for purchase and a statement that such Holder is withdrawing his election to have such Note purchased; (7) that Notes and portions of Notes purchased shall be in amounts of $1,000 or whole multiples of $1,000, except that if all of the Notes of a Holder are to be purchased, the entire outstanding amount of Notes held by such Holder, even if not a multiple of $1,000, shall be purchased; and (8) that Holders whose Notes were purchased only in part shall be issued new Notes equal in principal amount to the unpurchased portion of the Notes surrendered (or transferred by book-entry transfer), which unpurchased portion must be equal to $1,000 in principal amount or an integral multiple thereof. The Company shall comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws and regulations are applicable in connection with the repurchase of the Notes as a result of a Change of Control. To the extent that the provisions of any securities laws or regulations conflict with the Change of Control provisions of this Indenture, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under the Change of Control provisions of this Indenture by virtue of such conflict. On the Change of Control Payment Date, the Company shall, to the extent lawful:
(1) accept for payment all Notes or portions thereof properly tendered pursuant to the Change of Control Offer;
, (2ii) not later than 1:00 p.m. (New York time) on the Business Day following the Change of Control Purchase Date, deposit with the Trustee or with a Paying Agent an amount equal of money in same day funds sufficient to pay the aggregate Change of Control Purchase Price of all the Notes or portions thereof which have been so accepted for payment and (iii) not later than 1:00 p.m. (New York time) on the Business Day following the Change of Control Payment in respect of all Notes or portions thereof so tendered; and
(3) Purchase Date, deliver or cause to be delivered to the Trustee the Notes so accepted together with Paying Agent an Officers’ Certificate stating the aggregate principal amount of Notes or portions thereof being purchased accepted for payment by the Company. The Paying Agent shall promptly mail or deliver to each Holder Holders of Notes so tendered accepted payment in an amount equal to the Change of Control Payment for Purchase Price of the Notes purchased from each such NotesHolder, and the Company shall execute and the Trustee shall promptly authenticate and mail (or cause deliver to be transferred by book entry) to each Holder such Holders a new Note equal in principal amount to any unpurchased portion of the Note surrendered. Any Notes surrendered, if any; provided that each such new Note not so accepted shall be in a principal amount of $1,000 promptly mailed or an integral multiple delivered by the Paying Agent at the Company’s expense to the Holder thereof. The Company shall will publicly announce the results of the Change of Control Offer on or as soon as practicable after the Change of Control Payment Purchase Date. The provisions set forth above that require For purposes of this Section 4.19, the Company shall choose a Paying Agent which shall not be the Company.
(e) A tender made in response to make a Change of Control Offer following a Change of Control shall Purchase Notice may be applicable regardless of whether or not any other provisions of this Indenture are applicable. Notwithstanding anything to the contrary in this Section 4.10, withdrawn if the Company shall receives, not be required later than one Business Day prior to make a Change of Control Offer upon a Change of Control if a third party makes the Change of Control Offer Purchase Date, a telegram, telex, facsimile transmission or letter, specifying, as applicable:
(1) the name of the Holder;
(2) the certificate number of the Note in respect of which such notice of withdrawal is being submitted;
(3) the mannerprincipal amount of the Note (which shall be $1,000 or whole multiples of $1,000 in excess thereof) delivered for purchase by the Company as to which such notice of withdrawal is being submitted;
(4) a statement that such Holder is withdrawing his election to have such principal amount of such Note purchased; and
(5) the principal amount, at if any, of such Note (which shall be $1,000 or whole multiples of $1,000 in excess thereof) that remains subject to the times and otherwise in compliance with the requirements set forth in this Section 4.10 and purchases all Notes validly tendered and not withdrawn under such original Change of Control OfferPurchase Notice and that has been or will be delivered for purchase by the Company.
Appears in 1 contract
Offer to Repurchase Upon a Change of Control. If a Change of Control occurs, unless the Company has exercised its right to redeem the Notes under Section 3.07, each Holder of Notes shall have the right to require the Company to repurchase all or any part (equal to $1,000 or 50,000 in the case of Dollar Notes and €50,000 in the case of Euro Notes or, in each case, an integral multiple thereofof $1,000 or €1,000 as applicable) of that Holder’s Notes pursuant to a change of control offer on the terms set forth in this Indenture (a “Change of Control Offer”). In the Change of Control Offer, the Company shall offer a payment in cash equal to 101% of the aggregate principal amount of Notes repurchased plus accrued and unpaid interest and Liquidated DamagesAdditional Interest, if any, thereon, to the date of purchase (the “Change of Control Payment”). Within 30 days following any Change of Control, the Company shall mail a notice to each Holder at its registered address. The notice shall contain all instructions and materials necessary to enable such Holder to tender Notes pursuant to the Change of Control Offer. Any Change of Control Offer shall be made to all Holders. The notice, which shall govern the terms of the Change of Control Offer, shall state: (1) that the Change of Control Offer is being made pursuant to this Section 4.10; (2) the Change of Control Payment and the date on which Notes tendered and accepted for payment shall be purchased, which date shall be at least 30 days and no later than 60 days from the date such notice is mailed (the “Change of Control Payment Date”); (3) that any Note not tendered or accepted for payment shall continue to accrete or accrue interest; (4) that, unless the Company defaults in making such payment, any Note accepted for payment pursuant to the Change of Control Offer shall cease to accrete or accrue interest after the Change of Control Payment Date; (5) that Holders electing to have a Note purchased pursuant to any Change of Control Offer shall be required to surrender the Note, with the form entitled “Option of Holder to Elect Purchase” on the reverse of the Note completed, or transfer by book-entry transfer, to the Company, a depositary, if appointed by the Company, or the Paying Agent at the address specified in the notice at least three days before the Change of Control Payment Date; (6) that Holders shall be entitled to withdraw their election if the Company, the depositary or the Paying Agent, as the case may be, receives, not later than the Change of Control Payment Date, a notice setting forth the name of the Holder, the principal amount of the Note the Holder delivered for purchase and a statement that such Holder is withdrawing his election to have such Note purchased; (7) that Notes and portions of Notes purchased shall be in amounts of $50,000 in the case of Dollar Notes and €50,000 in the case of Euro Notes or, in each case, an integral multiple of $1,000 or whole multiples of $1,000€1,000 in excess thereof, as applicable, except that if all of the Notes of a Holder are to be purchased, the entire outstanding amount of Notes held by such Holder, even if not a $50,000 in the case of Dollar Notes and €50,000 in the case of Euro Notes or, in each case, an integral multiple of $1,0001,000 or €1,000 in excess thereof, as applicable, shall be purchased; and (8) that Holders whose Notes were purchased only in part shall be issued new Notes equal in principal amount to the unpurchased portion of the Notes surrendered (or transferred by book-entry transfer), which unpurchased portion must be equal to $1,000 50,000 in principal amount or the case of Dollar Notes and €50,000 in the case of Euro Notes or, in each case, an integral multiple of $1,000 or €1,000 in excess thereof, as applicable. The Company shall comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws and regulations are applicable in connection with the repurchase of the Notes as a result of a Change of Control. To the extent that the provisions of any securities laws or regulations conflict with the Change of Control provisions of this Indenture, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under the Change of Control provisions of this Indenture by virtue of such conflict. On the Change of Control Payment Date, the Company shall, to the extent lawful:
(1) accept for payment all Notes or portions thereof properly tendered pursuant to the Change of Control Offer;
(2) deposit with the Paying Agent an amount equal to the Change of Control Payment in respect of all Notes or portions thereof so tendered; and
(3) 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. The Paying Agent shall promptly mail to each Holder of Notes so tendered the Change of Control Payment for such Notes, and the Trustee shall promptly authenticate and mail (or cause to be transferred by book entry) to each Holder a new Note equal in principal amount to any unpurchased portion of the Notes surrendered, if any; provided that each such new Note shall be in a principal amount of $1,000 50,000 or €50,000 or an integral multiple of $1,000 or €1,000, as applicable, in excess thereof. The Company shall publicly announce the results of the Change of Control Offer on or as soon as practicable after the Change of Control Payment Date. The provisions set forth above that require the Company to make a Change of Control Offer following a Change of Control shall be applicable regardless of whether or not any other provisions of this Indenture are applicable. Notwithstanding anything to the contrary in this Section 4.10, 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 requirements set forth in this Section 4.10 and purchases all Notes validly tendered and not withdrawn under such Change of Control Offer. If at any time of such Change of Control, the Notes are listed on the official list of the Irish Stock Exchange, to the extent required by the Irish Stock Exchange, the Company will notify the Irish Stock Exchange that a Change of Control has occurred and any relevant details relating to such Change of Control.
Appears in 1 contract
Samples: Indenture (Owens Illinois Group Inc)
Offer to Repurchase Upon a Change of Control. (a) If a Change of Control occurs, unless the Company has exercised its right to redeem the Notes under Section 3.07, each Holder of Notes shall have the right to require the Company to repurchase all or any part (equal to $1,000 or an integral multiple thereofof $1,000) of that Holder’s Notes Securities pursuant to a change the Change of control Control offer on the terms set forth in this Indenture (a “Change of Control Offer”). In the Change of Control Offer, the Company shall offer a payment Change of Control Payment in cash equal to 101% of the aggregate principal amount of Notes Securities repurchased plus accrued and unpaid interest and Liquidated Damages, if any, thereon, on the Securities repurchased to the date of purchase (the “Change of Control Payment”)purchase. Within 30 days following any Change of Control, the Company shall mail a notice to each Holder at its registered address. The notice shall contain all instructions and materials necessary to enable such Holder to tender Notes pursuant to stating:
(i) the transaction or transactions that constitute the Change of Control Offer. Any Change of Control Offer shall be made to all Holders. The notice, which shall govern the terms of the Change of Control Offer, shall state: and Ratings Event;
(1ii) that the Change of Control Offer is being made pursuant to this Section 4.10; 5.9 and that all Securities tendered shall be accepted for payment;
(2iii) the Change of Control Payment purchase price and the date on which Notes tendered and accepted for payment shall be purchasedpurchase date, which date shall be at least no earlier than 30 days and no later than 60 days from the date such the notice is mailed (the “Change of Control Payment Date”); ;
(3iv) that any Note Security not tendered or accepted for payment shall continue to accrete or accrue interest; ;
(4v) that, unless the Company defaults in making such paymentthe payment of the Change of Control Payment, any Note all Securities accepted for payment pursuant to the Change of Control Offer shall cease to accrete or accrue interest after the Change of Control Payment Date; ;
(5vi) that Holders electing to have a Note any Securities purchased pursuant to any a Change of Control Offer shall be required to surrender the NoteSecurities, with the form entitled “Option of Holder to Elect Purchase” on the reverse of the Note Securities completed, or transfer by book-entry transfer, to the Company, a depositary, if appointed by the Company, or the Paying Agent at the address specified in the notice at least three days before prior to the close of business on the third Business Day preceding the Change of Control Payment Date; (6vii) that Holders shall be entitled to withdraw their election if the Company, the depositary or the Paying Agent, as the case may be, Agent receives, not later than the close of business on the second Business Day preceding the Change of Control Payment Date, a notice telegram, telex, facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Note the Holder Securities delivered for purchase purchase, and a statement that such Holder is withdrawing his election to have such Note the Securities purchased; (7) that Notes and portions of Notes purchased shall be in amounts of $1,000 or whole multiples of $1,000, except that if all of the Notes of a Holder are to be purchased, the entire outstanding amount of Notes held by such Holder, even if not a multiple of $1,000, shall be purchased; and (8) that Holders whose Notes were purchased only in part shall be issued new Notes equal in principal amount to the unpurchased portion of the Notes surrendered (or transferred by book-entry transfer), which unpurchased portion must be equal to $1,000 in principal amount or an integral multiple thereof. The Company shall comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws and regulations are applicable in connection with the repurchase of the Notes as a result of a Change of Control. To the extent that the provisions of any securities laws or regulations conflict with the Change of Control provisions of this Indenture, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under the Change of Control provisions of this Indenture by virtue of such conflict. On the Change of Control Payment Date, the Company shall, to the extent lawful:
(1) accept for payment all Notes or portions thereof properly tendered pursuant to the Change of Control Offer;
(2) deposit with the Paying Agent an amount equal to the Change of Control Payment in respect of all Notes or portions thereof so tendered; and
(3) 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. The Paying Agent shall promptly mail to each Holder of Notes so tendered the Change of Control Payment for such Notes, and the Trustee shall promptly authenticate and mail (or cause to be transferred by book entry) to each Holder a new Note equal in principal amount to any unpurchased portion of the Notes surrendered, if any; provided that each such new Note shall be in a principal amount of $1,000 or an integral multiple thereof. The Company shall publicly announce the results of the Change of Control Offer on or as soon as practicable after the Change of Control Payment Date. The provisions set forth above that require the Company to make a Change of Control Offer following a Change of Control shall be applicable regardless of whether or not any other provisions of this Indenture are applicable. Notwithstanding anything to the contrary in this Section 4.10, 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 requirements set forth in this Section 4.10 and purchases all Notes validly tendered and not withdrawn under such Change of Control Offer.
Appears in 1 contract
Offer to Repurchase Upon a Change of Control. (a) If a Change of Control occurs, unless the Company has exercised its right Triggering Event occurs with respect to redeem the Notes under Section 3.07a series of Notes, each Holder of Notes shall of such series will have the right to require that the Company to repurchase purchase all or any part (equal to in amounts of $1,000 or an integral multiple whole multiples of $1,000 in excess thereof) of that such Holder’s Notes pursuant to a change of control the offer on described below (the terms set forth in this Indenture (a “Change of Control Offer”). In the Change of Control Offer, the Company shall will offer to purchase all of the Notes of such series, at a payment purchase price (the “Change of Control Purchase Price”) in cash in an amount equal to 101% of the aggregate principal amount of Notes repurchased such Notes, plus accrued and unpaid interest and Liquidated Damagesinterest, if any, thereon, to the date of purchase (the “Change of Control PaymentPurchase Date”). , subject to the rights of Holders of record of such series on relevant record dates to receive interest due on an Interest Payment Date.
(b) Within 30 days following after the date upon which any Change of ControlControl Triggering Event occurred with respect to a series of Notes or, at the Company’s option, prior to such Change of Control but after it is publicly announced, the Company shall mail a must notify the Trustee in writing and give written notice to each Holder at its registered address. The notice shall contain all instructions and materials necessary to enable such Holder to tender Notes pursuant to the Change of Control Offer. Any Change of Control Offer shall be made to all Holders. The notice, which shall govern the terms of the Change of Control OfferTriggering Event (the “Change of Control Purchase Notice”) to each Holder of Notes of such series, shall by first-class mail, postage prepaid, at his address appearing in the security register. The Change of Control Purchase Notice must state: , among other things:
(1) that the a Change of Control Offer is being made pursuant to this Section 4.10; Triggering Event has occurred or will occur and the date of such event;
(2) the circumstances and relevant facts regarding such Change of Control Triggering Event;
(3) the Change of Control Payment Purchase Price and the date on Change of Control Purchase Date, which Notes tendered and accepted for payment shall be purchased, which date shall be at least fixed by the Company on a Business Day no earlier than 30 days and no nor later than 60 days from the date such the notice is mailed (mailed, or such later date as is necessary to comply with requirements under the “Exchange Act; provided that the Change of Control Payment Date”); Purchase Date may not occur prior to the Change of Control Triggering Event;
(34) that any Note not tendered or accepted for payment shall will continue to accrete or accrue interest; ;
(45) that, unless the Company defaults in making such paymentthe payment of the Change of Control Purchase Price, any Note Notes accepted for payment pursuant to the Change of Control Offer shall cease to accrete or accrue interest after the Change of Control Payment Purchase Date; and
(56) other procedures that a Holder of Notes must follow to accept a Change of Control Offer or to withdraw acceptance of the Change of Control Offer.
(c) Upon receipt by the Company of the proper tender of Notes, the Holder of the Note in respect of which such proper tender was made shall (unless the tender of such Note is properly withdrawn at least one Business Day prior to the Change of Control Purchase Date) thereafter be entitled to receive solely the Change of Control Purchase Price with respect to such Notes. Upon surrender of any such Note for purchase in accordance with the foregoing provisions, such Note shall be paid by the Company at the Change of Control Purchase Price; provided, however, that installments of interest whose Stated Maturity is on or prior to the Change of Control Purchase Date shall be payable to the Holders of such Notes, registered as such on the relevant record dates according to the terms and the provisions of Section 2.03. If any Note tendered for purchase in accordance with the provisions of this Section 4.11 shall not be so paid upon surrender thereof, the principal thereof (and premium, if any, thereon) shall, until paid, bear interest from the Change of Control Purchase Date at the rate borne by such Note. Holders electing to have a Note Notes purchased pursuant to any Change of Control Offer shall will be required to surrender the Note, with the form entitled “Option of Holder such Notes to Elect Purchase” on the reverse of the Note completed, or transfer by book-entry transfer, to the Company, a depositary, if appointed by the Company, or the Paying Agent at the address specified in the notice Change of Control Purchase Notice at least three days before one Business Day prior to the Change of Control Payment Purchase Date; (6) . Any Note that Holders is to be purchased only in part shall be entitled surrendered to withdraw their election a Paying Agent at the office of such Paying Agent (with, if the Company, the depositary Registrar or the Paying AgentTrustee so require, due endorsement by, or a written instrument of transfer in form satisfactory to the Company and the Registrar or the Trustee, as the case may be, receivesduly executed by, the Holder thereof or such Holder’s 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, one or more new Notes of any authorized denomination as requested by such Holder in an aggregate principal amount equal to, and in exchange for, the portion of the principal amount of the Note so surrendered that is not purchased.
(d) The Company shall (i) not later than the Change of Control Payment Purchase Date, accept for payment Notes or portions thereof tendered pursuant to the Change of Control Offer, (ii) not later than 1:00 p.m. (New York time) on the Business Day following the Change of Control Purchase Date, deposit with the Trustee or with a Paying Agent an amount of money in same day funds sufficient to pay the aggregate Change of Control Purchase Price of all the Notes or portions thereof which have been so accepted for payment and (iii) not later than 1:00 p.m. (New York time) on the Business Day following the Change of Control Purchase Date, deliver to the Paying Agent an Officers’ Certificate stating the Notes or portions thereof accepted for payment by the Company. The Paying Agent shall promptly mail or deliver to Holders of Notes so accepted payment in an amount equal to the Change of Control Purchase Price of the Notes purchased from each such Holder, and the Company shall execute and the Trustee shall promptly authenticate and mail or deliver to such Holders a new Note equal in principal amount to any unpurchased portion of the Note surrendered. Any Notes not so accepted shall be promptly mailed or delivered by the Paying Agent at the Company’s expense to the Holder thereof. The Company will publicly announce the results of the Change of Control Offer on the Change of Control Purchase Date. For purposes of this Section 4.11, the Company shall choose a Paying Agent which shall not be the Company.
(e) A tender made in response to a Change of Control Purchase Notice may be withdrawn if the Company receives, not later than one Business Day prior to the Change of Control Purchase Date, a notice setting forth telegram, telex, facsimile transmission or letter, specifying, as applicable:
(1) the name of the Holder, ;
(2) the certificate number of the Note in respect of which such notice of withdrawal is being submitted;
(3) the principal amount of the Note the Holder (which shall be $1,000 or whole multiples of $1,000 in excess thereof) delivered for purchase and by the Company as to which such notice of withdrawal is being submitted;
(4) a statement that such Holder is withdrawing his election to have such principal amount of such Note purchased; and
(75) that Notes and portions the principal amount, if any, of Notes purchased such Note (which shall be in amounts of $1,000 or whole multiples of $1,0001,000 in excess thereof) that remains subject to the original Change of Control Purchase Notice and that has been or will be delivered for purchase by the Company.
(f) The Trustee and the Paying Agent shall return to the Company, except upon its request, any cash that remains unclaimed for two years after a Change of Control Purchase Date together with interest or dividends, if any, thereon (subject to Section 7.01(f)), held by them for the payment of the Change of Control Purchase Price; and the Holder of such tendered and accepted Note shall thereafter look only to the Company for payment thereof, and all liability of the Trustee or such Paying Agent with respect to such cash, and all liability of the Company as trustee thereof, shall thereupon cease; provided, however, that the Trustee or such Paying Agent, before being required to make any such repayment, shall at the expense of the Company cause to be published once in The New York Times and The Wall Street Journal (national edition) or send to each Holder entitled to such money notice that such money remains unclaimed and that, after a date specified therein, which shall not be less than 30 days from the date of such notification or publication, any unclaimed balance of such money then remaining shall be repaid to the Company; provided, further however, that (x) to the extent that the aggregate amount of cash deposited by the Company pursuant to clause (ii) of paragraph (d) of this Section 4.11 exceeds the aggregate Change of Control Purchase Price of the Notes of a Holder are or portions thereof to be purchased, then the entire outstanding amount of Notes held by Trustee shall hold such Holder, even if not a multiple of $1,000, shall be purchased; excess for the Company and (8) that Holders whose Notes were purchased only y) unless otherwise directed by the Company in part writing, promptly after the Business Day following the Change of Control Purchase Date the Trustee shall be issued new Notes equal in principal amount return any such excess to the unpurchased portion of the Notes surrendered Company together with interest, if any, thereon (or transferred by book-entry transfersubject to Section 7.01(f), which unpurchased portion must be equal to $1,000 in principal amount or an integral multiple thereof. ).
(g) The Company shall comply with the requirements of applicable tender offer rules, including Rule 14e-1 under the Exchange Act Act, and any other applicable securities laws and or regulations thereunder to the extent such laws and regulations are applicable in connection with the repurchase of the Notes as a result of a Change of ControlControl Offer. To the extent that the provisions of any securities laws or regulations conflict with the Change of Control provisions of this IndentureSection 4.11, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under the Change of Control provisions of this Indenture Section 4.11 by virtue of such conflict. On the Change of Control Payment Date, the Company shall, to the extent lawful:.
(1h) accept for payment all Notes or portions thereof properly tendered pursuant to Notwithstanding the Change of Control Offer;
(2) deposit with the Paying Agent an amount equal to the Change of Control Payment in respect of all Notes or portions thereof so tendered; and
(3) 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. The Paying Agent shall promptly mail to each Holder of Notes so tendered the Change of Control Payment for such Notes, and the Trustee shall promptly authenticate and mail (or cause to be transferred by book entry) to each Holder a new Note equal in principal amount to any unpurchased portion of the Notes surrendered, if any; provided that each such new Note shall be in a principal amount of $1,000 or an integral multiple thereof. The Company shall publicly announce the results of the Change of Control Offer on or as soon as practicable after the Change of Control Payment Date. The provisions set forth above that require the Company to make a Change of Control Offer following a Change of Control shall be applicable regardless of whether or not any other provisions of this Indenture are applicable. Notwithstanding anything to the contrary in this Section 4.10foregoing, the Company shall not be required to make a Change of Control Offer (i) upon a Change of Control Triggering Event if a third party makes the Change of Control Offer in the manner, at the times and otherwise in compliance with the requirements set forth in this Section 4.10 Indenture applicable to a Change of Control Offer made by the Company and purchases all Notes validly tendered and not withdrawn under such Change of Control OfferOffer or (ii) if notice of redemption for 100% of the aggregate principal amount of the outstanding Notes of the series in respect of which a Change of Control Triggering Event occurred has been given pursuant to Section 3.07, unless and until there is a default in payment of the applicable redemption price.
(i) In the event that Holders of not less than 90% of the aggregate principal amount of the outstanding Notes of a series accept a Change of Control Offer and the Company purchases all of the Notes of such series held by such Holders, the Company will have the right, upon not less than 30 nor more than 60 days’ prior notice, given not more than 30 days following the purchase pursuant to the Change of Control Offer described under this Section 4.11, to redeem all of the Notes of such series that remain outstanding following such purchase at a redemption price equal to 101% of the aggregate principal amount of Notes redeemed plus accrued and unpaid interest, if any, thereon to the date of redemption, subject to the right of the Holders of record on relevant record dates to receive interest due on an Interest Payment Date.
Appears in 1 contract
Offer to Repurchase Upon a Change of Control. (a) If a Change of Control occurs, unless the Company has previously or concurrently exercised its right to redeem all of the Notes under pursuant to Section 3.07, each Holder of Notes shall will have the right to require the Company to repurchase all or any part (equal to $1,000 2,000 or an integral multiple thereofof $1,000 in excess of $2,000) of that such Holder’s Notes pursuant to at a change of control offer on the terms set forth in this Indenture (a “Change of Control Offer”). In the Change of Control Offer, the Company shall offer a payment purchase price in cash equal to 101% of the aggregate principal amount of the Notes repurchased plus accrued and unpaid interest and Liquidated Damagesinterest, if any, thereon, to the date of purchase (subject to the right of Holders of record on the relevant record date to receive interest due on the relevant Interest Payment Date).
(b) Within 30 days following any Change of Control, unless the Company has previously or concurrently exercised its right to redeem all of the Notes pursuant to Section 3.07, the Company will mail a notice (the “Change of Control Offer”) to each Holder, with a copy to the Trustee, stating, among other things:
(1) that a Change of Control has occurred and that such Holder has the right to require the Company to purchase such Holder’s Notes at a purchase price in cash equal to 101% of the principal amount of such Notes plus accrued and unpaid interest, if any, to the date of purchase (subject to the right of Holders of record on a record date to receive interest on the relevant Interest Payment Date) (the “Change of Control Payment”). Within 30 days following any Change of Control, the Company shall mail a notice to each Holder at its registered address. The notice shall contain all instructions and materials necessary to enable such Holder to tender Notes pursuant to the Change of Control Offer. Any Change of Control Offer shall be made to all Holders. The notice, which shall govern the terms of the Change of Control Offer, shall state: (1) that the Change of Control Offer is being made pursuant to this Section 4.10; ;
(2) the Change of Control Payment and the repurchase date on (which Notes tendered and accepted for payment shall be purchased, which date shall be at least no earlier than 30 days and no nor later than 60 days from the date such notice is mailed mailed) (the “Change of Control Payment Date”); ;
(3) that any Note not properly tendered or accepted for payment shall will remain outstanding and continue to accrete or accrue interest; ;
(4) that, that unless the Company defaults in making such paymentthe payment of the Change of Control Payment, any Note all Notes accepted for payment pursuant to the Change of Control Offer shall will cease to accrete or accrue interest after on the Change of Control Payment Date; ;
(5) that Holders electing to have a Note any Notes in certificated form purchased pursuant to any a Change of Control Offer shall will be required to surrender the Notesuch Notes, with the form entitled “Option of Holder to Elect Purchase” on the reverse of the Note such Notes completed, or transfer by book-entry transfer, to the Company, a depositary, if appointed by paying agent specified in the Company, or the Paying Agent notice at the address specified in the notice at least three days before prior to the close of business on the Business Day preceding the Change of Control Payment Date; ;
(6) that Holders shall will be entitled to withdraw their tendered Notes and their election if to require the CompanyCompany to purchase such Notes, provided, that the depositary or the Paying Agent, as the case may be, paying agent receives, not later than the close of business on the Business Day preceding the Change of Control Payment Date, a notice setting forth telegram, telex, facsimile transmission or letter complying with the name requirements of the Holder, the principal amount of the Note the Holder delivered for purchase and a statement that such Holder is withdrawing his election to have such Note purchased; Section 4.15(f) below;
(7) that Notes and portions of Notes purchased shall be in amounts of $1,000 or whole multiples of $1,000, except that if all the Company is repurchasing a portion of the Notes Note of a Holder are to be purchasedany Holder, the entire outstanding amount of Notes held by such Holder, even if not a multiple of $1,000, shall be purchased; and (8) that Holders whose Notes were purchased only in part shall Holder will be issued a new Notes Note equal in principal amount to the unpurchased portion of the Notes surrendered (or transferred by book-entry transfer)Note surrendered, which provided, that the unpurchased portion of the Note must be equal to a minimum principal amount of $2,000 and an integral multiple of $1,000 in principal amount or an integral multiple thereof. The Company shall comply excess of $2,000; and
(8) other procedures determined by the Company, consistent with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws and regulations are applicable in connection with the repurchase of the Notes as a result of a Change of Control. To the extent that the provisions of any securities laws or regulations conflict with the Change of Control provisions of this Indenture, the Company shall comply with the applicable securities laws and regulations and shall not be deemed that a Holder must follow in order to have breached its obligations under the Change of Control provisions of this Indenture by virtue of such conflict. Notes repurchased.
(c) On the Change of Control Payment Date, the Company shall, to the extent lawfulwill:
(1) accept for payment all Notes or portions thereof of Notes (in a minimum principal amount of $2,000 and integral multiples of $1,000 in excess of $2,000) properly tendered pursuant to the Change of Control OfferOffer and not properly withdrawn;
(2) deposit with the Paying Agent paying agent an amount equal to the Change of Control Payment in respect of all Notes or portions thereof so tenderedof Notes accepted for payment, provided, however, that the funds once deposited are to be uninvested until disbursed pursuant to this Section 4.15; and
(3) 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 of Notes being purchased by the Company. .
(d) The Paying Agent shall paying agent will promptly mail or deliver to each Holder of Notes so tendered accepted for payment the Change of Control Payment for such Notes, and the Trustee shall will promptly authenticate and mail (or cause to be transferred by book entry) to each Holder a new Note equal in principal amount to any unpurchased portion of the Notes surrendered, if any; provided provided, that each such new Note shall will be in a minimum principal amount of $1,000 2,000 or an integral multiple thereof. The Company shall publicly announce the results of the Change $1,000 in excess of Control Offer on or as soon as practicable after $2,000.
(e) If the Change of Control Payment Date is on or after an interest record date and on or before the related Interest Payment Date. The provisions set forth above that require the Company to make a Change of Control Offer following a Change of Control shall , any accrued and unpaid interest, will be applicable regardless of whether or not any other provisions of this Indenture are applicable. Notwithstanding anything paid to the contrary Person in this Section 4.10, the Company shall not be required to make whose name a Change of Control Offer upon a Change of Control if a third party makes the Change of Control Offer in the manner, Note is registered at the times close of business on such record date, and otherwise in compliance with no further interest will be payable to Holders who tender pursuant to the requirements set forth in this Section 4.10 and purchases all Notes validly tendered and not withdrawn under such Change of Control Offer.
Appears in 1 contract
Samples: Indenture (Ultra Petroleum Corp)
Offer to Repurchase Upon a Change of Control. If (a) Upon the occurrence of a Change of Control occursTriggering Event, unless the Company has previously or concurrently exercised its right to redeem all of the Notes under pursuant to Section 3.073.01, each Holder of Notes shall have the right to require the Company to repurchase all or any part (equal to $1,000 or an integral multiple thereof) of that such Holder’s Notes pursuant to at a change of control offer on the terms set forth in this Indenture (a “Change of Control Offer”). In the Change of Control Offer, the Company shall offer a payment purchase price in cash equal to 101101.0% of the aggregate principal amount of the Notes repurchased plus accrued and unpaid interest and Liquidated Damagesinterest, if any, thereon, to the date of purchase (subject to the right of Holders of record on the relevant Regular Record Date to receive interest due on an Interest Payment Date falling on or prior to the date of purchase).
(b) Prior to or within 30 days following any Change of Control Triggering Event, unless the Company has previously or concurrently exercised its right to redeem all of the Notes pursuant to Section 3.01, the Company shall deliver a notice (the “Change of Control Offer”) to each Holder or otherwise give notice in accordance with the applicable procedures of the Depositary, with a copy to the Trustee, stating:
(1) that a Change of Control Triggering Event has occurred or, if the Change of Control Offer is being made in advance of a Change of Control Triggering Event, that a Change of Control Triggering Event is expected to occur, and that such Holder has, or upon such occurrence will have, the right to require the Company to purchase such Holder’s Notes at a purchase price in cash equal to 101.0% of the principal amount of such Notes plus accrued and unpaid interest, if any, to the date of purchase (subject to the right of Holders of record on a Regular Record Date to receive interest on the relevant Interest Payment Date) (the “Change of Control Payment”). Within 30 days following any Change of Control, the Company shall mail a notice to each Holder at its registered address. The notice shall contain all instructions and materials necessary to enable such Holder to tender Notes pursuant to the Change of Control Offer. Any Change of Control Offer shall be made to all Holders. The notice, which shall govern the terms of the Change of Control Offer, shall state: (1) that the Change of Control Offer is being made pursuant to this Section 4.10; ;
(2) the Change of Control Payment and the repurchase date on (which Notes tendered and accepted for payment shall be purchased, which date shall be at least 30 no earlier than ten days and no nor later than 60 days from the date such notice is mailed delivered) (the “Change of Control Payment Date”); ;
(3) if such notice is delivered prior to the occurrence of a Change of Control or Change of Control Triggering Event, that any Note not tendered or accepted for payment shall continue to accrete or accrue interest; (4) that, unless the Company defaults in making such payment, any Note accepted for payment pursuant to the Change of Control Offer shall cease to accrete or accrue interest after is conditional on the occurrence of a Change of Control Payment DateTriggering Event; and
(54) that Holders electing to have a Note purchased pursuant to any Change of Control Offer shall be required to surrender the Note, with the form entitled “Option of Holder to Elect Purchase” on the reverse of the Note completed, or transfer by book-entry transfer, to the Company, a depositary, if appointed procedures determined by the Company, or the Paying Agent at the address specified in the notice at least three days before the Change of Control Payment Date; (6) that Holders shall be entitled to withdraw their election if the Company, the depositary or the Paying Agent, as the case may be, receives, not later than the Change of Control Payment Date, a notice setting forth the name of the Holder, the principal amount of the Note the Holder delivered for purchase and a statement that such Holder is withdrawing his election to have such Note purchased; (7) that Notes and portions of Notes purchased shall be in amounts of $1,000 or whole multiples of $1,000, except that if all of the Notes of a Holder are to be purchased, the entire outstanding amount of Notes held by such Holder, even if not a multiple of $1,000, shall be purchased; and (8) that Holders whose Notes were purchased only in part shall be issued new Notes equal in principal amount to the unpurchased portion of the Notes surrendered (or transferred by book-entry transfer), which unpurchased portion must be equal to $1,000 in principal amount or an integral multiple thereof. The Company shall comply consistent with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws and regulations are applicable in connection with the repurchase of the Notes as a result of a Change of Control. To the extent that the provisions of any securities laws or regulations conflict with the Change of Control provisions of this Indenture, the Company shall comply with the applicable securities laws and regulations and shall not be deemed that a Holder must follow in order to have breached its obligations under the Change of Control provisions of this Indenture by virtue of such conflictNotes repurchased. On the Change of Control Payment Date, the Company shall, to the extent lawful:
(1) accept for payment all Notes or portions thereof of Notes properly tendered and not withdrawn pursuant to the Change of Control Offer;
(2) deposit with the applicable Paying Agent an amount equal to the Change of Control Payment in respect of all Notes or portions thereof so tenderedof Notes properly tendered and not withdrawn; and
(3) deliver or cause to be delivered to the Trustee for cancellation the Notes so accepted together with an Officers’ Certificate stating the aggregate principal amount of Notes or portions thereof of Notes being purchased by the CompanyCompany in accordance with the terms of this covenant. The applicable Paying Agent shall promptly mail deliver to each Holder of Notes so properly tendered and not withdrawn the Change of Control Payment for such Notes, and the Trustee shall will promptly authenticate and mail (or cause to be transferred by book entry) to each Holder a new Note equal in principal amount to any unpurchased portion of the Notes surrendered, if any; provided , in accordance with Section 3.04(e).
(c) Prior to making a Change of Control Payment, and as a condition to such payment (1) the requisite holders of each issue of Indebtedness issued under an indenture or other agreement that each may be violated by such new Note payment shall be in a principal amount have consented to such Change of $1,000 or an integral multiple thereof. The Company shall publicly announce Control Payment being made and waived the results event of default, if any, caused by the Change of Control Offer on or as soon as practicable after (2) the Company will repay all outstanding Indebtedness issued under an indenture or other agreement that may be violated by a Change of Control Payment or the Company must offer to repay all such Indebtedness, and make payment to the holders of such Indebtedness that accept such offer and obtain waivers of any event of default arising under the relevant indenture or other agreement from the remaining holders of such Indebtedness. The Company covenants to effect such repayment or obtain such consent prior to making a Change of Control Payment, it being a default of this Section 4.14 if the Company fails to comply with this Section 4.14(c).
(d) If the Change of Control Payment Date is on or after a Regular Record Date and on or before the related Interest Payment Date. The provisions set forth above that require the Company to make a Change of Control Offer following a Change of Control , any accrued and unpaid interest, if any, shall be applicable regardless of whether or not any other provisions of this Indenture are applicable. Notwithstanding anything paid on the relevant Interest Payment Date to the contrary Person in this Section 4.10, whose name a Note is registered at the close of business on such Regular Record Date.
(e) The Company shall not be required to make a Change of Control Offer upon a Change of Control Triggering Event if a third party makes the Change of Control Offer in the manner, at the times and otherwise in compliance with the requirements set forth in this Section 4.10 Indenture applicable to a Change of Control Offer made by the Company and purchases all Notes validly properly tendered and not withdrawn under such Change of Control Offer.
(f) The Company or a third party may, at its option, redeem the Notes upon not less than ten nor more than 60 days’ notice, given not more than 30 days following the consummation of the Change of Control Offer, at a redemption price of 101.0% of the aggregate principal amount of the Notes redeemed, plus accrued and unpaid interest, if any, to the applicable redemption date (subject to the right of holders of record on the relevant record date to receive interest due on an interest payment date falling on or prior to such redemption date), in connection with the consummation of a Change of Control if at least 90.0% of the Notes outstanding prior to the Change of Control Payment Date are purchased pursuant to a Change of Control Offer with respect to such Change of Control.
(g) Notwithstanding anything to the contrary herein, a Change of Control Offer may be made in advance of a Change of Control Triggering Event, conditional upon such Change of Control Triggering Event.
Appears in 1 contract
Samples: Indenture (Viasat Inc)
Offer to Repurchase Upon a Change of Control. If (a) Upon the occurrence of a Change of Control occurs, unless the Company has exercised its right to redeem the Notes under Section 3.07Control, each Holder of Notes shall have the right to require the Company to make an offer (a "Change of Control Offer") to that Holder to repurchase all or any part (equal to $1,000 or an integral multiple thereofof $1,000) of that Holder’s 's Notes pursuant to at a change of control offer on the terms set forth in this Indenture (a “Change of Control Offer”). In the Change of Control Offer, the Company shall offer a payment in cash purchase price equal to 101% of the aggregate principal amount of Notes repurchased thereof plus accrued and unpaid interest and Liquidated DamagesAdditional Interest on the Notes repurchased, if any, thereon, to the date of purchase (the “"Change of Control Payment”"). Within 30 days following any Change of Control, the Company shall mail a notice to each Holder at its registered address. The notice shall contain all instructions and materials necessary to enable such Holder to tender Notes pursuant to describing the transaction or transactions that constitute the Change of Control Offer. Any and stating:
(1) a description of the transaction or transactions that constitute a Change of Control Offer shall be made to all Holders. The notice, which shall govern the terms of the Change of Control Offer, shall state: (1) and that the Change of Control Offer is being made pursuant to this Section 4.10; 4.15 and that all Notes tendered will be accepted for payment;
(2) the Change of Control Payment purchase price and the date on purchase date, which Notes tendered and accepted for payment shall be purchased, which date shall be at least no earlier than 30 days and no not later than 60 days from the date such notice is mailed (the “"Change of Control Payment Date”"); ;
(3) that any Note not tendered or accepted for payment shall will continue to accrete or accrue interest; ;
(4) that, unless the Company defaults in making such paymentthe payment of the Change of Control Payment, any Note all Notes accepted for payment pursuant to the Change of Control Offer shall will cease to accrete or accrue interest after the Change of Control Payment Date; ;
(5) that Holders electing to have a Note any Notes purchased pursuant to any a Change of Control Offer shall will be required to surrender the NoteNotes, with the form entitled “"Option of Holder to Elect Purchase” " on the reverse of the Note Notes completed, or transfer by book-entry transfer, to the Company, a depositary, if appointed by the Company, or the Paying Agent at the address specified in the notice at least three days before prior to the close of business on the third Business Day preceding the Change of Control Payment Date; ;
(6) that Holders shall will be entitled to withdraw their election if the Company, the depositary or the Paying Agent, as the case may be, Agent receives, not later than the close of business on the second Business Day preceding the Change of Control Payment Date, a notice facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Note the Holder Notes delivered for purchase purchase, and a statement that such Holder is withdrawing his election to have such Note the Notes purchased; and
(7) that Notes and portions of Notes purchased shall be in amounts of $1,000 or whole multiples of $1,000, except that if all of the Notes of a Holder are to be purchased, the entire outstanding amount of Notes held by such Holder, even if not a multiple of $1,000, shall be purchased; and (8) that Holders whose Notes were are being purchased only in part shall will be issued new Notes equal in principal amount to the unpurchased portion of the Notes surrendered (or transferred by book-entry transfer)surrendered, which unpurchased portion must be equal to $1,000 in principal amount or an integral multiple thereof. The Company shall comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such those laws and regulations are applicable in connection with the repurchase of the Notes as a result of a Change of Control. To the extent that the provisions of any securities laws or regulations conflict with the Change of Control provisions of this IndentureSection 4.15, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under the Change of Control provisions of this Indenture Section 4.15 by virtue of such conflict. .
(b) On the Change of Control Payment Date, the Company shall, to the extent lawful:
(1) accept for payment all Notes or portions thereof properly tendered pursuant to the Change of Control Offer;
(2) deposit with the Paying Agent an amount equal to the Change of Control Payment in respect of all Notes or portions thereof so of Notes properly tendered; and
(3) deliver or cause to be delivered to the Trustee the Notes so properly accepted together with an Officers’ ' Certificate stating the aggregate principal amount of Notes or portions thereof of Notes being purchased by the Company. The Paying Agent shall promptly mail to each Holder of Notes so properly tendered the Change of Control Payment for such Notes, and the Trustee shall promptly authenticate and mail (or cause to be transferred by book entry) to each Holder of Notes properly tendered a new Note equal in principal amount to any unpurchased portion of the Notes surrendered, if any; provided that each such new Note shall be in a principal amount of $1,000 or an integral multiple thereof. Prior to complying with any of the provisions of this Section 4.15, but in any event within 90 days following a Change of Control, the Company shall either repay all outstanding Senior Debt or obtain the requisite consents, if any, under all agreements governing outstanding Senior Debt to permit the repurchase of Notes required by this covenant. The Company shall publicly announce the results of the Change of Control Offer on or as soon as practicable after the Change of Control Payment Date. The provisions set forth above that require the Company to make a Change of Control Offer following a Change of Control shall be applicable regardless of whether or not any other provisions of this Indenture are applicable. .
(c) Notwithstanding anything to the contrary in this Section 4.104.15, 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 requirements set forth in this Section 4.10 4.15 and purchases all Notes validly properly tendered and not withdrawn under such the Change of Control Offer.
(d) The provisions described in this Section 4.15 that require the Company to make a Change of Control Offer following a Change of Control shall be applicable whether or not any other provisions of this Indenture are applicable.
(e) Notwithstanding the foregoing, the Company shall not be required to make a Change of Control Offer, as provided above, if, in connection with or in contemplation of any Change of Control, it has made an offer to purchase (an "Alternate Offer") any and all Notes validly tendered at a cash price equal to or higher than the Change of Control Payment and has purchased all Notes properly tendered in accordance with the terms of such Alternate Offer.
Appears in 1 contract
Samples: Indenture (Genesis Healthcare Corp)
Offer to Repurchase Upon a Change of Control. If Following a Change of Control occurs(the date of each such occurrence being the "Change of Control Date"), unless the Company has exercised its right to redeem shall notify the holders of Convertible Notes under Section 3.07, each Holder in writing of Notes such occurrence and shall have make an offer (the right to require the Company to repurchase all or any part (equal to $1,000 or an integral multiple thereof) of that Holder’s Notes pursuant to a change of control offer on the terms set forth in this Indenture (a “"Change of Control Offer”). In the Change of Control Offer, the Company shall offer ") to repurchase all Convertible Notes then outstanding at a payment in cash repurchase price equal to 101100% of the aggregate principal amount thereof (the "Change of Notes repurchased Control Payment"), plus accrued and unpaid interest and Liquidated DamagesAdditional Interest, if any, thereonto, to the date of purchase (the “Change of Control Payment”). Within 30 days following any Change of Controlbut not including, the Company shall mail a notice to each Holder at its registered address. The notice shall contain all instructions and materials necessary to enable such Holder to tender Notes pursuant to the Change of Control OfferPayment Date. Any Notice of a Change of Control (the "Company Notice") shall be mailed by or at the direction of the Company through the Trustee to the holders of Convertible Notes as shown on the Register of such holders maintained by the Registrar not more than 30 days after the applicable Change of Control Date at the addresses as shown on the Register of holders maintained by the Registrar, with a copy to the Trustee and the Paying Agent. The Change of Control Offer shall remain open until a specified date (the "Change of Control Offer Termination Date") which is at least 20 business days from the date such notice is mailed. During the period specified in such notice, holders of Convertible Notes may elect to tender their Convertible Notes in whole or in part in integral multiples of $1,000. Payment shall be made by the Company in the manner elected by the Company pursuant to all HoldersSection 4.06(b) in respect of Convertible Notes properly tendered pursuant to this Section on a specified business day (the "Change of Control Payment Date") which shall be no earlier than five business days after the Change of Control Offer Termination Date and no later than 60 days after the Change of Control. The notice, which shall govern the terms of the Change of Control Offer, shall include such disclosures as are required by law and shall state: :
(1) that the a Change of Control Offer is being made pursuant to this Section 4.10; 4.06 and that all Convertible Notes will be accepted for payment;
(2) the event, transaction or transactions that constitute the Change of Control;
(3) the Change of Control Payment for each Convertible Note, the Change of Control Offer Termination Date and the date on which Notes tendered and accepted for payment shall be purchased, which date shall be at least 30 days and no later than 60 days from the date such notice is mailed (the “Change of Control Payment Date”;
(4) the manner of payment selected by the Company;
(5) if the Company elects to pay the Change of Control Payment, or a specified percentage thereof, in Common Shares, the information required by Section 4.06(d); , and that the conditions to such manner of payment set forth in Section 4.06(c) have been or will be complied with;
(36) that any Convertible Note not tendered or accepted for payment shall will continue to accrete or accrue interest; interest and Additional Interest, if applicable, in accordance with the terms thereof;
(47) that, unless the Company defaults in and the Guarantor default on making such paymentthe Change of Control Payment, any Convertible Note accepted for payment pursuant to the Change of Control Offer shall cease to accrete or accrue interest after and Additional Interest, if applicable, on the Change of Control Payment Date; Date and no further interest or Additional Interest shall accrue on or after such date;
(5) 8) that Holders holders electing to have a Note purchased Convertible Notes repurchased pursuant to any a Change of Control Offer shall will be required to surrender the Note, with the form entitled “Option of Holder their Convertible Notes to Elect Purchase” on the reverse of the Note completed, or transfer by book-entry transfer, to the Company, a depositary, if appointed by the Company, or the Paying Agent at the address specified in the notice at least three days before prior to 5:00 p.m., New York City time, on the Change of Control Payment Date; Offer Termination Date and must complete any form letter of transmittal proposed by the Company and acceptable to the Trustee and the Paying Agent (6a "Purchase Notice");
(9) that Holders shall holders of Convertible Notes will be entitled to withdraw their election if the Company, the depositary or the Paying Agent, as the case may be, Agent receives, not later than 5:00 p.m., New York City time, on the Change of Control Payment Offer Termination Date, a notice facsimile transmission or letter setting forth the name of the Holderholder, the principal amount of Convertible Notes the Note the Holder holder delivered for purchase repurchase, the Convertible Note certificate number (if any) and a statement that such Holder holder is withdrawing his election to have such Note Convertible Notes purchased; ;
(710) that holders whose Convertible Notes and portions of Notes purchased shall be in amounts of $1,000 or whole multiples of $1,000, except that if all of the Notes of a Holder are to be purchased, the entire outstanding amount of Notes held by such Holder, even if not a multiple of $1,000, shall be purchased; and (8) that Holders whose Notes were purchased repurchased only in part shall will be issued new Convertible Notes equal in principal amount to the unpurchased portion of the Convertible Notes surrendered surrendered;
(or transferred by book-entry transfer), which unpurchased portion 11) the instructions that holders must be equal follow in order to $1,000 tender their Convertible Notes; and
(12) that in principal amount or an integral multiple thereof. The Company shall comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws and regulations are applicable in connection with the repurchase of the Notes as a result case of a Change of Control. To Control Offer Termination Date that is also an Interest Payment Date, the extent that interest payment and Additional Interest, if any, due on such date shall be paid to the provisions person in whose name the Convertible Note is registered at the close of any securities laws or regulations conflict with business on the relevant Change of Control provisions of this Indenture, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under the Change of Control provisions of this Indenture by virtue of such conflictOffer Termination Date. On the Change of Control Payment Date, Offer Termination Date the Company shall, to the extent lawful:
, (1i) accept for payment all Convertible Notes or portions thereof properly tendered pursuant to the Change of Control Offer;
, (2ii) deposit with the Paying Agent Agent, at the Company's option, an amount equal in U.S. legal tender ("cash") or a number of Common Shares, or a combination thereof, sufficient to pay the Change of Control Payment in with respect of to all Convertible Notes or portions thereof so tendered; and
tendered and accepted, and an amount in cash equal to accrued and unpaid interest and Additional Interest, if any, and (3iii) deliver or cause to be delivered to the Trustee the Convertible Notes so accepted together with an Officers’ ' Certificate stating setting forth the aggregate principal amount of Convertible Notes or portions thereof being purchased tendered to and accepted for payment by the Company. The Paying Agent shall promptly mail to each Holder of Notes so tendered On the Change of Control Payment for such NotesDate, the Paying Agent shall mail or deliver to the holders of Convertible Notes so accepted, the Change of Control Payment, and the Trustee shall promptly authenticate and mail (or cause to be transferred by book entry) entry to each Holder such holders a new Convertible Note equal in principal amount to any unpurchased portion of the Notes Convertible Note surrendered, if any; provided that each such new Note shall Convertible Notes will be in a principal amount of $1,000 or an integral multiple thereof. The Any Convertible Notes not so accepted shall be promptly mailed or delivered by the Company shall publicly announce to the results holder thereof. In the case of any reclassification, change, amalgamation, consolidation, merger, combination or sale or conveyance to which Section 12.06 applies, in which the Common Shares of the Company are changed or exchanged as a result into the right to receive stock, securities or other property or assets (including cash) which includes common shares of the Company or another person, then the person formed by such amalgamation, or consolidation or resulting from such merger or which acquires such assets, as the case may be, shall execute and deliver to the Trustee a supplemental indenture (which shall comply with the TIA as in force at the date of execution of such supplemental indenture) modifying the provisions of this Indenture relating to the right of holders of Convertible Notes to cause the Company to repurchase Convertible Notes following a Change of Control, including the applicable provisions of this Section 4.06 and the definition of Change of Control, as determined in good faith by the Company (which determination shall be conclusive and binding), to make such provision apply to such common shares and the issuer thereof if different from the Company and Common Shares (in lieu of the Company and the Common Shares of the Company). Each Change of Control Offer on or as soon as practicable after the Change of Control Payment Date. The provisions set forth above that require shall be made by the Company in compliance with Rule 14e-4 and Rule 13e-4 and all other applicable provisions of the Exchange Act and, with respect to make a Change of Control Offer following a Change of Control shall be Canadian holders, Canadian securities laws, and all applicable regardless of whether or not tender offer rules promulgated thereunder and any other provisions of this Indenture are applicable. Notwithstanding anything applicable securities laws and regulations, to the contrary in this Section 4.10, extent such laws and regulations are then applicable and shall include all instructions and materials that the Company shall not be required reasonably deem necessary to make a Change enable such holders 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 requirements set forth in this Section 4.10 and purchases all Convertible Notes validly tendered and not withdrawn under such Change of Control Offerto tender their Convertible Notes.
Appears in 1 contract
Samples: Indenture (Nortel Networks Corp)
Offer to Repurchase Upon a Change of Control. If a Change of Control occurs, unless the Company has exercised its right to redeem all the Notes under Section 3.07, each Holder of Notes shall have the right to require the Company to repurchase all or any part (equal to $2,000 or integral multiples of $1,000 or an integral multiple in excess thereof) of that Holder’s Notes pursuant to a change of control offer on the terms set forth in this Indenture (a “Change of Control Offer”). In the Change of Control Offer, the Company shall offer a payment in cash equal to 101% of the aggregate principal amount of Notes repurchased plus accrued and unpaid interest and Liquidated Damages, if any, thereon, to the date of purchase (the “Change of Control Payment”). Within 30 days following any Change of ControlControl or, at the Company’s option, prior to the consummation of such Change of Control but after the public announcement thereof, the Company shall mail a notice to each Holder at its registered addressaddress (with a copy to the Trustee) describing the transaction or transactions that constitute the Change of Control and offering to repurchase Notes on the date specified in such notice. The notice shall contain all instructions and materials necessary to enable such Holder to tender Notes pursuant to the Change of Control Offer. Any Change of Control Offer shall be made to all Holders. The notice, which shall govern the terms of the Change of Control Offer, shall state: (1) that the Change of Control Offer is being made pursuant to this Section 4.104.08; (2) the Change of Control Payment and the date on which Notes tendered and accepted for payment shall be purchased, which date shall be at least no earlier than 30 days and no later than 60 days from the date such notice is mailed (other than as required by law) (the “Change of Control Payment Date”); (3) that any Note not tendered or accepted for payment shall continue to accrete or accrue interest; (4) that, unless the Company defaults in making such payment, any Note accepted for payment pursuant to the Change of Control Offer shall cease to accrete or accrue interest after the Change of Control Payment Date; (5) that Holders electing to have a Note purchased pursuant to any Change of Control Offer shall be required to surrender the Note, with the form entitled “Option of Holder to Elect Purchase” on the reverse of the Note completed, or transfer by book-entry transfer, to the Company, a depositary, if appointed by the Company, or the Paying Agent at the address specified in the notice at least three days before the Change of Control Payment Date; (6) that Holders shall be entitled to withdraw their election if the Company, the depositary or the Paying Agent, as the case may be, receives, not later than the Change of Control Payment Date, a notice setting forth the name of the Holder, the principal amount of the Note the Holder delivered for purchase and a statement that such Holder is withdrawing his election to have such Note purchased; (7) that Notes and portions of Notes purchased shall be in amounts equal to $2,000 or integral multiples of $1,000 or whole multiples of $1,000in excess thereof, except that if all of the Notes of a Holder are to be purchased, the entire outstanding amount of Notes held by such Holder, even if not a multiple of $1,000, shall be purchased; and (8) that Holders whose Notes were purchased only in part shall be issued new Notes equal in principal amount to the unpurchased portion of the Notes surrendered (or transferred by book-entry transfer), which unpurchased portion must be equal to $1,000 2,000 in principal amount or an integral multiple multiples of $1,000 in excess thereof. The Company shall comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws and regulations are applicable in connection with the repurchase of the Notes as a result of a Change of Control. To the extent that the provisions of any securities laws or regulations conflict with the Change of Control provisions of this Indenture, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under the Change of Control provisions of this Indenture by virtue of such conflict. On the Change of Control Payment Date, the Company shall, to the extent lawful:
(1) accept for payment all Notes or portions thereof properly tendered pursuant to the Change of Control Offer;
(2) deposit with the Paying Agent an amount equal to the Change of Control Payment in respect of all Notes or portions thereof so tendered; and
(3) 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. The Paying Agent shall promptly mail cause to be delivered to each Holder of Notes so tendered the Change of Control Payment for such Notes, and the Trustee shall promptly authenticate and mail (or cause to be transferred by book entry) to each Holder a new Note equal in principal amount to any unpurchased portion of the Notes surrendered, if any; provided that each such new Note shall be in a principal amount of equal to $1,000 2,000 or an integral multiple of $1,000 in excess thereof. The Company shall publicly announce the results of the Change of Control Offer on or as soon as practicable after the Change of Control Payment Date. The provisions set forth above that require the Company to make a Change of Control Offer following a Change of Control shall not be applicable regardless after a discharge of whether the Indenture pursuant to Section 8.01 or not any other provisions of this Indenture are applicabledefeasance from the Company’s legal obligations with respect to the Notes pursuant to Section 8.03 or Section 8.04. Notwithstanding anything to the contrary in this Section 4.104.08, 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 requirements set forth in this Section 4.10 4.08 and purchases all Notes validly tendered and not withdrawn under such Change of Control Offer. Notwithstanding anything to the contrary contained herein, a Change of Control Offer may be made in advance of a Change of Control, conditioned upon the consummation of such Change of Control, if a definitive agreement is in place providing for the Change of Control at the time the Change of Control Offer is made.
Appears in 1 contract
Samples: Indenture (Owens-Illinois Group Inc)
Offer to Repurchase Upon a Change of Control. (a) If a Change of Control occursTriggering Event occurs with respect to a series of Notes, unless the Company has previously or concurrently exercised its right to redeem all of the Notes under of that series pursuant to Section 3.07, each Holder of Notes shall of such series will have the right to require the Company to repurchase all or any part (equal to $1,000 2,000 or an integral multiple thereofof $1,000 in excess of $2,000) of that such Holder’s Notes pursuant to of that series at a change of control offer on the terms set forth in this Indenture (a “Change of Control Offer”). In the Change of Control Offer, the Company shall offer a payment purchase price in cash equal to 101% of the aggregate principal amount of the Notes repurchased of that series plus accrued and unpaid interest and Liquidated Damagesinterest, if any, thereonto, but not including, the date of purchase (subject to the right of Holders of record on the relevant record date to receive interest due on the relevant Interest Payment Date).
(b) Within 30 days following any Change of Control Triggering Event with respect to a series of Notes, unless the Company has previously or concurrently exercised its right to redeem all of the Notes of such series pursuant to Section 3.07, the Company shall mail a notice (the “Change of Control Offer”) to each Holder of Notes of such series, with a copy to the Trustee, stating, among other things:
(1) that a Change of Control Triggering Event has occurred with respect to such series of Notes and that such Holder has the right to require the Company to purchase such Holder’s Notes of such series at a purchase price in cash equal to 101% of the principal amount of such Notes plus accrued and unpaid interest, if any, to the date of purchase (subject to the right of Holders of record on the relevant record date to receive interest due on the relevant Interest Payment Date) (the “Change of Control Payment”). Within 30 days following any Change of Control, the Company shall mail a notice to each Holder at its registered address. The notice shall contain all instructions and materials necessary to enable such Holder to tender Notes pursuant to the Change of Control Offer. Any Change of Control Offer shall be made to all Holders. The notice, which shall govern the terms of the Change of Control Offer, shall state: (1) that the Change of Control Offer is being made pursuant to this Section 4.10; ;
(2) the Change of Control Payment and the repurchase date on (which Notes tendered and accepted for payment shall be purchased, which date shall be at least no earlier than 30 days and no nor later than 60 days from the date such notice is mailed mailed) (the “Change of Control Payment Date”); ;
(3) that any Note not properly tendered or accepted for payment shall will remain outstanding and continue to accrete or accrue interest; ;
(4) that, that unless the Company defaults in making such paymentthe payment of the Change of Control Payment, any Note all Notes accepted for payment pursuant to the Change of Control Offer shall will cease to accrete or accrue interest after on the Change of Control Payment Date; ;
(5) that Holders electing to have a Note any Notes in certificated form purchased pursuant to any a Change of Control Offer shall will be required to surrender the Notesuch Notes, with the form entitled “Option of Holder to Elect Purchase” on the reverse of the Note such Notes completed, or transfer by book-entry transfer, to the Company, a depositary, if appointed by the Company, or the Paying Agent specified in the notice at the address specified in the notice at least three days before prior to the close of business on the third Business Day preceding the Change of Control Payment Date; ;
(6) that Holders shall will be entitled to withdraw their tendered Notes and their election if to require the CompanyCompany to purchase such Notes, the depositary or provided, that the Paying Agent, as the case may be, Agent receives, not later than the close of business on the third Business Day preceding the Change of Control Payment Date, a notice setting forth facsimile transmission or letter complying with the name requirements of the Holder, the principal amount of the Note the Holder delivered for purchase and a statement that such Holder is withdrawing his election to have such Note purchased; Section 4.15(f) below;
(7) that Notes and portions of Notes purchased shall be in amounts of $1,000 or whole multiples of $1,000, except that if all the Company is repurchasing a portion of the Notes Note of a Holder are to be purchasedany Holder, the entire outstanding amount of Notes held by such Holder, even if not a multiple of $1,000, shall be purchased; and (8) that Holders whose Notes were purchased only in part shall Holder will be issued a new Notes Note of the same series equal in principal amount to the unpurchased portion of the Notes surrendered (or transferred by book-entry transfer)Note surrendered, which provided, that the unpurchased portion of the Note must be equal to a minimum principal amount of $2,000 and an integral multiple of $1,000 in principal amount or an integral multiple thereof. The Company shall comply excess of $2,000; and
(8) other procedures determined by the Company, consistent with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws and regulations are applicable in connection with the repurchase of the Notes as a result of a Change of Control. To the extent that the provisions of any securities laws or regulations conflict with the Change of Control provisions of this Indenture, the Company shall comply with the applicable securities laws and regulations and shall not be deemed that a Holder must follow to have breached its obligations under the Change of Control provisions of this Indenture by virtue of such conflict. Notes repurchased.
(c) On the Change of Control Payment Date, the Company shallwill, to the extent lawful:
(1) accept for payment all Notes of the relevant series or portions thereof (in a minimum principal amount of $2,000 and integral multiples of $1,000 in excess of $2,000) properly tendered pursuant to the Change of Control OfferOffer and not properly withdrawn;
(2) deposit with the Paying Agent paying agent an amount equal to the Change of Control Payment in respect of all Notes of the relevant series or portions thereof so tenderedaccepted for payment, provided, however, that the funds once deposited are to be uninvested until disbursed pursuant to this Section 4.15; and
(3) 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 of such series or portions thereof being purchased by the Company. .
(d) The Paying Agent shall will promptly mail or deliver to each Holder of Notes so tendered of the relevant series accepted for payment the Change of Control Payment for such Notes, and the Trustee shall will promptly authenticate and mail (or cause to be transferred by book entry) to each Holder a new Note of the same series equal in principal amount to any unpurchased portion of the Notes surrendered, if any; provided provided, that each such new Note shall will be in a minimum principal amount of $1,000 2,000 or an integral multiple thereof. The Company shall publicly announce the results of $1,000 in excess of $2,000.
(e) If the Change of Control Offer Payment Date is on or as soon as practicable after an interest record date and on or before the related Interest Payment Date, any accrued and unpaid interest, will be paid to the Person in whose name a Note is registered at the close of business on such record date, and no further interest will be payable to Holders who tender their Notes pursuant to the Change of Control Offer.
(f) A tender made in response to a Change of Control Offer may be withdrawn if the Company receives, not later than the third Business Day prior to the Change of Control Payment Date. The provisions set forth above that require , a telegram, telex, facsimile transmission or letter, specifying, as applicable: (1) the name of the Holder; (2) the certificate number of the Note in respect of which such notice of withdrawal is being submitted; (3) the principal amount of the Note (which shall be $2,000 or whole multiples of $1,000 in excess thereof) delivered for purchase by the Company as to make which such notice of withdrawal is being submitted; (4) a statement that such Holder is withdrawing such Holder’s election to have such principal amount of such Note purchased; and (5) the principal amount, if any, of such Note (which shall be $2,000 or whole multiples of $1,000 in excess thereof) that remains subject to the original Change of Control Offer and that has been or will be delivered for purchase by the Company.
(g) The Trustee and the Paying Agent shall return to the Company, upon its request, any cash that remains unclaimed for two years after a Change of Control Offer Payment Date together with interest or dividends, if any, thereon (subject to Section 7.01(f)), held by them for the payment of the Change of Control Payment; and the Holder of such tendered and accepted Note shall thereafter look only to the Company for payment thereof, and all liability of the Trustee or such Paying Agent with respect to such cash, and all liability of the Company as trustee thereof, shall thereupon cease; provided, however, that the Trustee or such Paying Agent, before being required to make any such repayment, shall at the expense of the Company comply with the SEC Regulation 17AD-17 as it applies to lost bondholders; provided, further however, that (x) to the extent that the aggregate amount of cash deposited by the Company pursuant to Section 4.15(c)(2) exceeds the aggregate Change of Control Payment of the Notes or portions thereof to be purchased, then the Trustee shall hold such excess for the Company and (y) unless otherwise directed by the Company in writing, promptly after the Business Day following the Change of Control Payment Date the Trustee shall return any such excess to the Company together with interest, if any, thereon (subject to Section 7.01(f)).
(h) The Company shall comply, to the extent applicable, with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws or regulations in connection with a Change of Control shall be applicable regardless of whether or not any other Offer. To the extent that the provisions of this Indenture are applicable. Notwithstanding anything to the contrary in any securities laws or regulations conflict with this Section 4.104.15, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under this Section 4.15 by virtue of such conflict.
(i) Notwithstanding the foregoing, the Company shall not be required to make a Change of Control Offer with respect to either series of Notes (i) upon a Change of Control Triggering Event if a third party makes the Change of Control Offer in the manner, at the times and otherwise in compliance with the requirements set forth in this Section 4.10 Indenture applicable to a Change of Control Offer made by the Company and purchases all Notes validly tendered and not withdrawn under such Change of Control Offer, or (ii) in connection with a transaction that would constitute a Change of Control, the Company or a third party has made an offer to purchase all Notes of such series properly tendered at a price higher than the Change of Control Payment and has purchased all Notes of such series properly tendered in such offer (an “Alternate Offer”).
(j) In the event that holders of not less than 90.0% of the aggregate principal amount of the outstanding Notes of either series accept a Change of Control Offer or Alternate Offer and the Company (or any third party making such Change of Control Offer or Alternate Offer in lieu of the Company pursuant to Section 4.15(i)) purchases all of the Notes of that series held by such Holders, the Company will have the right, upon not less than 10 nor more than 60 days’ prior notice, given not more than 30 days following the purchase pursuant to the Change of Control Offer or Alternate Offer described under this Section 4.15, to redeem all of the Notes of that series that remain outstanding following such purchase at a redemption price in cash equal to the Change of Control Payment or Alternate Offer price, as applicable, plus, to the extent not included in the Change of Control Payment or Alternate Offer price, accrued and unpaid interest on the Notes of such series that remain outstanding, to, but not including, the date of redemption (subject to the right of Holders of record on the relevant record date to receive interest due on an Interest Payment Date that is on or prior to the redemption date).
(k) A Change of Control Offer or Alternate Offer may be made in advance of a Change of Control Triggering Event, and conditioned upon the occurrence of a Change of Control Triggering Event, if a definitive agreement is in place for the Change of Control at the time the Change of Control Offer or Alternate Offer is made.
Appears in 1 contract
Samples: Indenture (SM Energy Co)
Offer to Repurchase Upon a Change of Control. If (a) Upon the occurrence of a Change of Control occurs, unless the Company has exercised its right to redeem the Notes under Section 3.07Control, each Holder of Notes shall have the right to require the Company to make an offer (a “Change of Control Offer”) to that Holder to repurchase all or any part (equal to $1,000 or an integral multiple thereofof $1,000) of that Holder’s Notes pursuant to at a change of control offer on the terms set forth in this Indenture (a “Change of Control Offer”). In the Change of Control Offer, the Company shall offer a payment in cash purchase price equal to 101% of the aggregate principal amount of Notes repurchased thereof plus accrued and unpaid interest and Liquidated DamagesDamages on the Notes repurchased, if any, thereon, to the date of purchase (the “Change of Control Payment”). Within 30 10 days following any Change of Control, the Company shall mail a notice to each Holder at its registered address. The notice shall contain all instructions and materials necessary to enable such Holder to tender Notes pursuant to describing the transaction or transactions that constitute the Change of Control Offer. Any and stating:
(1) a description of the transaction or transactions that constitute a Change of Control Offer shall be made to all Holders. The notice, which shall govern the terms of the Change of Control Offer, shall state: (1) and that the Change of Control Offer is being made pursuant to this Section 4.10; 4.15 and that all Notes tendered will be accepted for payment;
(2) the Change of Control Payment purchase price and the date on purchase date, which Notes tendered and accepted for payment shall be purchased, which date shall be at least no earlier than 30 days and no not later than 60 days from the date such notice is mailed (the “Change of Control Payment Date”); ;
(3) that any Note not tendered or accepted for payment shall will continue to accrete or accrue interest; ;
(4) that, unless the Company defaults in making such paymentthe payment of the Change of Control Payment, any Note all Notes accepted for payment pursuant to the Change of Control Offer shall will cease to accrete or accrue interest after the Change of Control Payment Date; ;
(5) that Holders electing to have a Note any Notes purchased pursuant to any a Change of Control Offer shall will be required to surrender the NoteNotes, with the form entitled “Option of Holder to Elect Purchase” on the reverse of the Note Notes completed, or transfer by book-entry transfer, to the Company, a depositary, if appointed by the Company, or the Paying Agent at the address specified in the notice at least three days before prior to the close of business on the third Business Day preceding the Change of Control Payment Date; ;
(6) that Holders shall will be entitled to withdraw their election if the Company, the depositary or the Paying Agent, as the case may be, Agent receives, not later than the close of business on the second Business Day preceding the Change of Control Payment Date, a notice facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Note the Holder Notes delivered for purchase purchase, and a statement that such Holder is withdrawing his election to have such Note the Notes purchased; and
(7) that Notes and portions of Notes purchased shall be in amounts of $1,000 or whole multiples of $1,000, except that if all of the Notes of a Holder are to be purchased, the entire outstanding amount of Notes held by such Holder, even if not a multiple of $1,000, shall be purchased; and (8) that Holders whose Notes were are being purchased only in part shall will be issued new Notes equal in principal amount to the unpurchased portion of the Notes surrendered (or transferred by book-entry transfer)surrendered, which unpurchased portion must be equal to $1,000 in principal amount or an integral multiple thereof. The Company shall comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such those laws and regulations are applicable in connection with the repurchase of the Notes as a result of a Change of in Control. To the extent that the provisions of any securities laws or regulations conflict with the Change provisions of Control provisions Section 4.15 of this Indenture, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under the Change of Control provisions of this Indenture Section 4.15 by virtue of such conflict. .
(b) On the Change of Control Payment Date, the Company shall, to the extent lawful:
(1) accept for payment all Notes or portions thereof properly tendered pursuant to the Change of Control Offer;
(2) deposit with the Paying Agent an amount equal to the Change of Control Payment in respect of all Notes or portions thereof so of Notes properly tendered; and
(3) deliver or cause to be delivered to the Trustee the Notes so properly accepted together with an Officers’ Certificate stating the aggregate principal amount of Notes or portions thereof of Notes being purchased by the Company. The Paying Agent shall promptly mail to each Holder of Notes so properly tendered the Change of Control Payment for such Notes, and the Trustee shall promptly authenticate and mail (or cause to be transferred by book entry) to each Holder of Notes properly tendered a new Note equal in principal amount to any unpurchased portion of the Notes surrendered, if any; provided that each such new Note shall be in a principal amount of $1,000 or an integral multiple thereof. Prior to complying with any of the provisions of this Section 4.15, but in any event within 90 days following a Change of Control, the Company shall either repay all outstanding Senior Debt or obtain the requisite consents, if any, under all agreements governing outstanding Senior Debt to permit the repurchase of Notes required by this covenant. The Company shall publicly announce the results of the Change of Control Offer on or as soon as practicable after the Change of Control Payment Date. The provisions set forth above that require the Company to make a Change of Control Offer following a Change of Control shall be applicable regardless of whether or not any other provisions of this Indenture are applicable. .
(c) Notwithstanding anything to the contrary in this Section 4.104.15, 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 requirements set forth in this Section 4.10 4.15 and purchases all Notes validly properly tendered and not withdrawn under such the Change of Control Offer.
(d) The provisions described in this Section 4.15 that require the Company to make a Change of Control Offer following a Change of Control shall be applicable whether or not any other provisions of this Indenture are applicable.
Appears in 1 contract
Samples: Indenture (Neomarkers Inc)
Offer to Repurchase Upon a Change of Control. (a) If a Change of Control occurs, unless the Company has exercised its right to redeem the Notes under Section 3.07, each Holder of Notes shall will have the right to require that the Company to repurchase purchase all or any part (equal to in amounts of $2,000 or whole multiples of $1,000 or an integral multiple in excess thereof) of that such Holder’s Notes pursuant to a change of control the offer on described below (the terms set forth in this Indenture (a “Change of Control Offer”). In the Change of Control Offer, the Company shall will offer to purchase all of the Notes, at a payment purchase price (the “Change of Control Purchase Price”) in cash in an amount equal to 101% of the aggregate principal amount of Notes repurchased such Notes, plus accrued and unpaid interest and Liquidated Damagesinterest, if any, thereon, to the date of purchase (the “Change of Control PaymentPurchase Date”)) subject to the rights of Holders of record on relevant record dates to receive interest due on an interest payment date. Any Change of Control Offer that is made prior to the occurrence of a Change of Control may at the Company’s discretion be subject to one or more conditions precedent, including the occurrence of a Change of Control.
(b) Within 30 days following after any Change of ControlControl or, at the Company’s option, prior to such Change of Control but after it is publicly announced, the Company shall mail a notify the Trustee and give written notice of the Change of Control to each Holder Holder, by first-class mail, postage prepaid, at its registered addresshis address appearing in the Security Register or otherwise in accordance with the procedures of DTC. The notice (the “Change of Control Purchase Notice)” shall contain state, among other things:
(i) that a Change of Control has occurred or will occur, the date of such event and the circumstances and relevant facts regarding such Change of Control;
(ii) that any Notes (or any portion thereof) accepted for payment (and duly paid on the Change of Control Purchase Date) pursuant to the Change of Control Offer shall cease to accrue interest on the Change of Control Purchase Date;
(iii) that any Notes (or any portion thereof) not properly tendered will continue to accrue interest;
(iv) the Change of Control Purchase Price and the Change of Control Purchase Date, which shall be, subject to any contrary requirements of applicable law, no less than 30 days nor more than 60 days after the date the notice is mailed; provided that the Change of Control Purchase Date may not occur prior to the Change of Control;
(v) a description of the procedures that Holders of Notes are required to follow in order to tender their Notes and the procedures that Holders of Notes are required to follow in order to withdraw an election to tender their Notes for payment; and
(vi) all other instructions and materials necessary to enable such Holder Holders to tender Notes pursuant to the Change of Control Offer. Any If any of the Notes subject to a Change of Control Offer is in the form of a Global Note, then the Company shall modify such notice to the extent necessary to accord with the procedures of the Depositary applicable to repurchases.
(c) Upon receipt by the Company of the proper tender of Notes, the Holder of the Note in respect of which such proper tender was made shall (unless the tender of such Note is properly withdrawn at least one Business Day prior to the Change of Control Purchase Date) thereafter be made entitled to all Holdersreceive solely the Change of Control Purchase Price with respect to such Notes. The noticeNotes to be purchased shall, which on the Change of Control Purchase Date, become due and payable at the Change of Control Purchase Price, and from and after such date (unless the Company shall govern default in the terms payment of the Change of Control Offer, Purchase Price) such Notes shall state: (1) that cease to bear interest. Such Change of Control Purchase Price shall be paid to such Holder promptly following the later of the Change of Control Offer is being made pursuant Purchase Date and the time of delivery of such Note to this Section 4.10; (2) the relevant Paying Agent at the office of such Paying Agent by the Holder thereof in the manner required. Upon surrender of any such Note for purchase in accordance with the foregoing provisions, such Note shall be paid by the Company at the Change of Control Payment and the date Purchase Price; provided, however, that installments of interest whose Stated Maturity is on which Notes tendered and accepted for payment shall be purchased, which date shall be at least 30 days and no later than 60 days from the date such notice is mailed (the “Change of Control Payment Date”); (3) that any Note not tendered or accepted for payment shall continue to accrete or accrue interest; (4) that, unless the Company defaults in making such payment, any Note accepted for payment pursuant prior to the Change of Control Offer Purchase Date shall cease be payable to accrete or accrue the Holders of such Notes, registered as such as of the close of business on the relevant record dates according to the terms and the provisions of Section 2.03. If any Note tendered for purchase in accordance with the provisions of this Section 4.17 shall not be so paid upon surrender thereof, the principal thereof (and premium, if any, thereon) shall, until paid, bear interest after from the Change of Control Payment Date; (5) that Purchase Date at the rate borne by such Note. Holders electing to have a Note Notes purchased pursuant to any Change of Control Offer shall will be required to surrender the Note, with the form entitled “Option of Holder such Notes to Elect Purchase” on the reverse of the Note completed, or transfer by book-entry transfer, to the Company, a depositary, if appointed by the Company, or the Paying Agent at the address specified in the notice at least three days before Change of Control Purchase Notice prior to the close of business on the third Business Day prior to the Change of Control Payment Purchase Date; (6) . Any Note that Holders is to be purchased only in part shall be entitled surrendered to withdraw their election a Paying Agent at the office of such Paying Agent (with, if the Company, the depositary Registrar or the Paying AgentTrustee so require, due endorsement by, or a written instrument of transfer in form satisfactory to the Company and the Registrar or the Trustee, as the case may be, receivesduly executed by, the Holder thereof or such Holder’s 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, one or more new Notes of any authorized denomination as requested by such Holder in an aggregate principal amount equal to, and in exchange for, the portion of the principal amount of the Note so surrendered that is not purchased. For all purposes of this Section 4.17, unless the context otherwise requires, all provisions relating to the purchase of Notes shall relate, in the case of any Notes purchased or to be purchased only in part, to the portion of the principal amount of such Notes which has been or is to be purchased. The Paying Agent (at the Company’s expense) shall promptly mail or deliver to the Holder thereof any Note or portion thereof not to be so purchased.
(d) The Company shall (i) not later than the Change of Control Payment Purchase Date, a notice setting forth the name of the Holder, the principal amount of the Note the Holder delivered for purchase and a statement that such Holder is withdrawing his election to have such Note purchased; (7) that Notes and portions of Notes purchased shall be in amounts of $1,000 or whole multiples of $1,000, except that if all of the Notes of a Holder are to be purchased, the entire outstanding amount of Notes held by such Holder, even if not a multiple of $1,000, shall be purchased; and (8) that Holders whose Notes were purchased only in part shall be issued new Notes equal in principal amount to the unpurchased portion of the Notes surrendered (or transferred by book-entry transfer), which unpurchased portion must be equal to $1,000 in principal amount or an integral multiple thereof. The Company shall comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws and regulations are applicable in connection with the repurchase of the Notes as a result of a Change of Control. To the extent that the provisions of any securities laws or regulations conflict with the Change of Control provisions of this Indenture, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under the Change of Control provisions of this Indenture by virtue of such conflict. On the Change of Control Payment Date, the Company shall, to the extent lawful:
(1) accept for payment all Notes or portions thereof properly tendered pursuant to the Change of Control Offer;
, (2ii) not later than 12:30 p.m. (New York City time) on the Change of Control Purchase Date, deposit with the Trustee or with a Paying Agent an amount equal of money in same day funds sufficient to pay the aggregate Change of Control Purchase Price of all the Notes or portions thereof that are to be purchased on that date and (iii) not later than 12:30 p.m. (New York City time) on the Change of Control Payment in respect of all Notes or portions thereof so tendered; and
(3) Purchase Date, deliver or cause to be delivered to the Trustee the Notes so accepted together with Paying Agent an Officers’ Certificate stating the aggregate principal amount of Notes or portions thereof being purchased accepted for payment by the Company. The Paying Agent shall promptly mail to each Holder of Notes so tendered the Change of Control Payment for such Notes, and the Trustee shall promptly authenticate and mail (or cause to be transferred by book entry) to each Holder a new Note equal in principal amount to any unpurchased portion of the Notes surrendered, if any; provided that each such new Note shall be in a principal amount of $1,000 or an integral multiple thereof. The Company shall publicly announce the results of the Change of Control Offer on or as soon as practicable after the Change of Control Payment Purchase Date. The provisions set forth above that require the Company .
(e) A tender made in response to make a Change of Control Offer following a Purchase Notice may be withdrawn if the Company receives, not later than one Business Day prior to the Change of Control Purchase Date, a telegram, telex, facsimile transmission or letter, specifying, as applicable:
(1) the name of the Holder;
(2) the certificate number of the Note in respect of which such notice of withdrawal is being submitted;
(3) the principal amount of the Note (which shall be applicable regardless $2,000 or whole multiples of whether $1,000 in excess thereof) delivered for purchase by the Holder as to which such notice of withdrawal is being submitted;
(4) a statement that such Holder is withdrawing his election to have such principal amount of such Note purchased; and
(5) the principal amount, if any, of such Note (which shall be $2,000 or not whole multiples of $1,000 in excess thereof) that remains subject to the original Change of Control Purchase Notice and that has been or will be delivered for purchase by the Company.
(f) The Company shall comply, to the extent applicable, with the requirements of Rule 14e-1 under the Exchange Act, and any other securities laws or regulations thereunder to the extent such laws and regulations are applicable in connection with the purchase of the Notes as described above. To the extent that the provisions of this Indenture are applicable. Notwithstanding anything any securities laws or regulations conflict with the provisions relating to the contrary in this Section 4.10Change of Control Offer, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under this Section 4.17 by virtue thereof.
(g) Notwithstanding the foregoing, the Company will not be required to make a Change of Control Offer (1) upon a Change of Control Control, if a third party makes the Change of Control Offer in the manner, at the times and otherwise in compliance with the requirements set forth in this Section 4.10 Indenture applicable to a Change of Control Offer made by the Company and purchases all Notes validly tendered and not withdrawn under such Change of Control OfferOffer or (2) if notice of redemption for 100% of the aggregate principal amount of the outstanding Notes has been given pursuant to this Indenture as described in Section 3.07, unless and until there is a default in payment of the applicable redemption price.
(h) In the event that upon consummation of a Change of Control Offer less than 10% of the aggregate principal amount of the Notes (including Additional Notes) that were originally issued are held by Holders other than the Company or Affiliates thereof, the Company will have the right, upon not less than 30 nor more than 60 days’ prior notice, given not more than 30 days following the purchase pursuant to the Change of Control Offer described above, to redeem all of the Notes that remain outstanding following such purchase at a redemption price equal to 101% of the aggregate principal amount of the Notes redeemed plus accrued and unpaid interest, if any, thereon to the date of redemption, subject to the right of the Holders of record on relevant record dates to receive interest due on an interest payment date.
Appears in 1 contract
Samples: Indenture (Laredo Petroleum, Inc.)
Offer to Repurchase Upon a Change of Control. If a Change of Control occurs, unless the Company has exercised its right to redeem the Notes under Section 3.07, each Holder of Notes shall have the right to require the Company to repurchase all or any part (equal to $1,000 €50,000 or an integral multiple of €1,000 in excess thereof) of that Holder’s Notes pursuant to a change of control offer on the terms set forth in this Indenture (a “Change of Control Offer”). In the Change of Control Offer, the Company shall offer a payment in cash equal to 101% of the aggregate principal amount of Notes repurchased plus accrued and unpaid interest and Liquidated Damages, if any, thereon, to the date of purchase (the “Change of Control Payment”). Within 30 days following any Change of Control, the Company shall mail a notice to each Holder at its registered address. The notice shall contain all instructions and materials necessary to enable such Holder to tender Notes pursuant to the Change of Control Offer. Any Change of Control Offer shall be made to all Holders. The notice, which shall govern the terms of the Change of Control Offer, shall state: (1) that the Change of Control Offer is being made pursuant to this Section 4.10; (2) the Change of Control Payment and the date on which Notes tendered and accepted for payment shall be purchased, which date shall be at least 30 days and no later than 60 days from the date such notice is mailed (the “Change of Control Payment Date”); (3) that any Note not tendered or accepted for payment shall continue to accrete or accrue interest; (4) that, unless the Company defaults in making such payment, any Note accepted for payment pursuant to the Change of Control Offer shall cease to accrete or accrue interest after the Change of Control Payment Date; (5) that Holders electing to have a Note purchased pursuant to any Change of Control Offer shall be required to surrender the Note, with the form entitled “Option of Holder to Elect Purchase” on the reverse of the Note completed, or transfer by book-entry transfer, to the Company, a depositary, if appointed by the Company, or the Paying Agent at the address specified in the notice at least three days before the Change of Control Payment Date; (6) that Holders shall be entitled to withdraw their election if the Company, the depositary or the Paying Agent, as the case may be, receives, not later than the Change of Control Payment Date, a notice setting forth the name of the Holder, the principal amount of the Note the Holder delivered for purchase and a statement that such Holder is withdrawing his election to have such Note purchased; (7) that Notes and portions of Notes purchased shall be in amounts of $€50,000 or an integral multiple of €1,000 or whole multiples of $1,000in excess thereof, except that if all of the Notes of a Holder are to be purchased, the entire outstanding amount of Notes held by such Holder, even if not a €50,000 or an integral multiple of $1,000€1,000 in excess thereof, shall be purchased; and (8) that Holders whose Notes were purchased only in part shall be issued new Notes equal in principal amount to the unpurchased portion of the Notes surrendered (or transferred by book-entry transfer), which unpurchased portion must be equal to $1,000 in principal amount €50,000 or an integral multiple of €1,000 in excess thereof. The Company shall comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws and regulations are applicable in connection with the repurchase of the Notes as a result of a Change of Control. To the extent that the provisions of any securities laws or regulations conflict with the Change of Control provisions of this Indenture, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under the Change of Control provisions of this Indenture by virtue of such conflict. On the Change of Control Payment Date, the Company shall, to the extent lawful:
(1) accept for payment all Notes or portions thereof properly tendered pursuant to the Change of Control Offer;
(2) deposit with the Paying Agent an amount equal to the Change of Control Payment in respect of all Notes or portions thereof so tendered; and
(3) 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. The Paying Agent shall promptly mail to each Holder of Notes so tendered the Change of Control Payment for such Notes, and the Trustee shall promptly authenticate and mail (or cause to be transferred by book entry) to each Holder a new Note equal in principal amount to any unpurchased portion of the Notes surrendered, if any; provided that each such new Note shall be in a principal amount of $1,000 €50,000 or an integral multiple of €1,000, in excess thereof. The Company shall publicly announce by press release the results of the Change of Control Offer on or as soon as practicable after the Change of Control Payment Date. The provisions set forth above that require the Company to make a Change of Control Offer following a Change of Control shall be applicable regardless of whether or not any other provisions of this Indenture are applicable. Notwithstanding anything to the contrary in this Section 4.10, 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 requirements set forth in this Section 4.10 and purchases all Notes validly tendered and not withdrawn under such Change of Control Offer. If at any time of such Change of Control, the Notes are listed on the official list of the Luxembourg Stock Exchange or such other securities exchange, to the extent required by the Luxembourg Stock Exchange or such other securities exchange, the Company will notify the Luxembourg Stock Exchange or such other securities exchange that a Change of Control has occurred and any relevant details relating to such Change of Control.
Appears in 1 contract
Samples: Indenture (Owens Illinois Group Inc)
Offer to Repurchase Upon a Change of Control. (a) If a Change of Control occurs, unless the Company has exercised its right to redeem the Notes under Section 3.07, each Holder of Notes shall will have the right to require the Company to repurchase all or any part (equal to $1,000 2,000 or an integral multiple thereofof $1 in excess of $2,000) of that Holder’s Notes pursuant to a change of control an offer on the terms set forth in this Indenture (a “Change of Control Offer”)) on the terms set forth in this Section. In the Change of Control Offer, the Company shall will offer a payment in cash (the “Change of Control Payment”) equal to 101% of the aggregate principal amount of Notes repurchased plus accrued and unpaid interest and Liquidated Damagesinterest, if any, thereon, on the Notes repurchased to the date of purchase (the “Change of Control PaymentPayment Date”), subject to the rights of Holders of Notes on the relevant Regular Record Date to receive interest due on the relevant Interest Payment Date. Within 30 days following any Change of Control, or, at the Company’s option, prior to such Change of Control but after it is publicly announced, the Company shall will deliver electronically, if held at DTC, or mail a notice to each Holder at its registered address. The notice shall contain all instructions and materials necessary to enable such Holder to tender Notes pursuant to describing the transaction or transactions that constitute the Change of Control Offer. Any Change of Control Offer shall be made to all Holders. The notice, which shall govern the terms of the Change of Control Offer, shall state: and stating:
(1i) that the Change of Control Offer is being made pursuant to this Section 4.10; 4.11 and that all Notes tendered will be accepted for payment;
(2ii) the purchase price and the Change of Control Payment and the date on Date, which Notes tendered and accepted for payment shall be purchased, which date shall be at least no earlier than 30 days and no later than 60 days from the date such notice is mailed or such later date as is necessary to comply with requirements under the Exchange Act;
(the “Change of Control Payment Date”); (3iii) that any Note not tendered or accepted for payment shall will continue to accrete or accrue interest; ;
(4iv) that, unless the Company defaults in making such paymentthe payment of the Change of Control Payment, any Note all Notes accepted for payment pursuant to the Change of Control Offer shall will cease to accrete or accrue interest after the Change of Control Payment Date; ;
(5v) that Holders electing to have a Note any Notes purchased pursuant to any a Change of Control Offer shall will be required to surrender the NoteNotes, with the form entitled “Option of Holder to Elect Purchase” on attached to the reverse of the Note Notes completed, or transfer the Notes by book-entry transfer, to the Company, a depositary, if appointed by the Company, or the Paying Agent at the address specified in the notice at least three days before prior to the close of business on the Business Day immediately preceding the Change of Control Payment Date; ;
(6vi) that Holders shall will be entitled to withdraw their election if the Company, the depositary or the Paying Agent, as the case may be, Agent receives, not later than the close of business on the Business Day immediately preceding the Change of Control Payment Date, a notice telegram, telex, facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Note the Holder Notes delivered for purchase purchase, and a statement that such Holder is withdrawing his election to have such Note purchased; (7) that Notes and portions of Notes purchased shall be in amounts of $1,000 all or whole multiples of $1,000, except that if all a portion of the Notes of a Holder are to be purchased, the entire outstanding amount of Notes held by such Holder, even if not a multiple of $1,000, shall be purchased; and and
(8) vii) that Holders whose Notes were are being purchased only in part shall will be issued new Notes equal in principal amount to the unpurchased portion of the Notes surrendered (or transferred by book-entry transfer), which unpurchased portion must be equal to $1,000 2,000 in principal amount or an integral multiple thereof. of $1 in excess of $2,000.
(b) The Company shall will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such those laws and regulations are applicable in connection with the repurchase of the Notes as a result of a Change of Control. To the extent that the provisions of any securities laws or regulations conflict with the Change of Control provisions of this Indenture, the Company shall will comply with the applicable securities laws and regulations and shall will not be deemed to have breached its obligations under the Change of Control provisions of this Indenture Section by virtue of such conflict. compliance.
(c) On the Change of Control Payment Date, the Company shallwill, to the extent lawful:
(1i) accept for payment all Notes or portions thereof of Notes properly tendered pursuant to the Change of Control Offer;
(2ii) deposit with the Paying Agent an amount equal to the Change of Control Payment in respect of all Notes or portions thereof so of Notes properly tendered; and
(3iii) deliver or cause to be delivered to the Trustee the Notes so properly accepted together with an Officers’ Certificate stating stating, the aggregate principal amount of Notes or portions thereof of Notes being purchased by the Company. .
(d) The Paying Agent shall will promptly mail or wire transfer to each Holder of Notes so properly tendered the Change of Control Payment for such NotesNotes (or, if all the Notes are then in global form, make such payment through the facilities of the Depositary), and the Trustee shall will promptly authenticate and mail (or cause to be transferred by book entry) to each Holder a new Note equal in principal amount to any unpurchased portion of the Notes surrendered, if any; provided that each such new Note shall issued by the Company will be in a principal amount of $1,000 2,000 or an integral multiple thereofof $1 in excess of $2,000. Any Note so accepted for payment will cease to accrue interest on and after the Change of Control Payment Date unless the Company defaults in making the Change of Control Payment.
(e) The Company shall will publicly announce the results of the Change of Control Offer on or as soon as practicable after the Change of Control Payment Date.
(f) Notwithstanding anything to the contrary in this Section, the Company will not be required to make a Change of Control Offer upon a Change of Control if (i) a third party makes the Change of Control Offer in the manner, at the price, at the times and otherwise in compliance with the requirements set forth in this Indenture applicable to a Change of Control Offer made by the Company and purchases all Notes properly tendered and not withdrawn under the Change of Control Offer, or (ii) the Company has given notice of redemption pursuant to Section 3.01 of this Indenture with respect to all outstanding Notes unless and until there is a Default in payment of the applicable redemption price.
(g) A Change of Control Offer may be made in advance of a Change of Control, and conditioned upon the occurrence of such Change of Control, if a definitive agreement is in place for the Change of Control at the time of making the Change of Control Offer. Notes repurchased by the Company pursuant to a Change of Control Offer will have the status of Notes issued but not outstanding or will be retired and cancelled, at the Company’s option. Notes purchased by a third party pursuant to clause (f) of this Section will have the status of Notes issued and outstanding.
(h) In the event that Holders of at least 90% of the aggregate principal amount of the outstanding Notes accept a Change of Control Offer and the Company (or any third party making such Change of Control Offer, in lieu of the Company, as described in paragraph (f) of this Section) purchases all of the Notes held by such Holders, the Company will have the right, upon not less than 30 nor more than 60 days’ prior notice, given not more than 30 days following a Change of Control Payment Date, to redeem all, but not less than all, of the Notes that remain outstanding at a redemption price equal to the Change of Control Payment plus, to the extent not included in the Change of Control Payment, accrued and unpaid interest, if any, on the Notes that remain outstanding, to the date of redemption (subject to the right of Holders on the relevant record date to receive interest due on the relevant Interest Payment Date).
(i) The provisions set forth above of this Section that require the Company to make a Change of Control Offer following a Change of Control shall will be applicable regardless of whether or not any other provisions of this Indenture are applicable. Notwithstanding anything to the contrary in this Section 4.10, 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 requirements set forth in this Section 4.10 and purchases all Notes validly tendered and not withdrawn under such Change of Control Offer.
Appears in 1 contract
Samples: Indenture (Rex Energy Corp)
Offer to Repurchase Upon a Change of Control. If (a) Upon the occurrence of a Change of Control occursControl, unless the Company has exercised its right shall make an offer (a "Change of Control Offer") to redeem the Notes under Section 3.07, each Holder of Notes shall have the right to require the Company to repurchase all or any part (equal to $1,000 2,000 or an integral multiple of $1,000 in excess thereof) of that each Holder’s 's Notes pursuant to at a change of control offer on the terms set forth in this Indenture (a “Change of Control Offer”). In the Change of Control Offer, the Company shall offer a payment in cash purchase price equal to 101% of the aggregate principal amount of Notes repurchased thereof plus accrued and unpaid interest and Liquidated Damages, if any, thereonon the Notes repurchased, to the date of purchase (the “"Change of Control Payment”"). Within 30 ten business days following any Change of Control, the Company shall mail a notice to each Holder at its registered address. The notice shall contain all instructions and materials necessary to enable such Holder to tender Notes pursuant to describing the transaction or transactions that constitute the Change of Control Offer. Any Change of Control Offer shall be made to all Holders. The notice, which shall govern the terms of the Change of Control Offer, shall state: and stating:
(1) that the Change of Control Offer is being made pursuant to this Section 4.10; 4.16 and that all Notes tendered will be accepted for payment;
(2) the Change of Control Payment purchase price and the date on purchase date, which Notes tendered and accepted for payment shall be purchased, which date shall be at least no earlier than 30 days and no later than 60 business days from the date such notice is mailed (the “"Change of Control Payment Date”"); ;
(3) that any Note not tendered or accepted for payment shall will continue to accrete or accrue interest; ;
(4) that, unless the Company defaults in making such paymentthe payment of the Change of Control Payment, any Note all Notes accepted for payment pursuant to the Change of Control Offer shall will cease to accrete or accrue interest after the Change of Control Payment Date; ;
(5) that Holders electing to have a Note any Notes purchased pursuant to any a Change of Control Offer shall will be required to surrender the NoteNotes, with the form entitled “"Option of Holder to Elect Purchase” " on the reverse of the Note Notes completed, or transfer by book-entry transfer, to the Company, a depositary, if appointed by the Company, or the Paying Agent at the address specified in the notice at least three days before prior to the close of business on the third Business Day preceding the Change of Control Payment Date; ;
(6) that Holders shall will be entitled to withdraw their election if the Company, the depositary or the Paying Agent, as the case may be, Agent receives, not later than the close of business on the second Business Day preceding the Change of Control Payment Date, a notice telegram, telex, facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Note the Holder Notes delivered for purchase purchase, and a statement that such Holder is withdrawing his election to have such Note the Notes purchased; and
(7) that Notes and portions of Notes purchased shall be in amounts of $1,000 or whole multiples of $1,000, except that if all of the Notes of a Holder are to be purchased, the entire outstanding amount of Notes held by such Holder, even if not a multiple of $1,000, shall be purchased; and (8) that Holders whose Notes were are being purchased only in part shall will be issued new Notes equal in principal amount to the unpurchased portion of the Notes surrendered (or transferred by book-entry transfer)surrendered, which unpurchased portion must be equal to $1,000 2,000 in principal amount or an integral multiple of $1,000 in excess thereof. The Company shall comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such those laws and regulations are applicable in connection with the repurchase of the Notes as a result of a Change of in Control. To the extent that the provisions of any securities laws or regulations conflict with the Change provisions of Control provisions Sections 3.09, 4.11 or 4.16 of this Indenture, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under the Change of Control provisions of Section 3.09, 4.11 or this Indenture Section 4.16 by virtue of such conflict. .
(b) On the Change of Control Payment Date, the Company shall, to the extent lawful:
(1) accept for payment all Notes or portions thereof of Notes properly tendered pursuant to the Change of Control Offer;
(2) deposit with the Paying Agent paying agent an amount equal to the Change of Control Payment in respect of all Notes or portions thereof so of Notes properly tendered; and
(3) deliver or cause to be delivered to the Trustee the Notes so properly accepted together with an Officers’ ' Certificate stating the aggregate principal amount of Notes or portions thereof of Notes being purchased by the Company. The Paying Agent paying agent shall promptly mail to each Holder of Notes so properly tendered the Change of Control Payment for such Notes, and the Trustee shall promptly authenticate and mail (or cause to be transferred by book entry) to each Holder a new Note equal in principal amount to any unpurchased portion of the Notes surrendered, if any; provided that each such new Note shall be in a principal amount of $1,000 2,000 or an integral multiple of $1,000 in excess thereof. The Company shall publicly announce the results of the Change of Control Offer on or as soon as practicable after the Change of Control Payment Date. The provisions set forth described above that require the Company to make a Change of Control Offer following a Change of Control shall be applicable regardless of whether or not any other provisions of this Indenture are applicable. Notwithstanding anything to the contrary in this Section 4.10, the .
(c) 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 requirements set forth in this Section 4.10 Indenture applicable to a Change of Control Offer made by the Company and purchases all Notes validly properly tendered and not withdrawn under such the Change of Control Offer.
Appears in 1 contract
Offer to Repurchase Upon a Change of Control. If a Change of Control occurs, unless the Company has exercised its right to redeem all the Notes under Section 3.073.08, each Holder of Notes shall have the right to require the Company to repurchase all or any part (equal to $€100,000 or integral multiples of €1,000 or an integral multiple in excess thereof) of that Holder’s Notes pursuant to a change of control offer on the terms set forth in this Indenture (a “Change of Control Offer”). In the Change of Control Offer, the Company shall offer a payment in cash equal to 101% of the aggregate principal amount of Notes repurchased plus accrued and unpaid interest and Liquidated Damages, if any, thereon, to the date of purchase (the “Change of Control Payment”). Within 30 days following any Change of ControlControl or, at the Company’s option, prior to the consummation of such Change of Control but after the public announcement thereof, the Company shall mail provide a notice to each Holder at its registered addressaddress (with a copy to the Trustee) describing the transaction or transactions that constitute the Change of Control and offering to repurchase Notes on the date specified in such notice. The notice shall contain all instructions and materials necessary to enable such Holder to tender Notes pursuant to the Change of Control Offer. Any Change of Control Offer shall be made to all Holders. The notice, which shall govern the terms of the Change of Control Offer, shall state: (1) that the Change of Control Offer is being made pursuant to this Section 4.104.08; (2) the Change of Control Payment and the date on which Notes tendered and accepted for payment shall be purchased, which date shall be at least no earlier than 30 days and no later than 60 days from the date such notice is mailed provided (other than as required by law) (the “Change of Control Payment Date”); (3) that any Note not tendered or accepted for payment shall continue to accrete or accrue interest; (4) that, unless the Company defaults in making such payment, any Note accepted for payment pursuant to the Change of Control Offer shall cease to accrete or accrue interest after the Change of Control Payment Date; (5) that Holders electing to have a Note purchased pursuant to any Change of Control Offer shall be required to surrender the Note, with the form entitled “Option of Holder to Elect Purchase” on the reverse of the Note completed, or transfer by book-entry transfer, to the Company, a depositary, if appointed by the Company, or the Paying Agent at the address specified in the notice at least three days before the Change of Control Payment Date; (6) that Holders shall be entitled to withdraw their election if the Company, the depositary or the Paying Agent, as the case may be, receives, not later than the Change of Control Payment Date, a notice setting forth the name of the Holder, the principal amount of the Note the Holder delivered for purchase and a statement that such Holder is withdrawing his election to have such Note purchased; (7) that Notes and portions of Notes purchased shall be in amounts of $€100,000 or an integral multiple of €1,000 or whole multiples of $1,000in excess thereof, except that if all of the Notes of a Holder are to be purchased, the entire outstanding amount of Notes held by such Holder, even if not a €100,000 or an integral multiple of $1,000€1,000 in excess thereof, shall be purchased; and (8) that Holders whose Notes were purchased only in part shall be issued new Notes equal in principal amount to the unpurchased portion of the Notes surrendered (or transferred by book-entry transfer), which unpurchased portion must be equal to $1,000 in principal amount €100,000 or an integral multiple of €1,000 in excess thereof. The Company shall comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws and regulations are applicable in connection with the repurchase of the Notes as a result of a Change of Control. To the extent that the provisions of any securities laws or regulations conflict with the Change of Control provisions of this Indenture, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under the Change of Control provisions of this Indenture by virtue of such conflict. On the Change of Control Payment Date, the Company shall, to the extent lawful:
(1) accept for payment all Notes or portions thereof properly tendered pursuant to the Change of Control Offer;
(2) deposit with the Paying Agent an amount equal to the Change of Control Payment in respect of all Notes or portions thereof so tendered; and
(3) 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. The Paying Agent shall promptly mail cause to be delivered to each Holder of Notes so tendered the Change of Control Payment for such Notes, and the Trustee (or an authentication agent appointed by it) shall promptly authenticate and mail (or cause to be transferred by book entry) to each Holder a new Note equal in principal amount to any unpurchased portion of the Notes surrendered, if any; provided that each such new Note shall be in a principal amount of $1,000 €100,000 or an integral multiple of €1,000 in excess thereof. The Company shall publicly announce the results of the Change of Control Offer on or as soon as practicable after the Change of Control Payment Date. The provisions set forth above that require the Company to make a Change of Control Offer following a Change of Control shall not be applicable regardless after a discharge of whether the Indenture pursuant to Section 8.01 or not any other provisions of this Indenture are applicabledefeasance from the Company’s legal obligations with respect to the Notes pursuant to Section 8.03 or Section 8.04. Notwithstanding anything to the contrary in this Section 4.104.08, 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 requirements set forth in this Section 4.10 4.08 and purchases all Notes validly tendered and not withdrawn under such Change of Control Offer. Notwithstanding anything to the contrary contained herein, a Change of Control Offer may be made in advance of a Change of Control, conditioned upon the consummation of such Change of Control, if a definitive agreement is in place providing for the Change of Control at the time the Change of Control Offer is made. In the event Holders of not less than 90% of the aggregate principal amount of the outstanding Notes tender and do not withdraw such Notes in a Change of Control Offer and the Company purchases all the properly tendered and not withdrawn Notes held by such Holders, within 90 days of such purchase, the Company will have the right, upon not less than 10 days and not more than 60 days prior notice to Holders as provided under Section 3.03, to redeem all the Notes that remain outstanding following such purchase at a redemption price equal to the Change of Control Payment (it being understood that the date of purchase for purposes of such definition is the date of redemption) (subject to the right of Holders of record on the relevant record date to receive interest due on the Notes on the relevant interest payment date).
Appears in 1 contract
Samples: Indenture (Owens-Illinois Group Inc)
Offer to Repurchase Upon a Change of Control.
(a) If a Change of Control occursoccurs at any time, unless then the Company has exercised its right to redeem the Notes under Section 3.07, each Holder of Notes Issuer shall have the right to require the Company to repurchase all or any part (equal to $1,000 or make an integral multiple thereof) of that Holder’s Notes pursuant to a change of control offer on the terms set forth in this Indenture (a “Change of Control Offer”). In ) to each Holder to purchase all or any part (in denominations of €100,000 and in inte- gral multiples of €1 in excess thereof, in the Change case of Control Offerthe Euro Notes, and in denominations of $200,000 and in integral multiples of $1 in excess thereof, in the Company shall offer case of the Dollar Notes) of such Holder’s Notes, at a payment purchase price in cash in an amount equal to 101% of the aggregate principal amount of Notes repurchased thereof, plus accrued and unpaid interest and Liquidated DamagesAdditional Amounts, if any, thereon, to the date of purchase (the “Change of Control PaymentPay- ment”). ) (subject to the rights of Holders on the relevant Record Date to receive interest due on the relevant Interest Payment Date).
(b) Within 30 days following any Change of Control, the Company Issuer shall mail a notice to each Holder at its registered address. The notice shall contain all instructions and materials necessary to enable such Holder to tender Notes pursuant to the Change of Control Offer. Any Change of Control Offer shall be made to all Holders. The notice, which shall govern the terms of the Change of Control OfferOffer to each Holder at such Holder’s registered address or otherwise deliver such a notice in accordance with the procedures set forth in Section 13.02, which notice shall state: :
(1i) that a Change of Control has occurred, and the date it occurred;
(ii) that the Change of Control Offer is being made pursuant to this Section 4.10; 4.11 and that all Notes tendered will be accepted for payment;
(2iii) the Change of Control Payment and the date on of purchase (the “Change of Control Payment Date”), which Notes tendered and accepted for payment shall be purchased, which date shall be at least a Business Day no earlier than 30 days and no nor later than 60 days from the date such notice is mailed or delivered, or such later date as is necessary to comply with requirements under the Exchange Act and any applicable securities laws or regula- tions;
(the “Change of Control Payment Date”); (3iv) that any Note not tendered or accepted for payment shall continue to accrete or accrue interest; (4) that, unless the Company defaults in making such payment, any Note accepted for payment pursuant to the Change of Control Offer shall cease to accrete or accrue interest after the Change of Control Payment Date; (5) that Holders electing to have a Note purchased pursuant to any Change of Control Offer shall be required to surrender the Note, with the form entitled “Option of Holder to Elect Purchase” on the reverse of the Note completed, or transfer by book-entry transfer, to the Company, a depositary, if appointed by the Company, or the Paying Agent at the address specified in the notice at least three days before Date unless the Change of Control Payment Date; is not paid;
(6v) that any Note (or part thereof) not tendered shall continue to accrue interest;
(vi) that Holders shall will be entitled to withdraw their election if the Company, the depositary or the Paying Agent, as the case may be, Agent receives, not later than the close of business on the second Business Day preceding the Change of Control Payment Date, a notice facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Note the Holder Notes delivered for purchase purchase, and a statement that such Holder is withdrawing withdraw- ing his election to have such Note purchased; (7) that Notes and portions of Notes purchased shall be in amounts of $1,000 or whole multiples of $1,000, except that if all of the Notes of a Holder are to be purchased, the entire outstanding amount of Notes held by such Holder, even if not a multiple of $1,000, shall be purchased; and ;
(8) vii) that Holders whose Notes were are being purchased only in part shall will be issued new Notes equal in principal amount to the unpurchased portion of the Notes surrendered (or transferred by book-entry transfer)surrendered, which unpurchased portion must be equal to to, in the case of the Dollar Notes, $1,000 200,000 in principal amount or an integral multiple of $1 in excess thereof and, in the case of the Euro Notes, €100,000 in principal amount or an integral multiple of €1 in excess thereof. The Company shall comply with the requirements of Rule 14e-1 under the Exchange Act and ; and
(viii) any other securities laws and regulations thereunder procedures that a Holder must follow to the extent such laws and regulations are applicable in connection with the repurchase of the Notes as a result of accept a Change of Control. To Con- trol Offer or to withdraw such acceptance (which procedures may also be performed at the extent that office of the provisions Paying Agent in Luxembourg as long as the Notes are listed on the Official List of any securities laws or regulations conflict with the Change of Control provisions of this Indenture, Luxembourg Stock Exchange and admitted to trading on the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under the Change of Control provisions of this Indenture by virtue of such conflict. Euro MTF Market).
(c) On the Change of Control Payment Date, the Company Issuer shall, to the extent lawful:
(1i) accept for payment all Notes or portions thereof (equal to, in the case of Dollar Notes, $200,000 or an integral multiple of $1 in excess thereof, and, in the case of Euro Notes, €100,000 or an integral multiple of €1 in excess thereof) properly tendered pursuant to the Change of Control Offer;
(2ii) deposit with the Paying Agent Agents an amount equal to the Change of Control Payment in respect of all Notes or portions thereof so tendered; and
(3iii) deliver or cause to be delivered to the Trustee the Notes so properly accepted together with an Officers’ Officer’s Certificate stating the aggregate principal amount of Notes or portions thereof being purchased by the Company. Issuer.
(d) The Paying Agent Agents shall promptly as soon as reasonably practicable mail (or cause to be delivered) to each Holder that has properly tendered its Notes pursuant to the Change of Notes so tendered Control Offer an amount equal to the Change of Control Payment for such Notes, and the Trustee shall promptly itself or via the authenticat- ing agent as soon as reasonably practicable authenticate and mail (or cause to be transferred by book book- entry) to each such Holder a new Note or Notes equal in principal amount to any unpurchased portion of the Notes surrendered, if any; provided that each such new Euro Note shall be in a principal amount of €100,000 and in integral multiples of €1 in excess thereof and each such new Dollar Note shall be in a principal amount of $1,000 or an 200,000 and in integral multiple multiples of $1 in excess thereof. .
(e) The Company Issuer shall publicly announce the results of the Change of Control Offer on or as soon as practicable after the Change of Control Payment Date. The provisions set forth above that require If and for so long as the Company Notes are listed on the Official List of the Luxembourg Stock Exchange and admitted to make trading on the Euro MTF Market and the rules and regulations of the Luxembourg Stock Exchange so require, the Issuer shall publish a public announcement with respect to the results of any Change of Control Offer following a in the Luxemburger Wort (or another leading newspaper of general circulation in Luxembourg) or, to the extent and in the manner permitted by such rules, post such notice on the official website of the Luxembourg Stock Exchange.
(f) If the Change of Control Payment Date is on or after an interest Record Date and on or before the related Interest Payment Date, any accrued and unpaid interest, if any, shall be applicable regardless of whether or not any other provisions of this Indenture are applicable. Notwithstanding anything paid to the contrary Per- son in this Section 4.10whose name a Note is registered at the close of business on such Record Date, and no additional interest shall be payable to Holders who tender pursuant to the Company Change of Control Offer.
(g) The Issuer shall not be required to make a Change of Control Offer upon a Change of Control if (x) a third party makes the Change of Control Offer in the manner, at the times and otherwise in compliance with the requirements set forth in this Section 4.10 herein applicable to a Change of Control Offer made by the Issuer and purchases all Notes validly properly tendered and not withdrawn under such the Change of Control Offer; or (y) a notice of redemption has been given pursuant to Article Three hereof, unless and until there is a default in payment of the applicable Redemption Price. Notwithstanding anything to the contrary con- tained herein, a Change of Control Offer may be made in advance of a Change of Control, conditioned upon the consummation of such Change of Control, if a definitive agreement is in place for the Change of Control at the time the Change of Control Offer is made.
(h) The Issuer shall comply with the requirements of Rule 14e-1 under the Exchange Act and any other applicable securities laws and regulations to the extent those laws and regulations are applicable in connection with the repurchase of the Notes as a result of a Change of Control Offer. To the extent that the provisions of any securities laws or regulations conflict with provisions of this Indenture, the Issuer shall comply with any applicable securities laws and regulations and shall not be deemed to have breached its obligations under this Indenture by virtue of such compliance.
(i) The provisions of this Section 4.11 relating to the Issuer’s obligation to make a Change of Control Offer may be waived or modified with the consent of the Holders of a majority in principal amount of the Notes prior to the occurrence of the Change of Control.
Appears in 1 contract
Samples: Indenture
Offer to Repurchase Upon a Change of Control. (a) If a Change of Control Triggering Event occurs, unless the Company has previously or concurrently exercised its right to redeem all of the Notes under pursuant to Section 3.074.07, each Holder of Notes shall will have the right to require the Company to repurchase all or any part (equal to $1,000 2,000 or an integral multiple thereofof $1,000 in excess of $2,000) of that such Holder’s Notes pursuant to at a change of control offer on the terms set forth in this Indenture (a “Change of Control Offer”). In the Change of Control Offer, the Company shall offer a payment purchase price in cash equal to 101% of the aggregate principal amount of the Notes repurchased plus accrued and unpaid interest and Liquidated Damagesinterest, if any, thereonto, to but excluding, the date of purchase (subject to the right of Holders of record on the relevant record date to receive interest due on the Interest Payment Date).
(b) Within 30 days following any Change of Control Triggering Event, unless the Company has previously or concurrently exercised its right to redeem all of the Notes pursuant to Section 4.07, the Company shall mail a notice (the “Change of Control Offer”) to each Holder of Notes, with a copy to the Trustee, stating, among other things:
(1) that a Change of Control Triggering Event has occurred and that such Holder has the right to require the Company to purchase such Holder’s Notes at a purchase price in cash equal to 101% of the principal amount of such Notes plus accrued and unpaid interest, if any, to, but excluding, the date of purchase (subject to the right of Holders of record on the relevant record date to receive interest due on the Interest Payment Date) (the “Change of Control Payment”). Within 30 days following any Change of Control, the Company shall mail a notice to each Holder at its registered address. The notice shall contain all instructions and materials necessary to enable such Holder to tender Notes pursuant to the Change of Control Offer. Any Change of Control Offer shall be made to all Holders. The notice, which shall govern the terms of the Change of Control Offer, shall state: (1) that the Change of Control Offer is being made pursuant to this Section 4.10; ;
(2) the Change of Control Payment and the repurchase date on (which Notes tendered and accepted for payment shall be purchased, which date shall be at least no earlier than 30 days and no nor later than 60 days from the date such notice is mailed sent) (the “Change of Control Payment Date”); ;
(3) that any Note not properly tendered or accepted for payment shall will remain outstanding and continue to accrete or accrue interest; ;
(4) that, that unless the Company defaults in making such paymentthe payment of the Change of Control Payment, any Note all Notes accepted for payment pursuant to the Change of Control Offer shall will cease to accrete or accrue interest after on the Change of Control Payment Date; ;
(5) that Holders electing to have a Note any Notes in certificated form purchased pursuant to any a Change of Control Offer shall will be required to surrender the Notesuch Notes, with the form entitled “Option of Holder to Elect Purchase” on the reverse of the Note such Notes completed, or transfer by book-entry transfer, to the Company, a depositary, if appointed by the Company, or the Paying Agent specified in the notice at the address specified in the notice at least three days before prior to the close of business on the third Business Day preceding the Change of Control Payment Date; ;
(6) that Holders shall will be entitled to withdraw their tendered Notes and their election if to require the CompanyCompany to purchase such Notes, the depositary or provided, that the Paying Agent, as the case may be, Agent receives, not later than the close of business on the third Business Day preceding the Change of Control Payment Date, a notice setting forth an electronic transmission or letter complying with the name requirements of the Holder, the principal amount of the Note the Holder delivered for purchase and a statement that such Holder is withdrawing his election to have such Note purchased; Section 5.15(f) below;
(7) that Notes and portions of Notes purchased shall be in amounts of $1,000 or whole multiples of $1,000, except that if all the Company is repurchasing a portion of the Notes Note of a Holder are to be purchasedany Holder, the entire outstanding amount of Notes held by such Holder, even if not a multiple of $1,000, shall be purchased; and (8) that Holders whose Notes were purchased only in part shall Holder will be issued a new Notes Note equal in principal amount to the unpurchased portion of the Notes surrendered (or transferred by book-entry transfer)Note surrendered; provided, which that the unpurchased portion of the Note must be equal to a minimum principal amount of $2,000 and an integral multiple of $1,000 in principal amount or an integral multiple thereof. The Company shall comply excess of $2,000; and
(8) other procedures determined by the Company, consistent with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws and regulations are applicable in connection with the repurchase of the Notes as a result of a Change of Control. To the extent that the provisions of any securities laws or regulations conflict with the Change of Control provisions of this Indenture, the Company shall comply with the applicable securities laws and regulations and shall not be deemed that a Holder must follow to have breached its obligations under the Change of Control provisions of this Indenture by virtue of such conflict. Notes repurchased.
(c) On the Change of Control Payment Date, the Company shallwill, to the extent lawful:
(1) accept for payment all Notes or portions thereof of Notes (in a minimum principal amount of $2,000 and integral multiples of $1,000 in excess of $2,000) properly tendered pursuant to the Change of Control OfferOffer and not properly withdrawn;
(2) deposit with the Paying Agent paying agent an amount equal to the Change of Control Payment in respect of all Notes or portions thereof so tenderedof Notes accepted for payment, provided, however, that the funds once deposited are to be uninvested until disbursed pursuant to this Section 5.15; and
(3) 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 of Notes being purchased by the Company. .
(d) The Paying Agent shall will promptly mail send or deliver to each Holder of Notes so tendered accepted for payment the Change of Control Payment for such Notes, and the Trustee shall will promptly authenticate and mail (or cause to be transferred by book entry) to each Holder a new Note equal in principal amount to any unpurchased portion of the Notes surrendered, if any; provided provided, that each such new Note shall will be in a minimum principal amount of $1,000 2,000 or an integral multiple thereof. The Company shall publicly announce the results of $1,000 in excess of $2,000.
(e) If the Change of Control Offer Payment Date is on or as soon as practicable after an interest record date and on or before the related Interest Payment Date, any accrued and unpaid interest, will be paid to the Person in whose name a Note is registered at the close of business on such record date, and no further interest will be payable to Holders who tender their Notes pursuant to the Change of Control Offer.
(f) A tender made in response to a Change of Control Offer may be withdrawn if the Company receives, not later than the third Business Day prior to the Change of Control Payment Date. The provisions set forth above that require , an electronic transmission, facsimile transmission or letter, specifying, as applicable: (1) the name of the Holder; (2) the certificate number of the Note in respect of which such notice of withdrawal is being submitted; (3) the principal amount of the Note (which shall be $2,000 or whole multiples of $1,000 in excess thereof) delivered for purchase by the Company as to make which such notice of withdrawal is being submitted; (4) a statement that such Holder is withdrawing such Holder’s election to have such principal amount of such Note purchased; and (5) the principal amount, if any, of such Note (which shall be $2,000 or whole multiples of $1,000 in excess thereof) that remains subject to the original Change of Control Offer and that has been or will be delivered for purchase by the Company.
(g) The Trustee and the Paying Agent shall return to the Company, upon its request, any cash that remains unclaimed for two years after a Change of Control Offer Payment Date together with interest or dividends, if any, thereon (subject to Section 8.01(f)), held by them for the payment of the Change of Control Payment; and the Holder of such tendered and accepted Note shall thereafter look only to the Company for payment thereof, and all liability of the Trustee or such Paying Agent with respect to such cash, and all liability of the Company as trustee thereof, shall thereupon cease; provided, however, that the Trustee or such Paying Agent, before being required to make any such repayment, shall at the expense of the Company comply with the SEC Regulation 17AD-17 as it applies to lost bondholders; provided, further however, that (x) to the extent that the aggregate amount of cash deposited by the Company pursuant to Section 5.15(c)(2) exceeds the aggregate Change of Control Payment of the Notes or portions thereof to be purchased, then the Trustee shall hold such excess for the Company and (y) unless otherwise directed by the Company in writing, promptly after the Business Day following the Change of Control Payment Date the Trustee shall return any such excess to the Company together with interest, if any, thereon (subject to Section 8.01(f)).
(h) The Company shall comply, to the extent applicable, with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws or regulations in connection with a Change of Control shall be applicable regardless of whether or not any other Offer. To the extent that the provisions of this Indenture are applicable. Notwithstanding anything to the contrary in any securities laws or regulations conflict with this Section 4.105.15, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under this Section 5.15 by virtue of such conflict.
(i) Notwithstanding the foregoing, the Company shall not be required to make a Change of Control Offer (i) upon a Change of Control Triggering Event if a third party makes the Change of Control Offer in the manner, at the times and otherwise in compliance with the requirements set forth in this Section 4.10 Indenture applicable to a Change of Control Offer made by the Company and purchases all Notes validly tendered and not withdrawn under such Change of Control Offer or (ii) if notice of redemption for 100% of the aggregate principal amount of the outstanding Notes has been given pursuant to Section 4.07, unless and until there is a default in payment of the applicable redemption price.
(j) If Holders of not less than 90% of the aggregate principal amount of the outstanding Notes validly tender their Notes and do not withdraw such Notes in a Change of Control Offer and the Company, or any third party making a Change of Control Offer in lieu of the Company pursuant to Section 5.15(i) above, purchases all of the Notes that are validly tendered and not withdrawn by such Holders, the Company will have the right, upon not less than 30 nor more than 60 days’ prior notice, given not more than 30 days following the purchase pursuant to the Change of Control Offer described under this Section 5.15, to redeem all of the Notes that remain outstanding following such purchase at a redemption price in cash equal to the applicable Change of Control Payment plus, to the extent not included in the Change of Control Payment, accrued and unpaid interest, if any, to, but excluding, the date of redemption.
(k) A Change of Control Offer may be made in advance of a Change of Control Triggering Event, and conditioned upon the occurrence of a Change of Control Triggering Event, if a definitive agreement is in place for the Change of Control at the time of making of the Change of Control Offer.
Appears in 1 contract
Samples: Indenture (SM Energy Co)
Offer to Repurchase Upon a Change of Control. If (a) Upon the occurrence of a Change of Control occurs, unless the Company has exercised its right to redeem the Notes under Section 3.07Control, each Holder of Notes shall have the right to require that the Company to repurchase purchase all or any part (equal to $1,000 or an integral multiple thereof) a portion of that such Holder’s 's Notes pursuant to the offer described in paragraph (b) (the "CHANGE OF CONTROL OFFER"), at a change of control offer on the terms set forth in this Indenture (a “Change of Control Offer”). In the Change of Control Offer, the Company shall offer a payment in cash purchase price equal to 101% of the aggregate principal amount of Notes repurchased thereof plus accrued and unpaid interest and Liquidated Damages, if any, thereon, to the date of purchase purchase.
(the “Change of Control Payment”). b) Within 30 days following any the date upon which the Change of ControlControl occurred, the Company shall mail send, by first class mail, postage prepaid, a notice to each Holder at its registered address. The notice shall contain all instructions and materials necessary to enable such Holder to tender Notes pursuant Holder, with a copy to the Change of Control Offer. Any Change of Control Offer shall be made to all Holders. The noticeTrustee, which notice shall govern the terms of the Change of Control Offer, . Such notice shall state: :
(1) that the Change of Control Offer is being made pursuant to this Section 4.10; 4.15 and that all Notes tendered will be accepted for payment;
(2) the Change purchase price (including the amount of Control Payment accrued interest) and the purchase date on (which Notes tendered and accepted for payment shall be purchased, which date shall be at least no earlier than 30 days and no nor later than 60 days from the date such notice is mailed mailed, other than as may be required by law) (the “Change of Control Payment Date”"CHANGE OF CONTROL PAYMENT DATE"); ;
(3) that any Note not tendered or accepted for payment shall will continue to accrete or accrue interest; interest if interest is then accruing;
(4) that, unless the Company defaults in making such paymentpayment therefor, any Note accepted for payment pursuant to the Change of Control Offer shall cease to accrete or accrue interest after the Change of Control Payment Date; ;
(5) that Holders electing to have a Note purchased pursuant to any a Change of Control Offer shall will be required to surrender the Note, with the form entitled “"Option of Holder to Elect Purchase” " on the reverse of the Note completed, or transfer by book-entry transfer, to the Company, a depositary, if appointed by the Company, or the Paying Agent at the address specified in the notice at least three days before prior to 5:00 p.m., New York City time, on the third Business Day prior to the Change of Control Payment Date; ;
(6) that Holders shall will be entitled to withdraw their election if the Company, the depositary or the Paying Agent, as the case may be, Agent receives, not later than 5:00 p.m., New York City time, on the third Business Day preceding the Change of Control Payment Date, a notice telegram, telex, facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Note Notes the Holder delivered for purchase and a statement that such Holder is withdrawing his election to have such Note purchased; and
(7) that the circumstances and relevant facts regarding such Change of Control.
(c) On or before the Change of Control Payment Date, the Company shall (i) accept for payment Notes or portions thereof tendered pursuant to the Change of Control Offer, (ii) deposit with the Paying Agent U.S. Legal Tender sufficient to pay the purchase price plus accrued interest, if any, of all Notes or portions thereof so tendered and accepted and (iii) deliver to the Trustee Notes so accepted for cancellation pursuant to Section 2.11, together with an Officers' Certificate stating the Notes or portions thereof being purchased by the Company. The Paying Agent shall promptly mail or deliver to the Holders of Notes purchased so accepted payment in an amount equal to the purchase price plus accrued interest, if any, and the Company shall be in amounts of $1,000 execute and issue, and the Trustee shall promptly authenticate and mail or whole multiples of $1,000, except that if all of the Notes of a Holder are deliver to be purchased, the entire outstanding amount of Notes held by such Holder, even if not a multiple of $1,000, shall be purchased; and (8) that Holders whose Notes were purchased only in part shall be issued new Notes equal in principal amount to the any unpurchased portion of the Notes surrendered (surrendered. Any Notes not so accepted shall be promptly mailed or transferred delivered by book-entry transfer), which unpurchased portion must be equal the Company to $1,000 in principal amount or an integral multiple the Holder thereof. The Company shall publicly announce the results of the Change of Control Offer on or as soon as practicable after the Change of Control Payment Date. For purposes of this Section 4.15, the Trustee shall act as the Paying Agent.
(d) Prior to the mailing of the notice described in clause (b) above, but in any event within 30 days following any Change of Control, the Company shall: (i) repay in full and terminate all commitments under Indebtedness under the Credit Agreement and all other Senior Debt the terms of which require repayment upon a Change of Control or offer to repay in full and terminate all commitments under all Indebtedness under the Credit Agreement and all other such Senior Debt and to repay the Indebtedness owed to each lender which has accepted such offer; or (ii) obtain the requisite consents under the Credit Agreement and all other Senior Debt to permit the repurchase of the Notes as described above. The Company shall first comply with the covenant in the immediately preceding sentence before it shall be required to repurchase Notes pursuant to the other provisions of this Section 4.15. The Company's failure to comply with this Section 4.15(d) shall constitute an Event of Default described in clause (3) and not in clause (2) in Section 6.1 of this Indenture.
(e) The Company shall comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws and regulations are applicable in connection with the repurchase of the Notes as a result of pursuant to a Change of ControlControl Offer. To the extent that the provisions of any securities laws or regulations conflict with the Change of Control provisions of this IndentureSection 4.15, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under the Change of Control provisions of this Indenture Section 4.15 by virtue of such conflict. On the Change of Control Payment Date, the Company shall, to the extent lawful:
(1) accept for payment all Notes or portions thereof properly tendered pursuant to the Change of Control Offer;
(2) deposit with the Paying Agent an amount equal to the Change of Control Payment in respect of all Notes or portions thereof so tendered; and
(3) 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. The Paying Agent shall promptly mail to each Holder of Notes so tendered the Change of Control Payment for such Notes, and the Trustee shall promptly authenticate and mail (or cause to be transferred by book entry) to each Holder a new Note equal in principal amount to any unpurchased portion of the Notes surrendered, if any; provided that each such new Note shall be in a principal amount of $1,000 or an integral multiple thereof. The Company shall publicly announce the results of the Change of Control Offer on or as soon as practicable after the Change of Control Payment Date. The provisions set forth above that require the Company to make a Change of Control Offer following a Change of Control shall be applicable regardless of whether or not any other provisions of this Indenture are applicable. Notwithstanding anything to the contrary in this Section 4.10, 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 requirements set forth in this Section 4.10 and purchases all Notes validly tendered and not withdrawn under such Change of Control Offer.
Appears in 1 contract
Offer to Repurchase Upon a Change of Control. (a) If a Change of Control occurs, unless the Company has exercised its right given (or, if a Change of Control occurs prior to redeem May 1, 2013, within 60 days thereafter will have given) notice of redemption of all the Notes under as described in Section 3.07, each Holder of Notes shall will have the right to require that the Company to repurchase purchase all or any part (equal to in amounts of $2,000 or whole multiples of $1,000 or an integral multiple in excess thereof) of that such Holder’s Notes pursuant to a change of control the offer on described below (the terms set forth in this Indenture (a “Change of Control Offer”). In the Change of Control Offer, the Company shall will offer to purchase all of the Notes, at a payment purchase price (the “Change of Control Purchase Price”) in cash in an amount equal to 101% of the aggregate principal amount of Notes repurchased such Notes, plus accrued and unpaid interest and Liquidated Damagesinterest, if any, thereon, to the date of purchase (the “Change of Control PaymentPurchase Date”)) subject to the rights of Holders of record on relevant record dates to receive interest due on an interest payment date. Any Change of Control Offer that is made prior to the occurrence of a Change of Control may at the Company’s discretion be subject to one or more conditions precedent, including the occurrence of a Change of Control.
(b) Within 30 days following after any Change of ControlControl or, at the Company’s option, prior to such Change of Control but after it is publicly announced, unless the Company has given (or, if a Change of Control occurs prior to May 1, 2013, within 60 days thereafter will have given) notice of redemption of all the Notes as described in Section 3.07, the Company shall mail a notify the Trustee and give written notice of the Change of Control to each Holder Holder, by first-class mail, postage prepaid, at its registered addresshis address appearing in the Security Register or otherwise in accordance with the procedures of DTC. The notice (the “Change of Control Purchase Notice”) shall contain state, among other things:
(i) that a Change of Control has occurred or will occur, the date of such event and the circumstances and relevant facts regarding such Change of Control;
(ii) that any Notes (or any portion thereof) accepted for payment (and duly paid on the Change of Control Purchase Date) pursuant to the Change of Control Offer shall cease to accrue interest on the Change of Control Purchase Date;
(iii) that any Notes (or any portion thereof) not properly tendered will continue to accrue interest;
(iv) the Change of Control Purchase Price and the Change of Control Purchase Date, which shall be, subject to any contrary requirements of applicable law, no less than 30 days nor more than 60 days after the date the notice is mailed; provided that the Change of Control Purchase Date may not occur prior to the Change of Control;
(v) a description of the procedures that Holders of Notes are required to follow in order to tender their Notes and the procedures that Holders of Notes are required to follow in order to withdraw an election to tender their Notes for payment; and
(vi) all other instructions and materials necessary to enable such Holder Holders to tender Notes pursuant to the Change of Control Offer. Any If any of the Notes subject to a Change of Control Offer is in the form of a Global Note, then the Company shall modify such notice to the extent necessary to accord with the procedures of the Depositary applicable to repurchases.
(c) Upon receipt by the Company of the proper tender of Notes, the Holder of the Note in respect of which such proper tender was made shall (unless the tender of such Note is properly withdrawn at least one Business Day prior to the Change of Control Purchase Date) thereafter be made entitled to all Holdersreceive solely the Change of Control Purchase Price with respect to such Notes. The noticeNotes to be purchased shall, which on the Change of Control Purchase Date, become due and payable at the Change of Control Purchase Price, and from and after such date (unless the Company shall govern default in the terms payment of the Change of Control Offer, Purchase Price) such Notes shall state: (1) that cease to bear interest. Such Change of Control Purchase Price shall be paid to such Holder promptly following the later of the Change of Control Offer is being made pursuant Purchase Date and the time of delivery of such Note to this Section 4.10; (2) the relevant Paying Agent at the office of such Paying Agent by the Holder thereof in the manner required. Upon surrender of any such Note for purchase in accordance with the foregoing provisions, such Note shall be paid by the Company at the Change of Control Payment and the date Purchase Price; provided, however, that installments of interest whose Stated Maturity is on which Notes tendered and accepted for payment shall be purchased, which date shall be at least 30 days and no later than 60 days from the date such notice is mailed (the “Change of Control Payment Date”); (3) that any Note not tendered or accepted for payment shall continue to accrete or accrue interest; (4) that, unless the Company defaults in making such payment, any Note accepted for payment pursuant prior to the Change of Control Offer Purchase Date shall cease be payable to accrete or accrue the Holders of such Notes, registered as such as of the close of business on the relevant record dates according to the terms and the provisions of Section 1.07. If any Note tendered for purchase in accordance with the provisions of this Section 4.17 shall not be so paid upon surrender thereof, the principal thereof (and premium, if any, thereon) shall, until paid, bear interest after from the Change of Control Payment Date; (5) that Purchase Date at the rate borne by such Note. Holders electing to have a Note Notes purchased pursuant to any Change of Control Offer shall will be required to surrender the Note, with the form entitled “Option of Holder such Notes to Elect Purchase” on the reverse of the Note completed, or transfer by book-entry transfer, to the Company, a depositary, if appointed by the Company, or the Paying Agent at the address specified in the notice at least three days before Change of Control Purchase Notice prior to the close of business on the third Business Day prior to the Change of Control Payment Purchase Date; (6) . Any Note that Holders is to be purchased only in part shall be entitled surrendered to withdraw their election a Paying Agent at the office of such Paying Agent (with, if the Company, the depositary Registrar or the Paying AgentTrustee so require, due endorsement by, or a written instrument of transfer in form satisfactory to the Company and the Registrar or the Trustee, as the case may be, receivesduly executed by, the Holder thereof or such Holder’s 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, one or more new Notes of any authorized denomination as requested by such Holder in an aggregate principal amount equal to, and in exchange for, the portion of the principal amount of the Note so surrendered that is not purchased. For all purposes of this Section 4.17, unless the context otherwise requires, all provisions relating to the purchase of Notes shall relate, in the case of any Notes purchased or to be purchased only in part, to the portion of the principal amount of such Notes which has been or is to be purchased. The Paying Agent (at the Company’s expense) shall promptly mail or deliver to the Holder thereof any Note or portion thereof not to be so purchased.
(d) The Company shall (i) not later than the Change of Control Payment Purchase Date, a notice setting forth the name of the Holder, the principal amount of the Note the Holder delivered for purchase and a statement that such Holder is withdrawing his election to have such Note purchased; (7) that Notes and portions of Notes purchased shall be in amounts of $1,000 or whole multiples of $1,000, except that if all of the Notes of a Holder are to be purchased, the entire outstanding amount of Notes held by such Holder, even if not a multiple of $1,000, shall be purchased; and (8) that Holders whose Notes were purchased only in part shall be issued new Notes equal in principal amount to the unpurchased portion of the Notes surrendered (or transferred by book-entry transfer), which unpurchased portion must be equal to $1,000 in principal amount or an integral multiple thereof. The Company shall comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws and regulations are applicable in connection with the repurchase of the Notes as a result of a Change of Control. To the extent that the provisions of any securities laws or regulations conflict with the Change of Control provisions of this Indenture, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under the Change of Control provisions of this Indenture by virtue of such conflict. On the Change of Control Payment Date, the Company shall, to the extent lawful:
(1) accept for payment all Notes or portions thereof properly tendered pursuant to the Change of Control Offer;
, (2ii) not later than 12:30 p.m. (New York City time) on the Change of Control Purchase Date, deposit with the Trustee or with a Paying Agent an amount equal of money in same day funds sufficient to pay the aggregate Change of Control Purchase Price of all the Notes or portions thereof that are to be purchased on that date and (iii) not later than 12:30 p.m. (New York City time) on the Change of Control Payment in respect of all Notes or portions thereof so tendered; and
(3) Purchase Date, deliver or cause to be delivered to the Trustee the Notes so accepted together with Paying Agent an Officers’ Certificate stating the aggregate principal amount of Notes or portions thereof being purchased accepted for payment by the Company. The Paying Agent shall promptly mail to each Holder of Notes so tendered the Change of Control Payment for such Notes, and the Trustee shall promptly authenticate and mail (or cause to be transferred by book entry) to each Holder a new Note equal in principal amount to any unpurchased portion of the Notes surrendered, if any; provided that each such new Note shall be in a principal amount of $1,000 or an integral multiple thereof. The Company shall publicly announce the results of the Change of Control Offer on or as soon as practicable after the Change of Control Payment Purchase Date. The provisions set forth above that require the Company .
(e) A tender made in response to make a Change of Control Offer following a Purchase Notice may be withdrawn if the Company receives, not later than one Business Day prior to the Change of Control Purchase Date, a telegram, telex, facsimile transmission or letter, specifying, as applicable:
(1) the name of the Holder;
(2) the certificate number of the Note in respect of which such notice of withdrawal is being submitted;
(3) the principal amount of the Note (which shall be applicable regardless $2,000 or whole multiples of whether $1,000 in excess thereof) delivered for purchase by the Holder as to which such notice of withdrawal is being submitted;
(4) a statement that such Holder is withdrawing his election to have such principal amount of such Note purchased; and
(5) the principal amount, if any, of such Note (which shall be $2,000 or not whole multiples of $1,000 in excess thereof) that remains subject to the original Change of Control Purchase Notice and that has been or will be delivered for purchase by the Company.
(f) The Company shall comply, to the extent applicable, with the requirements of Rule 14e-1 under the Exchange Act, and any other securities laws or regulations thereunder to the extent such laws and regulations are applicable in connection with the purchase of the Notes as described above. To the extent that the provisions of this Indenture are applicable. Notwithstanding anything any securities laws or regulations conflict with the provisions relating to the contrary in this Section 4.10Change of Control Offer, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under this Section 4.17 by virtue thereof.
(g) Notwithstanding the foregoing, the Company will not be required to make a Change of Control Offer (1) upon a Change of Control Control, if the Parent Guarantor or a third party makes the Change of Control Offer in the manner, at the times and otherwise in compliance with the requirements set forth in this Section 4.10 Supplemental Indenture applicable to a Change of Control Offer made by the Company and purchases all Notes validly tendered and not withdrawn under such Change of Control OfferOffer or (2) if notice of redemption for 100% of the aggregate principal amount of the outstanding Notes has been (or, if a Change of Control occurs prior to May 1, 2013, within 60 days thereafter will have been) given pursuant to this Supplemental Indenture as described in Section 3.07, unless and until there is a default in payment of the applicable redemption price.
(h) In the event that upon consummation of a Change of Control Offer less than 10% of the aggregate principal amount of the Notes (including Additional Notes) that were originally issued are hold by Holders other than the Company or Affiliates thereof, the Company will have the right, upon not less than 30 nor more than 60 days’ prior notice, given not more than 30 days following the purchase pursuant to the Change of Control Offer described above, to redeem all of the Notes that remain outstanding following such purchase at a redemption price equal to 101% of the aggregate principal amount of the Notes redeemed plus accrued and unpaid interest, if any, thereon to the date of redemption, subject to the right of the Holders of record on relevant record dates to receive interest due on an interest payment date.
Appears in 1 contract
Samples: Supplemental Indenture (Laredo Petroleum Holdings, Inc.)
Offer to Repurchase Upon a Change of Control. (a) If a Change of Control occurs, unless the Company has exercised its right to redeem the Notes under Section 3.07, each Holder of Notes shall have the right to require that the Company to repurchase Co-Obligors purchase all or any part (equal to in minimum amounts of $2,000 and integral multiples of $1,000 or an integral multiple in excess thereof) of that such Holder’s Notes pursuant to a change of control the offer on described below (the terms set forth in this Indenture (a “Change of Control Offer”). In the Change of Control Offer, the Company Co-Obligors shall offer to purchase all of the Notes, at a payment purchase price (the “Change of Control Purchase Price”) in cash in an amount equal to 101% of the aggregate principal amount of Notes repurchased such Notes, plus accrued and unpaid interest and Liquidated Damagesinterest, if any, thereon, to the date of purchase (the “Change of Control PaymentPurchase Date”) (subject to the rights of holders of record on relevant record dates to receive interest due on an interest payment date). .
(b) Within 30 days following after any Change of ControlControl or, at the Company’s option, prior to such Change of Control but after it is publicly announced, the Company shall mail a must notify the Trustee and give written notice to each Holder at its registered address. The notice shall contain all instructions and materials necessary to enable such Holder to tender Notes pursuant to the Change of Control Offer. Any Change of Control Offer shall be made to all Holders. The notice, which shall govern the terms of the Change of Control Offer(the “Change of Control Purchase Notice”) to each Holder of Notes, shall by first-class mail, postage prepaid, at his address appearing in the security register. The Change of Control Purchase Notice must state: , among other things:
(1) that the a Change of Control Offer is being made pursuant to this Section 4.10; has occurred or will occur and the date of such event;
(2) the Change of Control Payment Purchase Price and the date on Change of Control Purchase Date, which Notes tendered and accepted for payment shall be purchased, fixed by the Company on a Business Day (which date shall may be at least immediately after the Change of Control occurs) no earlier than 30 days and no nor later than 60 days from the date such notice is mailed (the “Change of Control Payment Date”)Purchase Notice is mailed, or such later date as is necessary to comply with requirements under the Exchange Act; provided that the Change of Control Purchase Date may not occur prior to the Change of Control;
(3) that any Note not tendered or accepted for payment shall will continue to accrete or accrue interest; ;
(4) that, unless the Company defaults Co-Obligors default in making such paymentthe payment of the Change of Control Purchase Price, any Note Notes accepted for payment pursuant to the Change of Control Offer shall cease to accrete or accrue interest after the Change of Control Payment Purchase Date; and
(5) other procedures that a Holder of Notes must follow to accept a Change of Control Offer or to withdraw acceptance of the Change of Control Offer.
(c) Upon receipt by the Co-Obligors of the proper tender of Notes, the Holder of the Note in respect of which such proper tender was made shall (unless the tender of such Note is properly withdrawn) thereafter be entitled to receive solely the Change of Control Purchase Price with respect to such Notes. Upon surrender of any such Note for purchase in accordance with the foregoing provisions, such Note shall be paid by the Co-Obligors at the Change of Control Purchase Price; provided, however, that installments of interest whose Stated Maturity is on or prior to the Change of Control Purchase Date shall be payable to the Holders of such Notes, registered as such on the relevant Regular Record Dates according to the terms and the provisions of Section 2.03. If any Note tendered for purchase in accordance with the provisions of this Section 4.20 shall not be so paid upon surrender thereof, the principal thereof (and premium, if any, thereon) shall, until paid, bear interest from the Change of Control Purchase Date at the rate borne by such Note. Holders electing to have a Note Notes purchased pursuant to any Change of Control Offer shall will be required to surrender the Note, with the form entitled “Option of Holder such Notes to Elect Purchase” on the reverse of the Note completed, or transfer by book-entry transfer, to the Company, a depositary, if appointed by the Company, or the Paying Agent at the address specified in the notice Change of Control Purchase Notice at least three days before one Business Day prior to the Change of Control Payment Purchase Date; (6) . Any Note that Holders is to be purchased only in part shall be entitled surrendered to withdraw their election a Paying Agent at the office of such Paying Agent (with, if the CompanyCo-Obligors, the depositary Registrar or the Paying AgentTrustee so require, due endorsement by, or a written instrument of transfer in form satisfactory to the Co-Obligors and the Registrar or the Trustee, as the case may be, receivesduly executed by, the Holder thereof or such Holder’s attorney duly authorized in writing), and the Co-Obligors shall execute and the Trustee shall authenticate and deliver to the Holder of such Note, without service charge, one or more new Notes of any authorized denomination as requested by such Holder in an aggregate principal amount equal to, and in exchange for, the portion of the principal amount of the Note so surrendered that is not purchased.
(d) The Co-Obligors shall (i) not later than the Change of Control Payment Purchase Date, accept for payment Notes or portions thereof tendered pursuant to the Change of Control Offer, (ii) not later than 10:00 a.m. (New York time) on the Business Day following the Change of Control Purchase Date, deposit with the Trustee or with a Paying Agent an amount of money in same day funds sufficient to pay the aggregate Change of Control Purchase Price of all the Notes or portions thereof which have been so accepted for payment and (iii) not later than 10:00 a.m. (New York time) on the Business Day following the Change of Control Purchase Date, deliver to the Paying Agent an Officers’ Certificate stating the Notes or portions thereof accepted for payment by the Co-Obligors. The Paying Agent shall promptly mail or deliver to Holders of Notes so accepted payment in an amount equal to the Change of Control Purchase Price of the Notes purchased from each such Holder, and the Co-Obligors shall execute and the Trustee shall promptly authenticate and mail or deliver to such Holders a new Note equal in principal amount to any unpurchased portion of the Note surrendered. Any Notes not so accepted shall be promptly mailed or delivered by the Paying Agent at the Co-Obligors’ expense to the Holder thereof. The Co-Obligors will publicly announce the results of the Change of Control Offer on the Change of Control Purchase Date. For purposes of this Section 4.20, the Co-Obligors shall choose a Paying Agent which shall not be the Company or Xxxxx Xxxxx GP.
(e) A tender made in response to a Change of Control Purchase Notice may be withdrawn if the Co-Obligors receive, not later than one Business Day prior to the Change of Control Purchase Date, a notice setting forth telegram, telex, facsimile transmission or letter, specifying, as applicable:
(1) the name of the Holder, ;
(2) the certificate number of the Note in respect of which such notice of withdrawal is being submitted;
(3) the principal amount of the Note the Holder (which shall be $2,000 or integral multiples of $1,000 in excess thereof) delivered for purchase and by the Holder as to which such notice of withdrawal is being submitted;
(4) a statement that such Holder is withdrawing his election to have such principal amount of such Note purchased; and
(75) that Notes and portions the principal amount, if any, of Notes purchased such Note (which shall be in amounts $2,000 or integral multiples of $1,000 in excess thereof) that remains subject to the original Change of Control Purchase Notice and that has been or whole multiples will be delivered for purchase by the Co-Obligors.
(f) Subject to applicable escheat laws, the Trustee and the Paying Agent shall return to the Co-Obligors any cash that remains unclaimed, together with interest or dividends, if any, thereon (subject to Section 7.01(f) hereof), held by them for the payment of $1,000the Change of Control Purchase Price; provided, except however, that if all (x) to the extent that the aggregate amount of cash deposited by the Co-Obligors pursuant to clause (ii) of paragraph (c) above exceeds the aggregate Change of Control Purchase Price of the Notes of a Holder are or portions thereof to be purchased, then the entire outstanding amount of Notes held by Trustee shall hold such Holder, even if not a multiple of $1,000, shall be purchased; excess for the Co-Obligors and (8) that Holders whose Notes were purchased only y) unless otherwise directed by the Co-Obligors in part writing, promptly after the Business Day following the Change of Control Purchase Date the Trustee shall be issued new Notes equal in principal amount return any such excess to the unpurchased portion of the Notes surrendered Co-Obligors together with interest, if any, thereon (or transferred by booksubject to Section 7.01(f) hereof).
(g) The Co-entry transfer), which unpurchased portion must be equal to $1,000 in principal amount or an integral multiple thereof. The Company Obligors shall comply with the requirements of applicable tender offer rules, including Rule 14e-1 under the Exchange Act Act, and any other applicable securities laws and or regulations thereunder to the extent such laws and regulations are applicable in connection with the repurchase of the Notes as a result of a Change of ControlControl Offer. To the extent that the provisions of any securities laws or regulations conflict with the Change of Control provisions of this IndentureSection 4.20, the Company Co-Obligors shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its their obligations under this Section 4.20 by virtue thereof, and the Change of Control relevant provisions of this Indenture by virtue of shall be deemed modified as necessary to permit such conflict. On compliance.
(h) Notwithstanding the Change of Control Payment Dateforegoing, the Company shall, to the extent lawful:
(1) accept for payment all Notes or portions thereof properly tendered pursuant to the Change of Control Offer;
(2) deposit with the Paying Agent an amount equal to the Change of Control Payment in respect of all Notes or portions thereof so tendered; and
(3) 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. The Paying Agent shall promptly mail to each Holder of Notes so tendered the Change of Control Payment for such Notes, and the Trustee shall promptly authenticate and mail (or cause to be transferred by book entry) to each Holder a new Note equal in principal amount to any unpurchased portion of the Notes surrendered, if any; provided that each such new Note shall be in a principal amount of $1,000 or an integral multiple thereof. The Company shall publicly announce the results of the Change of Control Offer on or as soon as practicable after the Change of Control Payment Date. The provisions set forth above that require the Company to make a Change of Control Offer following a Change of Control shall be applicable regardless of whether or not any other provisions of this Indenture are applicable. Notwithstanding anything to the contrary in this Section 4.10, the Company shall Co-Obligors will 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 Offer, in the manner, at the times and otherwise in compliance with the requirements set forth in this Section 4.10 Indenture applicable to a Change of Control Offer made by the Co-Obligors and purchases all Notes validly tendered and not withdrawn under such Change of Control OfferOffer (which offer may be made prior to the occurrence of and may be conditioned on such Change of Control).
Appears in 1 contract
Samples: Indenture (Duane Reade Holdings Inc)
Offer to Repurchase Upon a Change of Control. (a) If a Change of Control occurs, unless the Company has exercised its right to redeem the Notes under except as set forth in Section 3.074.11(g), each Holder of Notes shall will have the right to require the Company Issuer to repurchase all or any part (equal to a minimum of $1,000 2,000 or an integral multiple of $1,000 in excess thereof) of that the Holder’s Notes pursuant to a change of control an offer on the terms set forth in this Indenture (a “Change of Control Offer”)) on the terms set forth herein. In the Change of Control Offer, the Company shall Issuer will offer a payment in cash equal to 101% of the aggregate principal amount of Notes repurchased repurchased, plus accrued and unpaid interest and Liquidated DamagesAdditional Amounts, if any, thereon, on the Notes repurchased to but not including the date of purchase (the “Change of Control Payment”). , subject to the rights of Holders on the relevant Record Date to receive interest due on the relevant Interest Payment Date.
(b) Within 30 days following any Change of Control, the Company Issuer shall mail a notice to each Holder of the Notes at its such Holder’s registered address. The address or otherwise deliver a notice shall contain all instructions and materials necessary to enable such Holder to tender Notes pursuant in accordance with the procedures set forth in Section 3.04 (with a copy to the Trustee) stating that:
(i) that a Change of Control Offer. Any Change of Control Offer shall be made to all Holders. The noticehas occurred, which shall govern and the terms of the Change of Control Offerdate it occurred, shall state: (1) and that the a Change of Control Offer is being made pursuant made;
(ii) the circumstances and relevant facts regarding such Change of Control (including, but not limited to, applicable information with respect to this Section 4.10; pro forma historical income, cash flow and capitalization after giving effect to the Change of Control);
(2iii) the amount of the Change of Control Payment and the date on which Notes tendered and accepted for payment shall be purchasedof purchase (the “Change of Control Payment Date”), which date shall be at least a Business Day no earlier than 30 days and no later than 60 days from the date such notice is mailed or delivered, pursuant to the procedures required by this Indenture and described in such notice;
(the “Change of Control Payment Date”); (3iv) that any Note not tendered or accepted for payment shall continue to accrete or accrue interest; (4) that, unless the Company defaults in making such payment, any Note accepted for payment pursuant to the Change of Control Offer shall cease to accrete or accrue interest after the Change of Control Payment Date; (5) that Holders electing to have a Note purchased pursuant to any Change of Control Offer shall be required to surrender the Note, with the form entitled “Option of Holder to Elect Purchase” on the reverse of the Note completed, or transfer by book-entry transfer, to the Company, a depositary, if appointed by the Company, or the Paying Agent at the address specified in the notice at least three days before Date unless the Change of Control Payment Date; is not paid;
(6v) that Holders any Note (or part thereof) not tendered shall be entitled continue to withdraw their election if the Company, the depositary or the Paying Agent, as the case may be, receives, not later than the accrue interest; and
(vi) any other procedures that a Holder must follow to accept a Change of Control Payment Date, a notice setting forth the name of the Holder, the principal amount of the Note the Holder delivered for purchase and a statement that Offer or to withdraw such Holder is withdrawing his election to have such Note purchased; acceptance.
(7c) that Notes and portions of Notes purchased shall be in amounts of $1,000 or whole multiples of $1,000, except that if all of the Notes of a Holder are to be purchased, the entire outstanding amount of Notes held by such Holder, even if not a multiple of $1,000, shall be purchased; and (8) that Holders whose Notes were purchased only in part shall be issued new Notes equal in principal amount to the unpurchased portion of the Notes surrendered (or transferred by book-entry transfer), which unpurchased portion must be equal to $1,000 in principal amount or an integral multiple thereof. The Company shall comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws and regulations are applicable in connection with the repurchase of the Notes as a result of a Change of Control. To the extent that the provisions of any securities laws or regulations conflict with the Change of Control provisions of this Indenture, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under the Change of Control provisions of this Indenture by virtue of such conflict. On the Change of Control Payment Date, the Company Issuer shall, to the extent lawful:
(1i) accept for payment all Notes or portions thereof of Notes properly tendered and not withdrawn pursuant to the Change of Control Offer;
(2ii) deposit with the Paying Agent an amount equal to the Change of Control Payment in respect of all Notes or portions thereof of Notes so tenderedaccepted for payment; and
(3iii) deliver or cause to be delivered to the Trustee the Notes so properly accepted together with an Officers’ Officer’s Certificate stating the aggregate principal amount of Notes or portions thereof of Notes being purchased by the Company. Issuer.
(d) The Paying Agent shall promptly mail (or cause to be delivered) to each Holder of Notes which has properly tendered and so tendered accepted the Change of Control Payment for such Notes, and the Trustee (or an authenticating agent appointed by the Issuer) shall promptly authenticate and mail deliver (or cause to be transferred by book book-entry) to each Holder a new Note equal in principal amount to any unpurchased portion of the Notes surrendered, if any; provided that each such new . Any Note shall be in a principal amount so accepted for payment will cease to accrue interest on or after the Change of $1,000 or an integral multiple thereofControl Payment Date. The Company Issuer shall publicly announce the results of the Change of Control Offer on or as soon as practicable after the Change of Control Payment Date. The provisions set forth above that require the Company to make a Change of Control Offer following a Change of Control shall .
(e) This Section 4.11 will be applicable regardless of whether or not any other provisions of this Indenture are applicable. Notwithstanding anything A Change of Control Offer may be made in advance of a Change of Control, and conditioned upon such Change of Control, if a definitive agreement is in place for the Change of Control at the time of making of the Change of Control Offer.
(f) If the Change of Control Payment Date is on or after an interest Record Date and on or before the related Interest Payment Date, any accrued and unpaid interest, if any, shall be paid to the contrary Person in this Section 4.10whose name a Note is registered at the close of business on such Record Date, and no additional interest shall be payable to Holders who tender pursuant to the Company shall Change of Control Offer.
(g) The Issuer will not be required to make a Change of Control Offer upon a Change of Control if (i) a third party makes the Change of Control Offer in the manner, at the times and otherwise in compliance with the requirements set forth in this Section 4.10 Indenture applicable to a Change of Control Offer made by the Issuer and purchases all Notes properly tendered and not withdrawn under the Change of Control Offer or (ii) a notice of redemption has been given pursuant to Section 3.06 or Section 3.09, unless and until there is a default in payment of the applicable redemption price. Notwithstanding anything to the contrary contained herein, a Change of Control Offer may be made in advance of a Change of Control, conditioned upon the consummation of such Change of Control, if a definitive agreement is in place for the Change of Control at the time the Change of Control Offer is made.
(h) Notwithstanding the foregoing clauses (a) through (g), in connection with any Change of Control Offer, if holders of not less than 90% in aggregate principal amount of the outstanding Notes validly tender and do not withdraw such Notes in such Change of Control Offer and the Issuer, or any third party making such a Change of Control Offer in lieu of the Issuer, purchases all of the Notes validly tendered and not withdrawn by such holders, the Issuer or such third party will have the right, upon not less than 10 nor more than 60 days’ prior notice (except as otherwise set forth in Section 3.04), given not more than 30 days following such purchase date, to redeem all Notes that remain outstanding following such purchase at a price equal to the price offered to each other Holder in the Change of Control Offer plus accrued and unpaid interest thereon, if any, to, but excluding, the redemption date.
(i) The Issuer shall comply with the requirements of Rule 14e-1 under such the U.S. Exchange Act, and any other securities laws and regulations (and rules of any exchange on which the Notes are then listed) to the extent those laws, regulations or rules are applicable in connection with the repurchase of the Notes pursuant to a Change of Control Offer. To the extent that the provisions of any securities laws or regulations or exchange rules conflict with the Change of Control provisions of this Indenture, the Issuer shall comply with the applicable securities laws, regulations and rules and will not be deemed to have breached its obligations under this Indenture by virtue of such compliance.
(j) The provisions of this Section 4.11 relating to the Issuer’s obligation to make an offer to repurchase the Notes as a result of a Change of Control may be waived or modified with the consent of Holders of a majority in principal amount of the Notes prior to the occurrence of the Change of Control.
Appears in 1 contract
Offer to Repurchase Upon a Change of Control. If a Change of Control occurs, unless the Company has exercised its right to redeem all the Notes under Section 3.07, each Holder of Notes shall have the right to require the Company to repurchase all or any part (equal to $2,000 or integral multiples of $1,000 or an integral multiple in excess thereof) of that Holder’s Notes pursuant to a change of control offer on the terms set forth in this Indenture (a “Change of Control Offer”). In the Change of Control Offer, the Company shall offer a payment in cash equal to 101% of the aggregate principal amount of Notes repurchased plus accrued and unpaid interest and Liquidated Damages, if any, thereon, to the date of purchase (the “Change of Control Payment”). Within 30 days following any Change of ControlControl or, at the Company’s option, prior to the consummation of such Change of Control but after the public announcement thereof, the Company shall mail a notice to each Holder at its registered addressaddress (with a copy to the Trustee) describing the transaction or transactions that constitute the Change of Control and offering to repurchase Notes on the date specified in such notice. The notice shall contain all instructions and materials necessary to enable such Holder to tender Notes pursuant to the Change of Control Offer. Any Change of Control Offer shall be made to all Holders. The notice, which shall govern the terms of the Change of Control Offer, shall state: (1) that the Change of Control Offer is being made pursuant to this Section 4.104.08; (2) the Change of Control Payment and the date on which Notes tendered and accepted for payment shall be purchased, which date shall be at least no earlier than 30 days and no later than 60 days from the date such notice is mailed (other than as required by law) (the “Change of Control Payment Date”); (3) that any Note not tendered or accepted for payment shall continue to accrete or accrue interest; (4) that, unless the Company defaults in making such payment, any Note accepted for payment pursuant to the Change of Control Offer shall cease to accrete or accrue interest after the Change of Control Payment Date; (5) that Holders electing to have a Note purchased pursuant to any Change of Control Offer shall be required to surrender the Note, with the form entitled “Option of Holder to Elect Purchase” on the reverse of the Note completed, or transfer by book-entry transfer, to the Company, a depositary, if appointed by the Company, or the Paying Agent at the address specified in the notice at least three days before the Change of Control Payment Date; (6) that Holders shall be entitled to withdraw their election if the Company, the depositary or the Paying Agent, as the case may be, receives, not later than the Change of Control Payment Date, a notice setting forth the name of the Holder, the principal amount of the Note the Holder delivered for purchase and a statement that such Holder is withdrawing his election to have such Note purchased; (7) that Notes and portions of Notes purchased shall be in amounts equal to $2,000 or integral multiples of $1,000 or whole multiples of $1,000in excess thereof, except that if all of the Notes of a Holder are to be purchased, the entire outstanding amount of Notes held by such Holder, even if not a multiple of $1,000, shall be purchased; and (8) that Holders whose Notes were purchased only in part shall be issued new Notes equal in principal amount to the unpurchased portion of the Notes surrendered (or transferred by book-entry transfer), which unpurchased portion must be equal to $1,000 2,000 in principal amount or an integral multiple multiples of $1,000 in excess thereof. The Company shall comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws and regulations are applicable in connection with the repurchase of the Notes as a result of a Change of Control. To the extent that the provisions of any securities laws or regulations conflict with the Change of Control provisions of this Indenture, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under the Change of Control provisions of this Indenture by virtue of such conflict. On the Change of Control Payment Date, the Company shall, to the extent lawful:
(1) accept for payment all Notes or portions thereof properly tendered pursuant to the Change of Control Offer;
(2) deposit with the Paying Agent an amount equal to the Change of Control Payment in respect of all Notes or portions thereof so tendered; and
(3) 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. The Paying Agent shall promptly mail cause to be delivered to each Holder of Notes so tendered the Change of Control Payment for such Notes, and the Trustee shall promptly authenticate and mail (or cause to be transferred by book entry) to each Holder a new Note equal in principal amount to any unpurchased portion of the Notes surrendered, if any; provided that each such new Note shall be in a principal amount of equal to $1,000 2,000 or an integral multiple of $1,000 in excess thereof. The Company shall publicly announce the results of the Change of Control Offer on or as soon as practicable after the Change of Control Payment Date. The provisions set forth above that require the Company to make a Change of Control Offer following a Change of Control shall not be applicable regardless after a discharge of whether the Indenture pursuant to Section 8.01 or not any other provisions of this Indenture are applicabledefeasance from the Company’s legal obligations with respect to the Notes pursuant to Section 8.03 or Section 8.04. Notwithstanding anything to the contrary in this Section 4.104.08, 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 requirements set forth in this Section 4.10 4.08 and purchases all Notes validly tendered and not withdrawn under such Change of Control Offer.
Appears in 1 contract
Samples: Indenture (Owens-Illinois Group Inc)
Offer to Repurchase Upon a Change of Control. (a) If a Change of Control occurs, unless the Company has exercised its right to redeem the Notes under Section 3.07, each Holder of Notes shall will have the right to require the Company to repurchase all or any part (equal to $1,000 2,000 or an integral multiple thereofof $1,000 in excess of $2,000) of that Holder’s Notes pursuant to a change of control an offer on the terms set forth in this Indenture (a “Change of Control Offer”)) on the terms set forth in this Section. In the Change of Control Offer, the Company shall will offer a payment in cash (the “Change of Control Payment”) equal to not less than 101% of the aggregate principal amount of Notes repurchased plus accrued and unpaid interest and Liquidated Damagesinterest, if any, thereon, on the Notes repurchased to the date of purchase (the “Change of Control PaymentPayment Date”), subject to the rights of Holders of Notes on the relevant Record Date to receive interest due on the relevant Interest Payment Date. Within 30 days following any Change of Control, or, at the Company’s option, prior to such Change of Control but after it is publicly announced, the Company shall mail will provide a notice to each Holder at its registered address. The notice shall contain all instructions and materials necessary to enable such Holder to tender Notes pursuant to describing the transaction or transactions that constitute the Change of Control Offer. Any Change of Control Offer shall be made to all Holders. The notice, which shall govern the terms of the Change of Control Offer, shall state: and stating:
(1) that the Change of Control Offer is being made pursuant to this Section 4.10; 4.11 and that all Notes tendered will be accepted for payment;
(2) the purchase price and the Change of Control Payment and the date on Date, which Notes tendered and accepted for payment shall be purchased, which date shall be at least no earlier than 30 days and no later than 60 days from the date such notice is mailed (or delivered or such later date as is necessary to comply with requirements under the “Change of Control Payment Date”); Exchange Act;
(3) that any Note not tendered or accepted for payment shall will continue to accrete or accrue interest; ;
(4) that, unless the Company defaults in making such paymentthe payment of the Change of Control Payment, any Note all Notes accepted for payment pursuant to the Change of Control Offer shall will cease to accrete or accrue interest after the Change of Control Payment Date; ;
(5) that Holders electing to have a Note any Notes purchased pursuant to any a Change of Control Offer shall will be required to surrender the NoteNotes, with the form entitled “Option of Holder to Elect Purchase” on attached to the reverse of the Note Notes completed, or transfer the Notes by book-entry transfer, to the Company, a depositary, if appointed by the Company, or the Paying Agent at the address specified in the notice at least three days before prior to the close of business on the third Business Day preceding the Change of Control Payment Date; ;
(6) that Holders shall will be entitled to withdraw their election if the Company, the depositary or the Paying Agent, as the case may be, Agent receives, not later than the close of business on the second Business Day preceding the Change of Control Payment Date, a notice telegram, telex, facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Note the Holder Notes delivered for purchase purchase, and a statement that such Holder is withdrawing his election to have such Note all or a portion of the Notes purchased; and
(7) that Notes and portions of Notes purchased shall be in amounts of $1,000 or whole multiples of $1,000, except that if all of the Notes of a Holder are to be purchased, the entire outstanding amount of Notes held by such Holder, even if not a multiple of $1,000, shall be purchased; and (8) that Holders whose Notes were are being purchased only in part shall will be issued new Notes equal in principal amount to the unpurchased portion of the Notes surrendered (or transferred by book-entry transfer), which unpurchased portion must be equal to $1,000 2,000 in principal amount or an integral multiple thereof. of $1,000 in excess of $2,000.
(b) The Company shall will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such those laws and regulations are applicable in connection with the repurchase of the Notes as a result of a Change of Control. To the extent that the provisions of any securities laws or regulations conflict with the Change of Control provisions of this the Indenture, the Company shall will comply with the applicable securities laws and regulations and shall will not be deemed to have breached its obligations under the Change of Control provisions of this Indenture Section by virtue of such conflict. compliance.
(c) On the Change of Control Payment Date, the Company shallwill, to the extent lawful:
(1) accept for payment all Notes or portions thereof of Notes properly tendered pursuant to the Change of Control Offer;
(2) deposit with the Paying Agent an amount equal to the Change of Control Payment in respect of all Notes or portions thereof so of Notes properly tendered; and
(3) deliver or cause to be delivered to the Trustee the Notes so properly accepted together with an Officers’ Certificate stating stating, the aggregate principal amount of Notes or portions thereof of Notes being purchased by the Company. .
(d) The Paying Agent shall will promptly mail or wire transfer to each Holder of Notes so properly tendered the Change of Control Payment for such NotesNotes (or, if all the Notes are then in global form, make such payment through the facilities of the Depositary), and the Trustee shall will promptly authenticate and mail (or cause to be transferred by book entry) to each Holder a new Note equal in principal amount to any unpurchased portion of the Notes surrendered, if any; provided that each such new Note shall will be in a principal amount of $1,000 2,000 or an integral multiple thereofof $1,000 in excess of $2,000. Any Note so accepted for payment will cease to accrue interest on and after the Change of Control Payment Date unless the Company defaults in making the Change of Control Payment; in which case interest will continue to accrue on Notes accepted for payment until the Change of Control Payment is made.
(e) The Company shall will publicly announce the results of the Change of Control Offer on or as soon as practicable after the Change of Control Payment Date.
(f) Notwithstanding anything to the contrary in this Section, the Company will not be required to make a Change of Control Offer upon a Change of Control if (i) a third party makes the Change of Control Offer in the manner, at the price, at the times and otherwise in compliance with the requirements set forth in the Indenture applicable to a Change of Control Offer made by the Company and purchases all Notes properly tendered and not withdrawn under the Change of Control Offer, or (ii) the Company has given notice of redemption pursuant to Section 3.01 of the Indenture unless and until there is a Default in payment of the applicable redemption price.
(g) A Change of Control Offer may be made in advance of a Change of Control, and conditioned upon the occurrence of such Change of Control, if a definitive agreement is in place for the Change of Control at the time of making the Change of Control Offer. Notes repurchased by the Company pursuant to a Change of Control Offer will have the status of Notes issued but not outstanding or will be retired and cancelled, at the Company’s option. Notes purchased by a third party pursuant to clause (f) of this Section will have the status of Notes issued and outstanding.
(h) In the event that Holders of at least 90% of the aggregate principal amount of the outstanding Notes accept a Change of Control Offer and the Company (or any third party making such Change of Control Offer, in lieu of the Company, as described in paragraph (f) of this Section) purchases all of the Notes held by such Holders, the Company will have the right, upon not less than 30 nor more than 60 days’ prior notice, given not more than 30 days following a Change of Control Payment Date, to redeem all, but not less than all, of the Notes that remain outstanding at a redemption price equal to the Change of Control Payment plus, to the extent not included in the Change of Control Payment, accrued and unpaid interest, if any, on the Notes that remain outstanding, to the date of redemption (subject to the right of Holders on the relevant record date to receive interest due on the relevant Interest Payment Date).
(i) The provisions set forth above of this Section that require the Company to make a Change of Control Offer following a Change of Control shall will be applicable regardless of whether or not any other provisions of this the Indenture are applicable. Notwithstanding anything to the contrary in this Section 4.10, 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 requirements set forth in this Section 4.10 and purchases all Notes validly tendered and not withdrawn under such Change of Control Offer.
Appears in 1 contract
Samples: Indenture (PDC Energy, Inc.)
Offer to Repurchase Upon a Change of Control. (a) If a Change of Control Triggering Event occurs, unless the Company has exercised its right to redeem the Notes under Section 3.07, each Holder of Notes shall will have the right to require that the Company to repurchase Issuer purchase all or any part (equal to in amounts of $2,000 or whole multiples of $1,000 or an integral multiple in excess thereof) of that such Holder’s Notes pursuant to a change of control the offer on described below (the terms set forth in this Indenture (a “Change of Control Offer”). In the Change of Control Offer, the Company shall Issuer will offer to purchase all of the Notes, at a payment purchase price (the “Change of Control Purchase Price”) in cash in an amount equal to 101% (provided that, if such Change of Control Triggering Event occurs prior to delivery by the Issuer of a Satisfaction Notification to the trustee on or before the Step-Up Notice Date and an Expected SPT Satisfaction Certificate is not delivered with respect to each Sustainability Performance Target in connection with the related Change of Control as described in Section 2.16, then such purchase price shall be increased by 0.0833% for each Sustainability Performance Target not set forth in such Expected SPT Satisfaction Certificate as expected to be satisfied on or before the Step-Up Notice Date) of the aggregate principal amount of Notes repurchased the Notes, plus accrued and unpaid interest and Liquidated Damagesinterest, if any, thereon, to the date of purchase (the “Change of Control PaymentPurchase Date”).
(b) Not later than 30 days after the date upon which any Change of Control Triggering Event occurs with respect to the Notes, the Issuer must notify the Trustee in writing and give notice of such event to each Holder of Notes, at such Holder’s address appearing in the security register or otherwise deliver notice in accordance with the Applicable Procedures (the “Change of Control Purchase Notice”). Within 30 days following any Change of Control, the Company shall mail a notice to each Holder at its registered address. The notice shall contain all instructions and materials necessary to enable such Holder to tender Notes pursuant to the Change of Control Offer. Any Purchase Notice must state, among other things:
(i) that a Change of Control Offer shall be made Triggering Event has occurred or is expected to all Holders. The notice, which shall govern occur and the terms date or expected date of such event;
(ii) the circumstances and relevant facts regarding such Change of Control Offer, shall state: Triggering Event;
(1) that the Change of Control Offer is being made pursuant to this Section 4.10; (2iii) the Change of Control Payment Purchase Price and the date on Change of Control Purchase Date, which Notes tendered and accepted for payment shall be purchased, which date shall be at least fixed by the Issuer on a Business Day no earlier than 30 days and no nor later than 60 days from the date such the notice is mailed (or otherwise delivered, or such later date as is necessary to comply with requirements under the “Exchange Act; provided that the Change of Control Payment Date”); Purchase Date may not occur prior to the Change of Control Triggering Event and such notice may be contingent on the occurrence of the Change of Control Triggering Event;
(3iv) that any Note not tendered or accepted for payment shall will continue to accrete or accrue interest; ;
(4v) that, unless the Company Issuer defaults in making such paymentthe payment of the Change of Control Purchase Price, any Note Notes accepted for payment pursuant to the Change of Control Offer shall cease to accrete or accrue interest after the Change of Control Payment Purchase Date; and
(5vi) other procedures that a Holder of Notes must follow to accept a Change of Control Offer or to withdraw acceptance of the Change of Control Offer.
(c) Upon receipt by the Issuer of the proper tender of Notes, the Holder of the Note in respect of which such proper tender was made shall (unless the tender of such Note is properly withdrawn at least one Business Day prior to the Change of Control Purchase Date) thereafter be entitled to receive solely the Change of Control Purchase Price with respect to such Note. On the Change of Control Purchase Date, any such Note surrendered for purchase in accordance with the foregoing provisions and not withdrawn shall be accepted for payment by the Issuer at the Change of Control Purchase Price; provided, however, that installments of interest whose Stated Maturity is on or prior to the Change of Control Purchase Date shall be payable to the Holders of such Notes, registered as such on the relevant Change of Control Purchase Date (or on the relevant record dates in the case of Definitive Notes) according to the terms and the provisions of Section 2.03. If any Note accepted for payment in accordance with the provisions of this Section 4.07 shall not be paid as provided in Section 4.07(d), the principal thereof (and premium, if any, thereon) shall, until paid, bear interest from the Change of Control Purchase Date at the rate borne by such Note. Holders electing to have a Note Notes purchased pursuant to any Change of Control Offer shall will be required to surrender the Note, with the form entitled “Option of Holder such Notes to Elect Purchase” on the reverse of the Note completed, or transfer by book-entry transfer, to the Company, a depositary, if appointed by the Company, or the Paying Agent at the address specified in the notice Change of Control Purchase Notice at least three days before one Business Day prior to the Change of Control Payment Purchase Date; (6) . Any Note that Holders is to be purchased only in part shall be entitled surrendered to withdraw their election a Paying Agent at the office of such Paying Agent (with, if the CompanyIssuer, the depositary Registrar or the Paying AgentTrustee so require, due endorsement by, or a written instrument of transfer in form satisfactory to the Issuer and the Registrar or the Trustee, as the case may be, receivesduly executed by, the Holder thereof or such Holder’s attorney duly authorized in writing), and the Issuer shall execute and the Trustee shall authenticate and deliver to the Holder of such Note, without service charge, one or more new Notes of any authorized denomination as requested by such Holder in an aggregate principal amount equal to, and in exchange for, the portion of the principal amount of the Note so surrendered that is not purchased.
(d) The Issuer shall (i) not later than the Change of Control Payment Purchase Date, accept for payment Notes or portions thereof tendered pursuant to the Change of Control Offer and not validly withdrawn, (ii) not later than 1:00 p.m. (New York time) on the Business Day following the Change of Control Purchase Date, deposit with the Trustee or with a Paying Agent an amount of money in same day funds sufficient to pay the aggregate Change of Control Purchase Price of all the Notes or portions thereof which have been so accepted for payment and (iii) not later than 1:00 p.m. (New York time) on the Business Day following the Change of Control Purchase Date, deliver to the Paying Agent an Officers’ Certificate stating the Notes or portions thereof accepted for payment by the Issuer. The Paying Agent shall promptly mail or deliver to Holders of Notes so accepted payment in an amount equal to the Change of Control Purchase Price of the Notes purchased from each such Holder, and the Issuer shall execute and the Trustee shall promptly authenticate and mail or deliver to such Holders a new Note equal in principal amount to any unpurchased portion of the Note surrendered. Any Notes not so accepted shall be promptly mailed or delivered by the Paying Agent at the Issuer’s expense to the Holder thereof. The Issuer will publicly announce the results of the Change of Control Offer on the Change of Control Purchase Date. For purposes of this Section 4.07, the Issuer shall choose a Paying Agent which shall not be the Issuer.
(e) A tender made in response to a Change of Control Purchase Notice may be withdrawn if the Issuer receives, not later than one Business Day prior to the Change of Control Purchase Date, a notice setting forth telegram, telex, facsimile transmission or letter, specifying, as applicable:
(i) the name of the Holder, ;
(ii) the certificate number of the Note in respect of which such notice of withdrawal is being submitted;
(iii) the principal amount of the Note the Holder (which shall be $2,000 or whole multiples of $1,000 in excess thereof) delivered for purchase and by the Issuer as to which such notice of withdrawal is being submitted;
(iv) a statement that such Holder is withdrawing his election to have such principal amount of such Note purchased; and
(7v) that Notes and portions the principal amount, if any, of Notes purchased such Note (which shall be in amounts of $1,000 2,000 or whole multiples of $1,0001,000 in excess thereof) that remains subject to the original Change of Control Purchase Notice and that has been or will be delivered for purchase by the Issuer. Notwithstanding anything herein to the contrary, except in the case of Notes held in book-entry form, Notes must be tendered and/or withdrawn in accordance with Applicable Procedures.
(f) Subject to applicable escheat and abandoned property laws, the Trustee and the Paying Agent shall return to the Issuer, upon its request, any cash that remains unclaimed for two years after a Change of Control Purchase Date together with interest or dividends, if any, thereon (subject to Section 7.01(f)), held by them for the payment of the Change of Control Purchase Price; and the Holder of such tendered and accepted Note shall thereafter look only to the Issuer for payment thereof, and all liability of the Trustee or such Paying Agent with respect to such cash, and all liability of the Issuer as trustee thereof, shall thereupon cease; provided, however, that (x) to the extent that the aggregate amount of cash deposited by the Issuer pursuant to clause (ii) of paragraph (d) of this Section 4.07 exceeds the aggregate Change of Control Purchase Price of the Notes of a Holder are or portions thereof to be purchased, then the entire outstanding amount of Notes held by Trustee shall hold such Holder, even if not a multiple of $1,000, shall be purchased; excess for the Issuer and (8) that Holders whose Notes were purchased only y) unless otherwise directed by the Issuer in part writing, promptly after the Business Day following the Change of Control Purchase Date the Trustee shall be issued new Notes equal in principal amount return any such excess to the unpurchased portion of the Notes surrendered Issuer together with interest, if any, thereon (or transferred by book-entry transfersubject to Section 7.01(f), which unpurchased portion must be equal to $1,000 in principal amount or an integral multiple thereof. ).
(g) The Company Issuer shall comply with the requirements of applicable tender offer rules, including Rule 14e-1 under the Exchange Act Act, and any other applicable securities laws and or regulations thereunder to the extent such laws and regulations are applicable in connection with the repurchase of the Notes as a result of a Change of ControlControl Offer. To the extent that the provisions of any securities laws or regulations conflict with the Change of Control provisions of this IndentureSection 4.07, the Company Issuer shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under the Change of Control provisions of this Indenture Section 4.07 by virtue of such conflict. On the Change of Control Payment Date, the Company shall, to the extent lawful:
(1) accept for payment all Notes or portions thereof properly tendered pursuant to the Change of Control Offer;
(2) deposit with the Paying Agent an amount equal to the Change of Control Payment in respect of all Notes or portions thereof so tendered; and
(3) 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. The Paying Agent shall promptly mail to each Holder of Notes so tendered the Change of Control Payment for such Notes, and the Trustee shall promptly authenticate and mail (or cause to be transferred by book entry) to each Holder a new Note equal in principal amount to any unpurchased portion of the Notes surrendered, if any; provided that each such new Note shall be in a principal amount of $1,000 or an integral multiple thereof. The Company shall publicly announce the results of the Change of Control Offer on or as soon as practicable after the Change of Control Payment Date. The provisions set forth above that require the Company to make a Change of Control Offer following a Change of Control shall be applicable regardless of whether or not any other provisions of this Indenture are applicable. Notwithstanding anything to the contrary in this Section 4.10, 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 requirements set forth in this Section 4.10 and purchases all Notes validly tendered and not withdrawn under such Change of Control Offer.
Appears in 1 contract
Samples: Indenture (Kinetik Holdings Inc.)
Offer to Repurchase Upon a Change of Control. (a) If a Change of Control occurs, unless the Company has exercised its right to redeem the Notes under Section 3.07, each Holder of Notes shall will have the right to require the Company to repurchase all or any part (equal to $1,000 2,000 or an integral multiple thereofof $1,000 in excess of $2,000) of that Holder’s Notes pursuant to a change of control an offer on the terms set forth in this Indenture (a “Change of Control Offer”)) on the terms set forth in this Section. In the Change of Control Offer, the Company shall will offer a payment in cash (the “Change of Control Payment”) equal to not less than 101% of the aggregate principal amount of Notes repurchased plus accrued and unpaid interest and Liquidated Damagesinterest, if any, thereon, on the Notes repurchased to the date of purchase (the “Change of Control PaymentPayment Date”), subject to the rights of Holders of Notes on the relevant Regular Record Date to receive interest due on the relevant Interest Payment Date. Within 30 days following any Change of Control, or, at the Company’s option, prior to such Change of Control but after it is publicly announced, the Company shall will mail a notice to each Holder at its registered address. The notice shall contain all instructions and materials necessary to enable such Holder to tender Notes pursuant to or otherwise notify Holders in accordance with the provisions of Section 11.03(b) describing the transaction or transactions that constitute the Change of Control Offer. Any Change of Control Offer shall be made to all Holders. The notice, which shall govern the terms of the Change of Control Offer, shall state: and stating:
(1) that the Change of Control Offer is being made pursuant to this Section 4.10; 4.11 and that all Notes tendered will be accepted for payment;
(2) the purchase price and the Change of Control Payment and the date on Date, which Notes tendered and accepted for payment shall be purchased, which date shall be at least no earlier than 30 days and no later than 60 days from the date such notice is mailed (or such later date as is necessary to comply with requirements under the “Change of Control Payment Date”); Exchange Act;
(3) that any Note not tendered or accepted for payment shall will continue to accrete or accrue interest; ;
(4) that, unless the Company defaults in making such paymentthe payment of the Change of Control Payment, any Note all Notes accepted for payment pursuant to the Change of Control Offer shall will cease to accrete or accrue interest after the Change of Control Payment Date; ;
(5) that Holders electing to have a Note any Notes purchased pursuant to any a Change of Control Offer shall will be required to surrender the NoteNotes, with the form entitled “Option of Holder to Elect Purchase” on attached to the reverse of the Note Notes completed, or transfer the Notes by book-entry transfer, to the Company, a depositary, if appointed by the Company, or the Paying Agent at the address specified in the notice at least three days before prior to the close of business on the third Business Day preceding the Change of Control Payment Date; ;
(6) that Holders shall will be entitled to withdraw their election if the Company, the depositary or the Paying Agent, as the case may be, Agent receives, not later than the close of business on the second Business Day preceding the Change of Control Payment Date, a notice facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Note the Holder Notes delivered for purchase purchase, and a statement that such Holder is withdrawing his its election to have such Note all or a portion of the Notes purchased; and
(7) that Notes and portions of Notes purchased shall be in amounts of $1,000 or whole multiples of $1,000, except that if all of the Notes of a Holder are to be purchased, the entire outstanding amount of Notes held by such Holder, even if not a multiple of $1,000, shall be purchased; and (8) that Holders whose Notes were are being purchased only in part shall will be issued new Notes equal in principal amount to the unpurchased portion of the Notes surrendered (or transferred by book-entry transfer), which unpurchased portion must be equal to $1,000 2,000 in principal amount or an integral multiple thereof. of $1,000 in excess of $2,000.
(b) The Company shall will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such those laws and regulations are applicable in connection with the repurchase of the Notes as a result of a Change of Control. To the extent that the provisions of any securities laws or regulations conflict with the Change of Control provisions of this the Indenture, the Company shall will comply with the applicable securities laws and regulations and shall will not be deemed to have breached its obligations under the Change of Control provisions of this Indenture Section by virtue of such conflict. compliance.
(c) On the Change of Control Payment Date, the Company shallwill, to the extent lawful:
(1) accept for payment all Notes or portions thereof of Notes properly tendered pursuant to the Change of Control Offer;
(2) deposit with the Paying Agent an amount equal to the Change of Control Payment in respect of all Notes or portions thereof so of Notes properly tendered; and
(3) deliver or cause to be delivered to the Trustee the Notes so properly accepted together with an Officers’ Certificate stating the aggregate principal amount of Notes or portions thereof of Notes being purchased by the Company. .
(d) The Paying Agent shall will promptly mail or wire transfer to each Holder of Notes so properly tendered the Change of Control Payment for such NotesNotes (or, if all the Notes are then in global form, make such payment through the facilities of the Depositary), and the Trustee shall will promptly authenticate and mail (or cause to be transferred by book entry) to each Holder a new Note equal in principal amount to any unpurchased portion of the Notes surrendered, if any; provided that each such new Note shall will be in a principal amount of $1,000 2,000 or an integral multiple thereofof $1,000 in excess of $2,000. Any Note so accepted for payment will cease to accrue interest on and after the Change of Control Payment Date unless the Company defaults in making the Change of Control Payment.
(e) The Company shall will publicly announce the results of the Change of Control Offer on or as soon as practicable after the Change of Control Payment Date.
(f) Notwithstanding anything to the contrary in this Section, the Company will not be required to make a Change of Control Offer upon a Change of Control if (i) a third party makes the Change of Control Offer in the manner, at the price, at the times and otherwise in compliance with the requirements set forth in the Indenture applicable to a Change of Control Offer made by the Company and purchases all Notes properly tendered and not withdrawn under the Change of Control Offer, or (ii) the Company has given notice of redemption pursuant to Section 3.01 of the Indenture unless and until there is a Default in payment of the applicable redemption price.
(g) A Change of Control Offer may be made in advance of a Change of Control, and conditioned upon the occurrence of such Change of Control, if a definitive agreement is in place for the Change of Control at the time of making the Change of Control Offer. Notes repurchased by the Company pursuant to a Change of Control Offer will have the status of Notes issued but not outstanding or will be retired and cancelled, at the Company’s option. Notes purchased by a third party pursuant to clause (f) of this Section will have the status of Notes issued and outstanding.
(h) In the event that Holders of at least 90% of the aggregate principal amount of the outstanding Notes accept a Change of Control Offer and the Company (or any third party making such Change of Control Offer, in lieu of the Company, as described in paragraph (f) of this Section) purchases all of the Notes held by such Holders, the Company will have the right, upon not less than 30 nor more than 60 days’ prior notice, given not more than 30 days following a Change of Control Payment Date, to redeem all, but not less than all, of the Notes that remain outstanding at a redemption price equal to the Change of Control Payment plus, to the extent not included in the Change of Control Payment, accrued and unpaid interest, if any, on the Notes that remain outstanding, to the date of redemption (subject to the right of Holders on the relevant Regular Record date to receive interest due on the relevant Interest Payment Date).
(i) The provisions set forth above of this Section that require the Company to make a Change of Control Offer following a Change of Control shall will be applicable regardless of whether or not any other provisions of this the Indenture are applicable. Notwithstanding anything to the contrary in this Section 4.10, 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 requirements set forth in this Section 4.10 and purchases all Notes validly tendered and not withdrawn under such Change of Control Offer.
Appears in 1 contract
Samples: Indenture (SYNERGY RESOURCES Corp)
Offer to Repurchase Upon a Change of Control. If (a) Upon the occurrence of a Change of Control occursTriggering Event, unless the Company has previously or concurrently exercised its right to redeem all of the Notes under pursuant to Section 3.073.01, each Holder of Notes shall have the right to require the Company to repurchase all or any part (equal to $1,000 or an integral multiple thereof) of that such Holder’s Notes pursuant to at a change of control offer on the terms set forth in this Indenture (a “Change of Control Offer”). In the Change of Control Offer, the Company shall offer a payment purchase price in cash equal to 101101.0% of the aggregate principal amount of the Notes repurchased plus accrued and unpaid interest and Liquidated Damagesinterest, if any, thereon, to the date of purchase (subject to the right of Holders of record on the relevant Regular Record Date to receive interest due on an Interest Payment Date falling on or prior to the date of purchase).
(b) Prior to or within 30 days following any Change of Control Triggering Event, unless the Company has previously or concurrently exercised its right to redeem all of the Notes pursuant to Section 3.01, the Company shall deliver a notice (the “Change of Control Offer”) to each Holder or otherwise give notice in accordance with the Applicable Procedures of the Depositary, with a copy to the Trustee, stating:
(1) that a Change of Control Triggering Event has occurred or, if the Change of Control Offer is being made in advance of a Change of Control Triggering Event, that a Change of Control Triggering Event is expected to occur, and that such Holder has, or upon such occurrence will have, the right to require the Company to purchase such Holder’s Notes at a purchase price in cash equal to 101.0% of the principal amount of such Notes plus accrued and unpaid interest, if any, to the date of purchase (subject to the right of Holders of record on a Regular Record Date to receive interest on the relevant Interest Payment Date) (the “Change of Control Payment”). Within 30 ;
(2) the repurchase date (which shall be no earlier than ten days following any nor, except in the case of a conditional Change of Control Offer made in advance of a Change of Control, the Company shall mail a notice to each Holder at its registered address. The notice shall contain all instructions and materials necessary to enable such Holder to tender Notes pursuant to the Change of Control Offer. Any Change of Control Offer shall be made to all Holders. The notice, which shall govern the terms of the Change of Control Offer, shall state: (1) that the Change of Control Offer is being made pursuant to this Section 4.10; (2) the Change of Control Payment and the date on which Notes tendered and accepted for payment shall be purchased, which date shall be at least 30 days and no later than 60 days from the date such notice is mailed delivered) (the “Change of Control Payment Date”); ;
(3) if such notice is delivered prior to the occurrence of a Change of Control or Change of Control Triggering Event, that any Note not tendered or accepted for payment shall continue to accrete or accrue interest; (4) that, unless the Company defaults in making such payment, any Note accepted for payment pursuant to the Change of Control Offer shall cease to accrete or accrue interest after is conditional on the occurrence of a Change of Control Payment Date; Triggering Event (5) that Holders electing to have and a Note purchased pursuant to any Change of Control Offer shall be required to surrender the Note, with the form entitled “Option of Holder to Elect Purchase” on the reverse of the Note completed, or transfer by book-entry transfer, notice is delivered to the Company, a depositary, if appointed Trustee documenting satisfaction or failure of such condition); and
(4) the procedures determined by the Company, or the Paying Agent at the address specified in the notice at least three days before the Change of Control Payment Date; (6) that Holders shall be entitled to withdraw their election if the Company, the depositary or the Paying Agent, as the case may be, receives, not later than the Change of Control Payment Date, a notice setting forth the name of the Holder, the principal amount of the Note the Holder delivered for purchase and a statement that such Holder is withdrawing his election to have such Note purchased; (7) that Notes and portions of Notes purchased shall be in amounts of $1,000 or whole multiples of $1,000, except that if all of the Notes of a Holder are to be purchased, the entire outstanding amount of Notes held by such Holder, even if not a multiple of $1,000, shall be purchased; and (8) that Holders whose Notes were purchased only in part shall be issued new Notes equal in principal amount to the unpurchased portion of the Notes surrendered (or transferred by book-entry transfer), which unpurchased portion must be equal to $1,000 in principal amount or an integral multiple thereof. The Company shall comply consistent with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws and regulations are applicable in connection with the repurchase of the Notes as a result of a Change of Control. To the extent that the provisions of any securities laws or regulations conflict with the Change of Control provisions of this Indenture, the Company shall comply with the applicable securities laws and regulations and shall not be deemed that a Holder must follow in order to have breached its obligations under the Change of Control provisions of this Indenture by virtue of such conflictNotes repurchased. On the Change of Control Payment Date, the Company shall, to the extent lawful:
(1) accept for payment all Notes or portions thereof of Notes properly tendered and not withdrawn pursuant to the Change of Control Offer;
(2) deposit with the applicable Paying Agent an amount equal to the Change of Control Payment in respect of all Notes or portions thereof so tenderedof Notes properly tendered and not withdrawn; and
(3) deliver or cause to be delivered to the Trustee for cancellation the Notes so accepted together with an Officers’ Officer’s Certificate stating the aggregate principal amount of Notes or portions thereof of Notes being purchased by the CompanyCompany in accordance with the terms of this covenant. The applicable Paying Agent shall promptly mail deliver to each Holder of Notes so properly tendered and not withdrawn the Change of Control Payment for such Notes, and the Trustee shall will promptly authenticate and mail deliver (or cause to be transferred by book entry) to each Holder a new Note equal in principal amount to any unpurchased portion of the Notes surrendered, if any; provided , in accordance with Section 3.04(e).
(c) Prior to making a Change of Control Payment, and as a condition to such payment (1) the requisite holders of each issue of Indebtedness issued under an indenture or other agreement that each may be violated by such new Note payment shall be in a principal amount have consented to such Change of $1,000 or an integral multiple thereof. The Company shall publicly announce Control Payment being made and waived the results event of default, if any, caused by the Change of Control Offer on or as soon as practicable after (2) the Company will repay all outstanding Indebtedness issued under an indenture or other agreement that may be violated by a Change of Control Payment or the Company must offer to repay all such Indebtedness, and make payment to the holders of such Indebtedness that accept such offer and obtain waivers of any event of default arising under the relevant indenture or other agreement from the remaining holders of such Indebtedness. The Company covenants to effect such repayment or obtain such consent prior to making a Change of Control Payment, it being a Default of this Section 4.14 if the Company fails to comply with this Section 4.14(c).
(d) If the Change of Control Payment Date is on or after a Regular Record Date and on or before the related Interest Payment Date. The provisions set forth above that require the Company to make a Change of Control Offer following a Change of Control , any accrued and unpaid interest, if any, shall be applicable regardless of whether or not any other provisions of this Indenture are applicable. Notwithstanding anything paid on the relevant Interest Payment Date to the contrary Person in this Section 4.10, whose name a Note is registered at the close of business on such Regular Record Date.
(e) The Company shall not be required to make a Change of Control Offer upon a Change of Control Triggering Event if a third party makes the Change of Control Offer in the manner, at the times and otherwise in compliance with the requirements set forth in this Section 4.10 Indenture applicable to a Change of Control Offer made by the Company and purchases all Notes validly properly tendered and not withdrawn under such Change of Control Offer.
(f) The Company or a third party may, at its option, redeem the Notes upon not less than ten nor more than 60 days’ notice, given not more than 30 days following the consummation of the Change of Control Offer, at a redemption price of 101.0% of the aggregate principal amount of the Notes redeemed, plus accrued and unpaid interest, if any, to the applicable redemption date (subject to the right of holders of record on the relevant record date to receive interest due on an interest payment date falling on or prior to such redemption date), in connection with the consummation of a Change of Control if at least 90.0% of the Notes outstanding prior to the Change of Control Payment Date are purchased pursuant to a Change of Control Offer with respect to such Change of Control.
(g) Notwithstanding anything to the contrary herein, a Change of Control Offer may be made in advance of a Change of Control Triggering Event, conditional upon such Change of Control Triggering Event.
Appears in 1 contract
Samples: Indenture (Viasat Inc)
Offer to Repurchase Upon a Change of Control. (a) If a Change of Control occurs, unless the Company has previously or concurrently exercised its right to redeem all of the Notes under pursuant to Section 3.07, each Holder of Notes shall will have the right to require the Company to repurchase all or any part (equal to $1,000 2,000 or an integral multiple thereofof $1,000 in excess of $2,000) of that such Holder’s Notes pursuant to at a change of control offer on the terms set forth in this Indenture (a “Change of Control Offer”). In the Change of Control Offer, the Company shall offer a payment purchase price in cash equal to 101% of the aggregate principal amount of the Notes repurchased plus accrued and unpaid interest and Liquidated Damagesinterest, if any, thereon, to the date of purchase (subject to the right of Holders of record on the relevant record date to receive interest due on the relevant Interest Payment Date).
(b) Within 30 days following any Change of Control, unless the Company has previously or concurrently exercised its right to redeem all of the Notes pursuant to Section 3.07, the Company shall mail a notice (the “Change of Control Offer”) to each Holder, with a copy to the Trustee, stating, among other things:
(1) that a Change of Control has occurred and that such Holder has the right to require us to purchase such Holder’s Notes at a purchase price in cash equal to 101% of the principal amount of such Notes plus accrued and unpaid interest, if any, to the date of purchase (subject to the right of Holders of record on a record date to receive interest on the relevant Interest Payment Date) (the “Change of Control Payment”). Within 30 days following any Change of Control, the Company shall mail a notice to each Holder at its registered address. The notice shall contain all instructions and materials necessary to enable such Holder to tender Notes pursuant to the Change of Control Offer. Any Change of Control Offer shall be made to all Holders. The notice, which shall govern the terms of the Change of Control Offer, shall state: (1) that the Change of Control Offer is being made pursuant to this Section 4.10; ;
(2) the Change of Control Payment and the repurchase date on (which Notes tendered and accepted for payment shall be purchased, which date shall be at least no earlier than 30 days and no nor later than 60 days from the date such notice is mailed mailed) (the “Change of Control Payment Date”); ;
(3) that any Note not properly tendered or accepted for payment shall will remain outstanding and continue to accrete or accrue interest; ;
(4) that, that unless the Company defaults in making such paymentthe payment of the Change of Control Payment, any Note all Notes accepted for payment pursuant to the Change of Control Offer shall will cease to accrete or accrue interest after on the Change of Control Payment Date; ;
(5) that Holders electing to have a Note any Notes in certificated form purchased pursuant to any a Change of Control Offer shall will be required to surrender the Notesuch Notes, with the form entitled “Option of Holder to Elect Purchase” on the reverse of the Note such Notes completed, or transfer by book-entry transfer, to the Company, a depositary, if appointed by paying agent specified in the Company, or the Paying Agent notice at the address specified in the notice at least three days before prior to the close of business on the third Business Day preceding the Change of Control Payment Date; ;
(6) that Holders shall will be entitled to withdraw their tendered Notes and their election if to require the CompanyCompany to purchase such Notes, provided, that the depositary or the Paying Agent, as the case may be, paying agent receives, not later than the close of business on the third Business Day preceding the Change of Control Payment Date, a notice setting forth telegram, telex, facsimile transmission or letter complying with the name requirements of the Holder, the principal amount of the Note the Holder delivered for purchase and a statement that such Holder is withdrawing his election to have such Note purchased; Section 4.15(f) below;
(7) that Notes and portions of Notes purchased shall be in amounts of $1,000 or whole multiples of $1,000, except that if all the Company is repurchasing a portion of the Notes Note of a Holder are to be purchasedany Holder, the entire outstanding amount of Notes held by such Holder, even if not a multiple of $1,000, shall be purchased; and (8) that Holders whose Notes were purchased only in part shall Holder will be issued a new Notes Note equal in principal amount to the unpurchased portion of the Notes surrendered (or transferred by book-entry transfer)Note surrendered, which provided, that the unpurchased portion of the Note must be equal to a minimum principal amount of $2,000 and an integral multiple of $1,000 in principal amount or an integral multiple thereof. The Company shall comply excess of $2,000; and
(8) other procedures determined by the Company, consistent with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws and regulations are applicable in connection with the repurchase of the Notes as a result of a Change of Control. To the extent that the provisions of any securities laws or regulations conflict with the Change of Control provisions of this Indenture, the Company shall comply with the applicable securities laws and regulations and shall not be deemed that a Holder must follow to have breached its obligations under the Change of Control provisions of this Indenture by virtue of such conflict. Notes repurchased.
(c) On the Change of Control Payment Date, the Company shallwill, to the extent lawful:
(1) accept for payment all Notes or portions thereof of Notes (in a minimum principal amount of $2,000 and integral multiples of $1,000 in excess of $2,000) properly tendered pursuant to the Change of Control OfferOffer and not properly withdrawn;
(2) deposit with the Paying Agent paying agent an amount equal to the Change of Control Payment in respect of all Notes or portions thereof so tenderedof Notes accepted for payment, provided, however, that the funds once deposited are to be uninvested until disbursed pursuant to this Section 4.15; and
(3) 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 of Notes being purchased by the Company. .
(d) The Paying Agent shall paying agent will promptly mail or deliver to each Holder of Notes so tendered accepted for payment the Change of Control Payment for such Notes, and the Trustee shall will promptly authenticate and mail (or cause to be transferred by book entry) to each Holder a new Note equal in principal amount to any unpurchased portion of the Notes surrendered, if any; provided provided, that each such new Note shall will be in a minimum principal amount of $1,000 2,000 or an integral multiple thereof. The Company shall publicly announce the results of the Change $1,000 in excess of Control Offer on or as soon as practicable after $2,000.
(e) If the Change of Control Payment Date is on or after an interest record date and on or before the related Interest Payment Date. The provisions set forth above that require the Company to make a Change of Control Offer following a Change of Control shall , any accrued and unpaid interest, will be applicable regardless of whether or not any other provisions of this Indenture are applicable. Notwithstanding anything paid to the contrary Person in this Section 4.10, the Company shall not be required to make whose name a Change of Control Offer upon a Change of Control if a third party makes the Change of Control Offer in the manner, Note is registered at the times close of business on such record date, and otherwise in compliance with no further interest will be payable to Holders who tender their Notes pursuant to the requirements set forth in this Section 4.10 and purchases all Notes validly tendered and not withdrawn under such Change of Control Offer.
Appears in 1 contract
Samples: Indenture (SM Energy Co)
Offer to Repurchase Upon a Change of Control. (a) If a Change of Control occurs, unless the Company has exercised its right given (or if a Change of Control occurs prior to redeem January 15, 2015, within 60 days thereafter will have given) notice of redemption of all the Notes under pursuant to Section 3.073.07(d), each Holder of Notes shall will have the right to require that the Company to repurchase purchase all or any part (equal to in amounts of $2,000 or whole multiples of $1,000 or an integral multiple in excess thereof) of that such Holder’s Notes pursuant to a change of control the offer on described below (the terms set forth in this Indenture (a “Change of Control Offer”). In the Change of Control Offer, the Company shall will offer to purchase all of the Notes, at a payment purchase price (the “Change of Control Purchase Price”) in cash in an amount equal to 101% of the aggregate principal amount of Notes repurchased such Notes, plus accrued and unpaid interest and Liquidated Damagesinterest, if any, thereon, to the date of purchase (the “Change of Control PaymentPurchase Date”), subject to the rights of Holders of record on relevant record dates to receive interest due on the relevant interest payment date. Any Change of Control Offer that is made prior to the occurrence of a Change of Control may at the Company’s discretion be subject to one or more conditions precedent, including the occurrence of a Change of Control.
(b) Within 30 days following after any Change of ControlControl or, at the Company’s option, prior to such Change of Control but after it is publicly announced , unless the Company has given (or if a Change of Control occurs prior to January 15, 2015, within 60 days thereafter will have given) notice of redemption of all the Notes pursuant to Section 3.07(d), the Company shall mail a notify the Trustee and give written notice of the Change of Control to each Holder, by first-class mail, postage prepaid, at the address appearing for such Holder at its registered addressin the Security Register or otherwise in accordance with the procedures of DTC. The notice (the “Change of Control Purchase Notice”) shall contain state, among other things:
(i) that a Change of Control has occurred or will occur, the date of such event and the circumstances and relevant facts regarding such Change of Control;
(ii) that any Notes (or any portion thereof) accepted for payment (and duly paid on the Change of Control Purchase Date) pursuant to the Change of Control Offer shall cease to accrue interest on the Change of Control Purchase Date;
(iii) that any Notes (or any portion thereof) not properly tendered will continue to accrue interest;
(iv) the Change of Control Purchase Price and the Change of Control Purchase Date, which shall be, subject to any contrary requirements of applicable law, no less than 30 days nor more than 60 days after the date the notice is mailed; provided that the Change of Control Purchase Date may not occur prior to the Change of Control;
(v) a description of the procedures that Holders are required to follow in order to tender their Notes and the procedures that Holders are required to follow in order to withdraw an election to tender their Notes for payment; and
(vi) all other instructions and materials necessary to enable such Holder Holders to tender Notes pursuant to the Change of Control Offer. Any Change of Control Offer shall be made to all Holders. The notice, which shall govern the terms If any of the Change of Control Offer, shall state: (1) that the Notes subject to a Change of Control Offer is being in the form of a Global Note, then the Company shall modify such notice to the extent necessary to accord with the procedures of the Depositary applicable to repurchases.
(c) Upon receipt by the Company of the proper tender of Notes, the Holder of the Note in respect of which such proper tender was made pursuant to this Section 4.10; shall (2) unless the Change tender of Control Payment and the date on which Notes tendered and accepted for payment shall be purchased, which date shall be such Note is properly withdrawn at least 30 days and no later than 60 days from the date such notice is mailed (the “Change of Control Payment Date”); (3) that any Note not tendered or accepted for payment shall continue to accrete or accrue interest; (4) that, unless the Company defaults in making such payment, any Note accepted for payment pursuant one Business Day prior to the Change of Control Offer shall cease Purchase Date) thereafter be entitled to accrete or accrue interest after receive solely the Change of Control Payment Date; (5) that Holders electing Purchase Price with respect to have a Note purchased pursuant to any Change of Control Offer shall be required to surrender the Note, with the form entitled “Option of Holder to Elect Purchase” on the reverse of the Note completed, or transfer by book-entry transfer, to the Company, a depositary, if appointed by the Company, or the Paying Agent at the address specified in the notice at least three days before the Change of Control Payment Date; (6) that Holders shall be entitled to withdraw their election if the Company, the depositary or the Paying Agent, as the case may be, receives, not later than the Change of Control Payment Date, a notice setting forth the name of the Holder, the principal amount of the Note the Holder delivered for purchase and a statement that such Holder is withdrawing his election to have such Note purchased; (7) that Notes and portions of Notes purchased shall be in amounts of $1,000 or whole multiples of $1,000, except that if all of the Notes of a Holder are to be purchased, the entire outstanding amount of Notes held by such Holder, even if not a multiple of $1,000, shall be purchased; and (8) that Holders whose Notes were purchased only in part shall be issued new Notes equal in principal amount to the unpurchased portion of the Notes surrendered (or transferred by book-entry transfer), which unpurchased portion must be equal to $1,000 in principal amount or an integral multiple thereof. The Company shall comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws and regulations are applicable in connection with the repurchase of the Notes as a result of a Change of Control. To the extent that the provisions of any securities laws or regulations conflict with the Change of Control provisions of this Indenture, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under the Change of Control provisions of this Indenture by virtue of such conflict. On the Change of Control Payment Date, the Company shall, to the extent lawful:
(1) accept for payment all Notes or portions thereof properly tendered pursuant to the Change of Control Offer;
(2) deposit with the Paying Agent an amount equal to the Change of Control Payment in respect of all Notes or portions thereof so tendered; and
(3) 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. The Paying Agent shall promptly mail to each Holder of Notes so tendered the Change of Control Payment for such Notes, and the Trustee shall promptly authenticate and mail (or cause to be transferred by book entry) to each Holder a new Note equal in principal amount to any unpurchased portion of the Notes surrendered, if any; provided that each such new Note shall be in a principal amount of $1,000 or an integral multiple thereof. The Company shall publicly announce the results of the Change of Control Offer on or as soon as practicable after the Change of Control Payment Date. The provisions set forth above that require the Company to make a Change of Control Offer following a Change of Control shall be applicable regardless of whether or not any other provisions of this Indenture are applicable. Notwithstanding anything to the contrary in this Section 4.10, 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 requirements set forth in this Section 4.10 and purchases all Notes validly tendered and not withdrawn under such Change of Control Offer.such
Appears in 1 contract
Samples: Indenture (Laredo Petroleum, Inc.)
Offer to Repurchase Upon a Change of Control. If a Change of Control occurs, unless the Company has exercised its right to redeem the Notes under Section 3.07, each Holder of Notes shall have the right to require the Company to repurchase all or any part (equal to $1,000 or 50,000 in the case of Dollar Notes and €50,000 in the case of Euro Notes or, in each case, an integral multiple thereofof $1,000 or €1,000 as applicable) of that Holder’s Notes pursuant to a change of control offer on the terms set forth in this Indenture (a “Change of Control Offer”). In the Change of Control Offer, the Company shall offer a payment in cash equal to 101% of the aggregate principal amount of Notes repurchased plus accrued and unpaid interest and Liquidated DamagesAdditional Interest, if any, thereon, to the date of purchase (the “Change of Control Payment”). Within 30 days following any Change of Control, the Company shall mail a notice to each Holder at its registered address. The notice shall contain all instructions and materials necessary to enable such Holder to tender Notes pursuant to the Change of Control Offer. Any Change of Control Offer shall be made to all Holders. The notice, which shall govern the terms of the Change of Control Offer, shall state: (1) that the Change of Control Offer is being made pursuant to this Section 4.10; (2) the Change of Control Payment and the date on which Notes tendered and accepted for payment shall be purchased, which date shall be at least 30 days and no later than 60 days from the date such notice is mailed (the “Change of Control Payment Date”); (3) that any Note not tendered or accepted for payment shall continue to accrete or accrue interest; (4) that, unless the Company defaults in making such payment, any Note accepted for payment pursuant to the Change of Control Offer shall cease to accrete or accrue interest after the Change of Control Payment Date; (5) that Holders electing to have a Note purchased pursuant to any Change of Control Offer shall be required to surrender the Note, with the form entitled “Option of Holder to Elect Purchase” on the reverse of the Note completed, or transfer by book-entry transfer, to the Company, a depositary, if appointed by the Company, or the Paying Agent at the address specified in the notice at least three days before the Change of Control Payment Date; (6) that Holders shall be entitled to withdraw their election if the Company, the depositary or the Paying Agent, as the case may be, receives, not later than the Change of Control Payment Date, a notice setting forth the name of the Holder, the principal amount of the Note the Holder delivered for purchase and a statement that such Holder is withdrawing his election to have such Note purchased; (7) that Notes and portions of Notes purchased shall be in amounts of $50,000 in the case of Dollar Notes and €50,000 in the case of Euro Notes or, in each case, an integral multiple of $1,000 or whole multiples of $1,000€1,000 in excess thereof, as applicable, except that if all of the Notes of a Holder are to be purchased, the entire outstanding amount of Notes held by such Holder, even if not a $50,000 in the case of Dollar Notes or €50,000 in the case of Euro Notes or, in each case, an integral multiple of $1,0001,000 or €1,000 in excess thereof, as applicable, shall be purchased; and (8) that Holders whose Notes were purchased only in part shall be issued new Notes equal in principal amount to the unpurchased portion of the Notes surrendered (or transferred by book-entry transfer), which unpurchased portion must be equal to $1,000 50,000 in principal amount or the case of Dollar Notes and €50,000 in the case of Euro Notes or, in each case, an integral multiple of $1,000 or €1,000 in excess thereof, as applicable. The Company shall comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws and regulations are applicable in connection with the repurchase of the Notes as a result of a Change of Control. To the extent that the provisions of any securities laws or regulations conflict with the Change of Control provisions of this Indenture, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under the Change of Control provisions of this Indenture by virtue of such conflict. On the Change of Control Payment Date, the Company shall, to the extent lawful:
(1) accept for payment all Notes or portions thereof properly tendered pursuant to the Change of Control Offer;
(2) deposit with the Paying Agent an amount equal to the Change of Control Payment in respect of all Notes or portions thereof so tendered; and
(3) 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. The Paying Agent shall promptly mail to each Holder of Notes so tendered the Change of Control Payment for such Notes, and the Trustee shall promptly authenticate and mail (or cause to be transferred by book entry) to each Holder a new Note equal in principal amount to any unpurchased portion of the Notes surrendered, if any; provided that each such new Note shall be in a principal amount of $1,000 50,000 or €50,000 or an integral multiple of $1,000 or €1,000, as applicable, in excess thereof. The Company shall publicly announce the results of the Change of Control Offer on or as soon as practicable after the Change of Control Payment Date. The provisions set forth above that require the Company to make a Change of Control Offer following a Change of Control shall be applicable regardless of whether or not any other provisions of this Indenture are applicable. Notwithstanding anything to the contrary in this Section 4.10, 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 requirements set forth in this Section 4.10 and purchases all Notes validly tendered and not withdrawn under such Change of Control Offer. If at any time of such Change of Control, the Notes are listed on the official list of the Irish Stock Exchange, to the extent required by the Irish Stock Exchange, the Company will notify the Irish Stock Exchange that a Change of Control has occurred and any relevant details relating to such Change of Control.
Appears in 1 contract
Samples: Indenture (Owens-Illinois Healthcare Packaging Inc.)
Offer to Repurchase Upon a Change of Control. (a) If a Change of Control occurs, unless the Company has exercised its right to redeem the Notes under Section 3.07, each Holder of Notes shall have the right to require the Company to repurchase all or any part (equal to $1,000 or an integral multiple thereof) of that Holder’s Notes Bonds (which, if in part, shall be in an amount equal to an Authorized Denomination and the non-purchased portion shall also be in an amount equal to an Authorized Denomination) pursuant to a change the Change of control Control offer on the terms set forth in this Indenture Loan Agreement (a “Change of Control Offer”). In the Change of Control Offer, the Company shall offer a payment Change of Control Payment in cash equal to 101% of the aggregate principal amount of Notes Bonds repurchased plus accrued and unpaid interest and Liquidated Damages, if any, thereon, on the Bonds repurchased to the date of purchase (the “Change of Control Payment”)purchase. Within 30 days following any Change of Control, the Trustee, at the direction of the Company shall mail a notice to each Holder at its registered address. The notice shall contain all instructions and materials necessary to enable such Holder to tender Notes pursuant to stating:
(i) the transaction or transactions that constitute the Change of Control Offer. Any Change of Control Offer shall be made to all Holders. The notice, which shall govern the terms of the Change of Control Offer, shall state: Control;
(1ii) that the Change of Control Offer is being made pursuant to this Section 4.10; 9.04 and that all Bonds tendered shall be accepted for payment;
(2iii) the Change of Control Payment purchase price and the date on which Notes tendered and accepted for payment shall be purchasedpurchase date, which date shall be at least no earlier than 30 days and no later than 60 days from the date such the notice is mailed (the “Change of Control Payment Date”); ;
(3iv) that any Note Bond not tendered or accepted for payment shall continue to accrete or accrue interest; ;
(4v) that, unless the Company defaults in making such paymentthe payment of the Change of Control Payment, any Note all Bonds accepted for payment pursuant to the Change of Control Offer shall cease to accrete or accrue interest after the Change of Control Payment Date; ;
(5vi) that Holders electing to have a Note any Bonds (or portions thereof in Authorized Denominations) purchased pursuant to any a Change of Control Offer shall be required to surrender deliver an irrevocable notice in writing by the NoteDirect Participant having the ownership interest in such Bonds, with in the form entitled set forth as the “Option of Holder to Elect Purchase” on attached as Schedule I to the reverse form of Bonds in Exhibit A to the Note completed, or transfer by book-entry transferIndenture, to the Company, a depositary, if appointed by the Company, or the Paying Agent Trustee at the address specified in the notice at least three days before notice, and shall transfer on the registration books of DTC the ownership interest in such Bonds (or portions thereof in Authorized Denominations), to the Trustee, prior to the close of business on the third Business Day preceding the Change of Control Payment Date; ;
(6vii) that Holders shall be entitled to withdraw their election if the Company, the depositary or the Paying Agent, as the case may be, Trustee receives, not later than the close of business on the second Business Day preceding the Change of Control Payment Date, a notice telex, facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Note the Holder Bonds delivered for purchase purchase, and a statement that such Holder is withdrawing his election to have such Note the Bonds purchased; and
(7viii) that Notes and portions of Notes purchased shall be in amounts of $1,000 or whole multiples of $1,000, except that if all of the Notes of a Holder are to be purchased, the entire outstanding amount of Notes held by such Holder, even if not a multiple of $1,000, shall be purchased; and (8) that Holders whose Notes were Bonds are being purchased only in part shall be issued new Notes Bonds equal in principal amount to the unpurchased portion of the Notes surrendered (or transferred by book-entry transfer)Bonds surrendered, which unpurchased portion must be equal to $1,000 in principal amount or an integral multiple thereofAuthorized Denomination. The Company shall comply with the requirements of Section 14(e) and Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such those laws and regulations are applicable in connection with the repurchase of the Notes Bonds as a result of a Change of Control. To the extent that the provisions of any securities laws or regulations conflict with the Change of Control provisions of this IndentureLoan Agreement, the Company shall comply with the applicable securities laws and regulations and shall will not be deemed to have breached its obligations under the Change of Control provisions of this Indenture Loan Agreement by virtue of such conflict. .
(b) On the Change of Control Payment Date, the Company shall, to the extent lawful:
(1i) accept for payment all Notes Bonds or portions thereof of Bonds properly tendered pursuant to the Change of Control Offeroffer;
(2ii) deposit with the Paying Agent Trustee an amount equal to the Change of Control Payment in respect of all Notes Bonds or portions thereof so of Bonds properly tendered; and
(3iii) deliver or cause to be delivered to the Trustee the Notes Bonds so accepted together with an Officers’ Certificate stating the aggregate principal amount of Notes Bonds or portions thereof of Bonds being purchased by the Company. The Paying Agent Trustee shall promptly mail to each Holder of Notes so Bonds properly tendered the Change of Control Payment for such NotesBonds, and the Trustee shall promptly authenticate and mail (or cause to be transferred by book entry) to each Holder a new Note Bond equal in principal amount to any unpurchased portion of the Notes Bonds surrendered, if any; provided that each such new Note shall Bond will be in a principal amount of $1,000 or equal to an integral multiple thereofAuthorized Denomination. The Company shall publicly announce the results of the Change of Control Offer on or as soon as practicable after the Change of Control Payment Date. The provisions set forth described above that require the Company to make a Change of Control Offer following a Change of Control shall will be applicable regardless of whether or not any other provisions of this Indenture Loan Agreement are applicable. Notwithstanding anything to the contrary in this Section 4.10, the The Company shall will not be required to make a Change of Control Offer upon a Change of Control if (1) a third party makes the Change of Control Offer in the manner, at the times and otherwise in compliance with the requirements set forth in this Section 4.10 described herein applicable to a Change of Control Offer made by the Company and purchases all Notes Bonds validly tendered and not withdrawn under such Change of Control OfferOffer or (2) a notice of redemption has been given pursuant to the Indenture as described under Section 3.02 of the Indenture, unless and until there is a default in the payment of the applicable redemption price. A Change of Control Offer may be made in advance of a Change of Control and may be conditional upon the occurrence of a Change of Control if a definitive agreement is in place for the Change of Control at the time the Change of Control Offer is made.
Appears in 1 contract
Offer to Repurchase Upon a Change of Control. (a) If a Change of Control occurs, unless the Company has exercised its right to redeem the Notes under Section 3.07, each Holder of Notes shall have the right to require the Company to repurchase all or any part (equal to $1,000 or an integral multiple thereofof $1,000) of that Holder’s Notes Securities pursuant to a change the Change of control Control offer on the terms set forth in this Supplemental Indenture (a “Change of Control Offer”). In the Change of Control Offer, the Company shall offer a payment Change of Control Payment in cash equal to 101% of the aggregate principal amount of Notes Securities repurchased plus accrued and unpaid interest and Liquidated Damages, if any, thereon, on the Securities repurchased to the date of purchase (the “Change of Control Payment”)purchase. Within 30 days following any Change of Control, the Company shall mail a notice to each Holder at its registered address. The notice shall contain all instructions and materials necessary to enable such Holder to tender Notes pursuant to stating:
(i) the transaction or transactions that constitute the Change of Control Offer. Any Change of Control Offer shall be made to all Holders. The notice, which shall govern the terms of the Change of Control Offer, shall state: and Ratings Event;
(1ii) that the Change of Control Offer is being made pursuant to this Section 4.10; 5.9 and that all Securities tendered shall be accepted for payment;
(2iii) the Change of Control Payment purchase price and the date on which Notes tendered and accepted for payment shall be purchasedpurchase date, which date shall be at least no earlier than 30 days and no later than 60 days from the date such the notice is mailed (the “Change of Control Payment Date”); ;
(3iv) that any Note Security not tendered or accepted for payment shall continue to accrete or accrue interest; ;
(4v) that, unless the Company defaults in making such paymentthe payment of the Change of Control Payment, any Note all Securities accepted for payment pursuant to the Change of Control Offer shall cease to accrete or accrue interest after the Change of Control Payment Date; ;
(5vi) that Holders electing to have a Note any Securities purchased pursuant to any a Change of Control Offer shall be required to surrender the NoteSecurities, with the form entitled “Option of Holder to Elect Purchase” on the reverse of the Note Securities completed, or transfer by book-entry transfer, to the Company, a depositary, if appointed by the Company, or the Paying Agent at the address specified in the notice at least three days before prior to the close of business on the third Business Day preceding the Change of Control Payment Date; ;
(6vii) that Holders shall be entitled to withdraw their election if the Company, the depositary or the Paying Agent, as the case may be, Agent receives, not later than the close of business on the second Business Day preceding the Change of Control Payment Date, a notice telegram, telex, facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Note the Holder Securities delivered for purchase purchase, and a statement that such Holder is withdrawing his election to have such Note the Securities purchased; and
(7viii) that Notes and portions of Notes purchased shall be in amounts of $1,000 or whole multiples of $1,000, except that if all of the Notes of a Holder are to be purchased, the entire outstanding amount of Notes held by such Holder, even if not a multiple of $1,000, shall be purchased; and (8) that Holders whose Notes were Securities are being purchased only in part shall be issued new Notes Securities equal in principal amount to the unpurchased portion of the Notes surrendered (or transferred by book-entry transfer)Securities surrendered, which unpurchased portion must be equal to $1,000 in principal amount or an integral multiple thereof. The Company shall comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such those laws and regulations are applicable in connection with the repurchase of the Notes Securities as a result of a Change of Control. To the extent that the provisions of any securities laws or regulations conflict with the Change of Control provisions of this Indenture, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under the Change of Control provisions of this Indenture by virtue of such conflict. On the Change of Control Payment Date, the Company shall, to the extent lawful:
(1) accept for payment all Notes or portions thereof properly tendered pursuant to the Change of Control Offer;
(2) deposit with the Paying Agent an amount equal to the Change of Control Payment in respect of all Notes or portions thereof so tendered; and
(3) 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. The Paying Agent shall promptly mail to each Holder of Notes so tendered the Change of Control Payment for such Notes, and the Trustee shall promptly authenticate and mail (or cause to be transferred by book entry) to each Holder a new Note equal in principal amount to any unpurchased portion of the Notes surrendered, if any; provided that each such new Note shall be in a principal amount of $1,000 or an integral multiple thereof. The Company shall publicly announce the results of the Change of Control Offer on or as soon as practicable after the Change of Control Payment Date. The provisions set forth above that require the Company to make a Change of Control Offer following a Change of Control shall be applicable regardless of whether or not any other provisions of this Indenture are applicable. Notwithstanding anything to the contrary in this Section 4.10, 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 requirements set forth in this Section 4.10 and purchases all Notes validly tendered and not withdrawn under such Change of Control Offer.of
Appears in 1 contract
Samples: First Supplemental Indenture (Navistar International Corp)
Offer to Repurchase Upon a Change of Control. (a) If a Change of Control Triggering Event occurs, unless the Company has previously or concurrently exercised its right to redeem all of the Notes under pursuant to Section 3.074.07, each Holder of Notes shall will have the right to require the Company to repurchase all or any part (equal to $1,000 2,000 or an integral multiple thereofof $1,000 in excess of $2,000) of that such Holder’s Notes pursuant to at a change of control offer on the terms set forth in this Indenture (a “Change of Control Offer”). In the Change of Control Offer, the Company shall offer a payment purchase price in cash equal to 101% of the aggregate principal amount of the Notes repurchased plus accrued and unpaid interest and Liquidated Damagesinterest, if any, thereon, to the date of purchase (subject to the right of Holders of record on the relevant record date to receive interest due on the relevant Interest Payment Date).
(b) Within 30 days following any Change of Control Triggering Event, unless the Company has previously or concurrently exercised its right to redeem all of the Notes pursuant to Section 4.07, the Company shall mail a notice (the “Change of Control Offer”) to each Holder, with a copy to the Trustee, stating, among other things:
(1) that a Change of Control Triggering Event has occurred and that such Holder has the right to require the Company to purchase such Holder’s Notes at a purchase price in cash equal to 101% of the principal amount of such Notes plus accrued and unpaid interest, if any, to the date of purchase (subject to the right of Holders of record on the relevant record date to receive interest due on the relevant Interest Payment Date) (the “Change of Control Payment”). Within 30 days following any Change of Control, the Company shall mail a notice to each Holder at its registered address. The notice shall contain all instructions and materials necessary to enable such Holder to tender Notes pursuant to the Change of Control Offer. Any Change of Control Offer shall be made to all Holders. The notice, which shall govern the terms of the Change of Control Offer, shall state: (1) that the Change of Control Offer is being made pursuant to this Section 4.10; ;
(2) the Change of Control Payment and the repurchase date on (which Notes tendered and accepted for payment shall be purchased, which date shall be at least no earlier than 30 days and no nor later than 60 days from the date such notice is mailed mailed) (the “Change of Control Payment Date”); ;
(3) that any Note not properly tendered or accepted for payment shall will remain outstanding and continue to accrete or accrue interest; ;
(4) that, that unless the Company defaults in making such paymentthe payment of the Change of Control Payment, any Note all Notes accepted for payment pursuant to the Change of Control Offer shall will cease to accrete or accrue interest after on the Change of Control Payment Date; ;
(5) that Holders electing to have a Note any Notes in certificated form purchased pursuant to any a Change of Control Offer shall will be required to surrender the Notesuch Notes, with the form entitled “Option of Holder to Elect Purchase” on the reverse of the Note such Notes completed, or transfer by book-entry transfer, to the Company, a depositary, if appointed by the Company, or the Paying Agent specified in the notice at the address specified in the notice at least three days before prior to the close of business on the third Business Day preceding the Change of Control Payment Date; ;
(6) that Holders shall will be entitled to withdraw their tendered Notes and their election if to require the CompanyCompany to purchase such Notes, the depositary or provided, that the Paying Agent, as the case may be, Agent receives, not later than the close of business on the third Business Day preceding the Change of Control Payment Date, a notice setting forth facsimile transmission or letter complying with the name requirements of the Holder, the principal amount of the Note the Holder delivered for purchase and a statement that such Holder is withdrawing his election to have such Note purchased; Section 5.15(f) below;
(7) that Notes and portions of Notes purchased shall be in amounts of $1,000 or whole multiples of $1,000, except that if all the Company is repurchasing a portion of the Notes Note of a Holder are to be purchasedany Holder, the entire outstanding amount of Notes held by such Holder, even if not a multiple of $1,000, shall be purchased; and (8) that Holders whose Notes were purchased only in part shall Holder will be issued a new Notes Note equal in principal amount to the unpurchased portion of the Notes surrendered (or transferred by book-entry transfer)Note surrendered, which provided, that the unpurchased portion of the Note must be equal to a minimum principal amount of $2,000 and an integral multiple of $1,000 in principal amount or an integral multiple thereof. The Company shall comply excess of $2,000; and
(8) other procedures determined by the Company, consistent with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws and regulations are applicable in connection with the repurchase of the Notes as a result of a Change of Control. To the extent that the provisions of any securities laws or regulations conflict with the Change of Control provisions of this Indenture, the Company shall comply with the applicable securities laws and regulations and shall not be deemed that a Holder must follow to have breached its obligations under the Change of Control provisions of this Indenture by virtue of such conflict. Notes repurchased.
(c) On the Change of Control Payment Date, the Company shallwill, to the extent lawful:
(1) accept for payment all Notes or portions thereof of Notes (in a minimum principal amount of $2,000 and integral multiples of $1,000 in excess of $2,000) properly tendered pursuant to the Change of Control OfferOffer and not properly withdrawn;
(2) deposit with the Paying Agent paying agent an amount equal to the Change of Control Payment in respect of all Notes or portions thereof so tenderedof Notes accepted for payment, provided, however, that the funds once deposited are to be uninvested until disbursed pursuant to this Section 5.15; and
(3) 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 of Notes being purchased by the Company. .
(d) The Paying Agent shall will promptly mail or deliver to each Holder of Notes so tendered accepted for payment the Change of Control Payment for such Notes, and the Trustee shall will promptly authenticate and mail (or cause to be transferred by book entry) to each Holder a new Note equal in principal amount to any unpurchased portion of the Notes surrendered, if any; provided provided, that each such new Note shall will be in a minimum principal amount of $1,000 2,000 or an integral multiple thereof. The Company shall publicly announce the results of $1,000 in excess of $2,000.
(e) If the Change of Control Offer Payment Date is on or as soon as practicable after an interest record date and on or before the related Interest Payment Date, any accrued and unpaid interest, will be paid to the Person in whose name a Note is registered at the close of business on such record date, and no further interest will be payable to Holders who tender their Notes pursuant to the Change of Control Offer.
(f) A tender made in response to a Change of Control Offer may be withdrawn if the Company receives, not later than the third Business Day prior to the Change of Control Payment Date. The provisions set forth above that require , a telegram, telex, facsimile transmission or letter, specifying, as applicable: (1) the name of the Holder; (2) the certificate number of the Note in respect of which such notice of withdrawal is being submitted; (3) the principal amount of the Note (which shall be $2,000 or whole multiples of $1,000 in excess thereof) delivered for purchase by the Company as to make which such notice of withdrawal is being submitted; (4) a statement that such Holder is withdrawing such Holder’s election to have such principal amount of such Note purchased; and (5) the principal amount, if any, of such Note (which shall be $2,000 or whole multiples of $1,000 in excess thereof) that remains subject to the original Change of Control Offer and that has been or will be delivered for purchase by the Company.
(g) The Trustee and the Paying Agent shall return to the Company, upon its request, any cash that remains unclaimed for two years after a Change of Control Offer Payment Date together with interest or dividends, if any, thereon (subject to Section 8.01(f)), held by them for the payment of the Change of Control Payment; and the Holder of such tendered and accepted Note shall thereafter look only to the Company for payment thereof, and all liability of the Trustee or such Paying Agent with respect to such cash, and all liability of the Company as trustee thereof, shall thereupon cease; provided, however, that the Trustee or such Paying Agent, before being required to make any such repayment, shall at the expense of the Company comply with the SEC Regulation 17AD-17 as it applies to lost bondholders; provided, further however, that (x) to the extent that the aggregate amount of cash deposited by the Company pursuant to Section 5.15(c)(2) exceeds the aggregate Change of Control Payment of the Notes or portions thereof to be purchased, then the Trustee shall hold such excess for the Company and (y) unless otherwise directed by the Company in writing, promptly after the Business Day following the Change of Control Payment Date the Trustee shall return any such excess to the Company together with interest, if any, thereon (subject to Section 8.01(f)).
(h) The Company shall comply, to the extent applicable, with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws or regulations in connection with a Change of Control shall be applicable regardless of whether or not any other Offer. To the extent that the provisions of this Indenture are applicable. Notwithstanding anything to the contrary in any securities laws or regulations conflict with this Section 4.105.15, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under this Section 5.15 by virtue of such conflict.
(i) Notwithstanding the foregoing, the Company shall not be required to make a Change of Control Offer (i) upon a Change of Control Triggering Event if a third party makes the Change of Control Offer in the manner, at the times and otherwise in compliance with the requirements set forth in this Section 4.10 Indenture applicable to a Change of Control Offer made by the Company and purchases all Notes validly tendered and not withdrawn under such Change of Control Offer or (ii) if notice of redemption for 100% of the aggregate principal amount of the outstanding Notes has been given pursuant to Section 4.07, unless and until there is a default in payment of the applicable redemption price.
(j) If Holders of not less than 90% of the aggregate principal amount of the outstanding Notes validly tender their Notes and do not withdraw such Notes in a Change of Control Offer and the Company, or any third party making a Change of Control Offer in lieu of the Company pursuant to Section 5.15(i) above, purchases all of the Notes validly tendered and not withdrawn by such Holders, the Company will have the right, upon not less than 30 nor more than 60 days’ prior notice, given not more than 30 days following the purchase pursuant to the Change of Control Offer described under this Section 5.15, to redeem all of the Notes that remain outstanding following such purchase at a redemption price in cash equal to the applicable Change of Control Payment plus, to the extent not included in the Change of Control Payment, accrued and unpaid interest, if any, to the date of redemption.
(k) A Change of Control Offer may be made in advance of a Change of Control Triggering Event, and conditioned upon the occurrence of a Change of Control Triggering Event, if a definitive agreement is in place for the Change of Control at the time of making of the Change of Control Offer.
Appears in 1 contract
Offer to Repurchase Upon a Change of Control. (a) If a Change of Control occurs, unless the Company has previously or concurrently exercised its right to redeem all of the Notes under pursuant to Section 3.07, each Holder of Notes shall will have the right to require the Company to repurchase all or any part (equal to $1,000 2,000 or an integral multiple thereofof $1,000 in excess of $2,000) of that such Holder’s Notes pursuant to at a change of control offer on the terms set forth in this Indenture (a “Change of Control Offer”). In the Change of Control Offer, the Company shall offer a payment purchase price in cash equal to 101% of the aggregate principal amount of the Notes repurchased plus accrued and unpaid interest and Liquidated Damagesinterest, if any, thereon, to the date of purchase (subject to the right of Holders of record on the relevant record date to receive interest due on the relevant Interest Payment Date).
(b) Within 30 days following any Change of Control, unless the Company has previously or concurrently exercised its right to redeem all of the Notes pursuant to Section 3.07, the Company will mail a notice (the “Change of Control Offer”) to each Holder, with a copy to the Trustee, stating, among other things:
(1) that a Change of Control has occurred and that such Holder has the right to require the Company to purchase such Holder’s Notes at a purchase price in cash equal to 101% of the principal amount of such Notes plus accrued and unpaid interest, if any, to the date of purchase (subject to the right of Holders of record on a record date to receive interest on the relevant Interest Payment Date) (the “Change of Control Payment”). Within 30 days following any Change of Control, the Company shall mail a notice to each Holder at its registered address. The notice shall contain all instructions and materials necessary to enable such Holder to tender Notes pursuant to the Change of Control Offer. Any Change of Control Offer shall be made to all Holders. The notice, which shall govern the terms of the Change of Control Offer, shall state: (1) that the Change of Control Offer is being made pursuant to this Section 4.10; ;
(2) the Change of Control Payment and the repurchase date on (which Notes tendered and accepted for payment shall be purchased, which date shall be at least no earlier than 30 days and no nor later than 60 days from the date such notice is mailed mailed) (the “Change of Control Payment Date”); ;
(3) that any Note not properly tendered or accepted for payment shall will remain outstanding and continue to accrete or accrue interest; ;
(4) that, that unless the Company defaults in making such paymentthe payment of the Change of Control Payment, any Note all Notes accepted for payment pursuant to the Change of Control Offer shall will cease to accrete or accrue interest after on the Change of Control Payment Date; ;
(5) that Holders electing to have a Note any Notes in certificated form purchased pursuant to any a Change of Control Offer shall will be required to surrender the Notesuch Notes, with the form entitled “Option of Holder to Elect Purchase” on the reverse of the Note such Notes completed, or transfer by book-entry transfer, to the Company, a depositary, if appointed by paying agent specified in the Company, or the Paying Agent notice at the address specified in the notice at least three days before prior to the close of business on the Business Day preceding the Change of Control Payment Date; ;
(6) that Holders shall will be entitled to withdraw their tendered Notes and their election if to require the CompanyCompany to purchase such Notes, provided, that the depositary or the Paying Agent, as the case may be, paying agent receives, not later than the close of business on the Business Day preceding the Change of Control Payment Date, a notice setting forth telegram, telex, facsimile transmission or letter complying with the name requirements of the Holder, the principal amount of the Note the Holder delivered for purchase and a statement that such Holder is withdrawing his election to have such Note purchased; Section 4.15(f) below;
(7) that Notes and portions of Notes purchased shall be in amounts of $1,000 or whole multiples of $1,000, except that if all the Company is repurchasing a portion of the Notes Note of a Holder are to be purchasedany Holder, the entire outstanding amount of Notes held by such Holder, even if not a multiple of $1,000, shall be purchased; and (8) that Holders whose Notes were purchased only in part shall Holder will be issued a new Notes Note equal in principal amount to the unpurchased portion of the Notes surrendered (or transferred by book-entry transfer)Note surrendered, which provided, that the unpurchased portion of the Note must be equal to a minimum principal amount of $2,000 and an integral multiple of $1,000 in principal amount or an integral multiple thereof. The Company shall comply excess of $2,000; and
(8) other procedures determined by the Company, consistent with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws and regulations are applicable in connection with the repurchase of the Notes as a result of a Change of Control. To the extent that the provisions of any securities laws or regulations conflict with the Change of Control provisions of this Indenture, the Company shall comply with the applicable securities laws and regulations and shall not be deemed that a Holder must follow in order to have breached its obligations under the Change of Control provisions of this Indenture by virtue of such conflict. Notes repurchased.
(c) On the Change of Control Payment Date, the Company shall, to the extent lawfulwill:
(1) accept for payment all Notes or portions thereof of Notes (in a minimum principal amount of $2,000 and integral multiples of $1,000 in excess of $2,000) properly tendered pursuant to the Change of Control OfferOffer and not properly withdrawn;
(2) deposit with the Paying Agent paying agent an amount equal to the Change of Control Payment in respect of all Notes or portions thereof so tenderedof Notes accepted for payment, provided, however, that the funds once deposited are to be uninvested until disbursed pursuant to this Section 4.15; and
(3) 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 of Notes being purchased by the Company. .
(d) The Paying Agent shall paying agent will promptly mail or deliver to each Holder of Notes so tendered accepted for payment the Change of Control Payment for such Notes, and the Trustee shall will promptly authenticate and mail (or cause to be transferred by book entry) to each Holder a new Note equal in principal amount to any unpurchased portion of the Notes surrendered, if any; provided provided, that each such new Note shall will be in a minimum principal amount of $1,000 2,000 or an integral multiple thereof. The Company shall publicly announce the results of $1,000 in excess of $2,000.
(e) If the Change of Control Offer Payment Date is on or as soon as practicable after an interest record date and on or before the related Interest Payment Date, any accrued and unpaid interest, will be paid to the Person in whose name a Note is registered at the close of business on such record date, and no further interest will be payable to Holders who tender pursuant to the Change of Control Offer.
(f) A tender made in response to a Change of Control Offer may be withdrawn if the Company receives, not later than the third Business Day prior to the Change of Control Payment Date. The provisions set forth above that require , a telegram, telex, facsimile transmission or letter, specifying, as applicable: (1) the name of the Holder; (2) the certificate number of the Note in respect of which such notice of withdrawal is being submitted; (3) the principal amount of the Note (which shall be $2,000 or whole multiples of $1,000 in excess thereof) delivered for purchase by the Company as to make which such notice of withdrawal is being submitted; (4) a statement that such Holder is withdrawing such Holder’s election to have such principal amount of such Note purchased; and (5) the principal amount, if any, of such Note (which shall be $2,000 or whole multiples of $1,000 in excess thereof) that remains subject to the original Change of Control Offer and that has been or will be delivered for purchase by the Company.
(g) The Trustee and the Paying Agent shall return to the Company, upon its request, any cash that remains unclaimed for two years after a Change of Control Offer Payment Date together with interest or dividends, if any, thereon (subject to Section 7.01(f)), held by them for the payment of the Change of Control Payment; and the Holder of such tendered and accepted Note shall thereafter look only to the Company for payment thereof, and all liability of the Trustee or such Paying Agent with respect to such cash, and all liability of the Company as trustee thereof, shall thereupon cease; provided, however, that the Trustee or such Paying Agent, before being required to make any such repayment, shall at the expense of the Company comply with the SEC Regulation 17AD-17 as it applies to lost bondholders; provided, further however, that (x) to the extent that the aggregate amount of cash deposited by the Company pursuant to Section 4.15(c)(2) exceeds the aggregate Change of Control Payment of the Notes or portions thereof to be purchased, then the Trustee shall hold such excess for the Company and (y) unless otherwise directed by the Company in writing, promptly after the Business Day following the Change of Control Payment Date the Trustee shall return any such excess to the Company together with interest, if any, thereon (subject to Section 7.01(f)).
(h) The Company will comply, to the extent applicable, with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws or regulations in connection with a Change of Control shall be applicable regardless of whether or not any other Offer. To the extent that the provisions of this Indenture are applicable. Notwithstanding anything to the contrary in any securities laws or regulations conflict with this Section 4.104.15, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under this Section 4.15 by virtue of such conflict.
(i) Notwithstanding the foregoing, the Company shall not be required to make a Change of Control Offer (i) 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 requirements set forth in this Section 4.10 Indenture applicable to a Change of Control Offer made by the Company and purchases all Notes validly tendered and not withdrawn under such Change of Control Offer or (ii) if notice of redemption for 100% of the aggregate principal amount of the outstanding Notes has been given pursuant to Section 3.07, unless and until there is a default in payment of the applicable redemption price.
(j) In the event that Holders of not less than 90% of the aggregate principal amount of the outstanding Notes validly tender and do not withdraw such Notes in a Change of Control Offer and the Company, or any third party making a Change of Control Offer in lieu of the Company pursuant to Section 4.15(i) above, purchases all of the Notes validly tendered and not withdrawn by such Holders, the Company will have the right, upon not less than 30 nor more than 60 days’ prior notice, given not more than 30 days following the purchase pursuant to the Change of Control Offer described under this Section 4.15, to redeem all of the Notes that remain outstanding following such purchase at a redemption price in cash equal to the applicable Change of Control Payment plus, to the extent not included in the Change of Control Payment, accrued and unpaid interest, if any, to the date of redemption.
(k) A Change of Control Offer may be made in advance of a Change of Control, and conditioned upon the occurrence of a Change of Control, if a definitive agreement is in place for the Change of Control at the time of making of the Change of Control Offer.
Appears in 1 contract
Samples: Indenture (Ultra Petroleum Corp)
Offer to Repurchase Upon a Change of Control. (a) If a Change of Control Triggering Event occurs, unless the Company has exercised its right to redeem given notice of redemption of all the Notes under pursuant to Section 3.07, each Holder of Notes shall will have the right to require that the Company to repurchase purchase all or any part (equal to in minimum amounts of $2,000 or whole multiples of $1,000 or an integral multiple in excess thereof) of that such Holder’s Notes pursuant to a change of control the offer on the terms set forth described below in this Indenture Section 4.16 (a the “Change of Control Offer”). In the Change of Control Offer, the Company shall will offer to purchase all of the Notes, at a payment purchase price (the “Change of Control Purchase Price”) in cash in an amount equal to 101% of the aggregate principal amount of Notes repurchased such Notes, plus accrued and unpaid interest and Liquidated Damagesinterest, if any, thereon, to the date of purchase (the “Change of Control PaymentPurchase Date”). , subject to the rights of Holders of record on relevant record dates to receive interest due on the relevant interest payment date.
(b) Within 30 days following after any Change of ControlControl Triggering Event, the Company shall mail a notify the Trustee and give written notice of the Change of Control Triggering Event to each Holder, by first-class mail, postage prepaid, at the address appearing for such Holder at its registered addressin the Securities Register (or, in the case of Global Notes, if such notice is given by the Trustee on behalf of the Company, sent in accordance with the applicable procedures of the Depositary). The notice (the “Change of Control Purchase Notice”) shall contain state, among other things:
(i) that a Change of Control Triggering Event has occurred or will occur, the date of such event and the circumstances and relevant facts regarding such Change of Control Triggering Event;
(ii) that any Notes (or any portion thereof) accepted for payment and duly paid on the Change of Control Purchase Date pursuant to the Change of Control Offer shall cease to accrue interest on the Change of Control Purchase Date;
(iii) that any Notes (or any portion thereof) not properly tendered will continue to accrue interest;
(iv) the Change of Control Purchase Price and the Change of Control Purchase Date, which shall be fixed by the Company on a Business Day no earlier than 10 days nor later than 60 days from the date the Change of Control Purchase Notice is mailed (or, in the case of Global Notes, sent), or such later date as is necessary to comply with requirements under the Exchange Act; provided that the Change of Control Purchase Date may not occur prior to the Change of Control Triggering Event;
(v) a description of the procedures that Holders of Notes are required to follow in order to tender their Notes and the procedures that Holders of Notes are required to follow in order to withdraw an election to tender their Notes for payment; and
(vi) all other instructions and materials necessary to enable such Holder Holders to tender Notes pursuant to the Change of Control Offer. Any .
(c) If any of the Notes subject to a Change of Control Offer is in the form of a Global Note, then the Company shall modify such notice to the extent necessary to accord with the procedures of the Depositary applicable to repurchases.
(d) Upon receipt by the Company of the proper tender of Notes, the Holder of the Note in respect of which such proper tender was made shall (unless the tender of such Note is properly withdrawn at least one Business Day prior to the Change of Control Purchase Date) thereafter be made entitled to all Holdersreceive solely the Change of Control Purchase Price with respect to such Notes. The noticeNotes to be purchased shall, which on the Change of Control Purchase Date, become due and payable at the Change of Control Purchase Price, and from and after such date (unless the Company shall govern default in the terms payment of the Change of Control Offer, Purchase Price) such Notes shall state: (1) that cease to bear interest. Such Change of Control Purchase Price shall be paid to such Holder promptly following the later of the Change of Control Offer is being made pursuant Purchase Date and the time of delivery of such Note to this Section 4.10; (2) the relevant Paying Agent at the office of such Paying Agent by the Holder thereof in the manner required. Upon surrender of any such Note for purchase in accordance with the foregoing provisions, such Note shall be paid by the Company at the Change of Control Payment and the date Purchase Price; provided, however, that installments of interest whose Stated Maturity is on which Notes tendered and accepted for payment shall be purchased, which date shall be at least 30 days and no later than 60 days from the date such notice is mailed (the “Change of Control Payment Date”); (3) that any Note not tendered or accepted for payment shall continue to accrete or accrue interest; (4) that, unless the Company defaults in making such payment, any Note accepted for payment pursuant prior to the Change of Control Offer shall cease to accrete or accrue interest after the Change of Control Payment Date; (5) that Holders electing to have a Note purchased pursuant to any Change of Control Offer Purchase Date shall be required payable to surrender the NoteHolders of such Notes, with registered as such as of the form entitled “Option close of Holder to Elect Purchase” business on the reverse of the Note completed, or transfer by book-entry transfer, relevant record dates according to the Company, a depositary, if appointed by the Company, or the Paying Agent at the address specified in the notice at least three days before the Change of Control Payment Date; (6) that Holders shall be entitled to withdraw their election if the Company, the depositary or the Paying Agent, as the case may be, receives, not later than the Change of Control Payment Date, a notice setting forth the name of the Holder, the principal amount of the Note the Holder delivered for purchase terms and a statement that such Holder is withdrawing his election to have such Note purchased; (7) that Notes and portions of Notes purchased shall be in amounts of $1,000 or whole multiples of $1,000, except that if all of the Notes of a Holder are to be purchased, the entire outstanding amount of Notes held by such Holder, even if not a multiple of $1,000, shall be purchased; and (8) that Holders whose Notes were purchased only in part shall be issued new Notes equal in principal amount to the unpurchased portion of the Notes surrendered (or transferred by book-entry transfer), which unpurchased portion must be equal to $1,000 in principal amount or an integral multiple thereof. The Company shall comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws and regulations are applicable in connection with the repurchase of the Notes as a result of a Change of Control. To the extent that the provisions of any securities laws or regulations conflict with the Change of Control provisions of this Indenture, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under the Change of Control provisions of this Indenture by virtue of such conflict. On the Change of Control Payment Date, the Company shall, to the extent lawful:
(1) accept for payment all Notes or portions thereof properly tendered pursuant to the Change of Control Offer;
(2) deposit with the Paying Agent an amount equal to the Change of Control Payment in respect of all Notes or portions thereof so tendered; and
(3) 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. The Paying Agent shall promptly mail to each Holder of Notes so tendered the Change of Control Payment for such Notes, and the Trustee shall promptly authenticate and mail (or cause to be transferred by book entry) to each Holder a new Note equal in principal amount to any unpurchased portion of the Notes surrendered, if any; provided that each such new Note shall be in a principal amount of $1,000 or an integral multiple thereof. The Company shall publicly announce the results of the Change of Control Offer on or as soon as practicable after the Change of Control Payment Date. The provisions set forth above that require the Company to make a Change of Control Offer following a Change of Control shall be applicable regardless of whether or not any other provisions of this Indenture are applicable. Notwithstanding anything to the contrary in this Section 4.10, 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 requirements set forth in this Section 4.10 and purchases all Notes validly tendered and not withdrawn under such Change of Control Offer.Section
Appears in 1 contract
Offer to Repurchase Upon a Change of Control. If a Change of Control occursoccurs at any time, unless the Company has exercised its right will be required to redeem the Notes under Section 3.07, each Holder offer (“Change of Notes shall have the right to require the Company Control Offer”) to repurchase for cash all of such Holder’s Notes, or any part (portion thereof that is equal to $1,000 or an integral multiple thereof) of that Holder’s Notes pursuant to a change of control offer $1,000, on the terms set forth in this Indenture date (a the “Change of Control OfferRepurchase Date”) specified by the Company that is not less than 20 calendar days or more than 35 calendar days following the date of the Change of Control Company Notice at a repurchase price equal to 100% of the principal amount thereof, plus any accrued and unpaid interest thereon to, but excluding, the Change of Control Repurchase Date (the “Change of Control Repurchase Price”). In , unless the Change of Control Repurchase Date falls after an Interest Record Date but on or prior to the Interest Payment Date to which such Interest Record Date relates, in which case the Company shall instead pay the full amount of any accrued and unpaid interest to Holders of record as of such Interest Record Date, and the Change of Control Repurchase Price shall be equal to 100% of the principal amount of Notes to be repurchased pursuant to this Section 15.05.
(a) Upon the commencement of a Change of Control Offer, the Company shall offer send, or cause to be sent, by first class mail or electronically, a payment in cash equal to 101% of the aggregate principal amount of Notes repurchased plus accrued and unpaid interest and Liquidated Damages, if any, thereon, notice to the date of purchase (the “Change of Control Payment”). Within 30 days following any Change of ControlTrustee, the Company shall mail a notice Collateral Agent and to each Holder at its registered address. The notice shall contain all instructions and materials necessary to enable such Holder to tender Notes pursuant to the Change of Control Offer. Any Change of Control Offer shall be made to all Holders. The notice, which shall govern the terms of the Change of Control Offer, shall state: :
(1A) that the Change of Control Offer is being made pursuant to this Section 4.10; 15.05 and that, to the extent lawful, all Notes tendered and not withdrawn shall be accepted for payment;
(2B) the Change of Control Payment Repurchase Price, and the date on which Notes tendered and accepted for payment shall be purchased, which date shall be at least 30 days and no not later than 60 days from the date such notice is mailed (the “Change of Control Repurchase Payment Date”); ;
(3C) that any Note Notes not tendered or accepted for payment shall continue to accrete or accrue interest; interest in accordance with the terms thereof;
(4D) that, unless the Company defaults in making such payment, any Note Notes accepted for payment pursuant to the Change of Control Offer shall cease to accrete or accrue interest on and after the Change of Control Repurchase Payment Date; ;
(5E) that Holders electing to have a Note any Notes purchased pursuant to any Change of Control Offer shall be required to surrender the NoteNotes, with the form entitled “Option of Holder to Elect Purchase” on the reverse of the Note completed, or transfer by book-entry transfer, to the Company, a depositary, if appointed by the Company, or the Paying Agent Trustee at the address specified in the notice at least three days Business Days before the Change of Control Payment Repurchase Date; ;
(6F) that Holders shall be entitled to withdraw their election if the Company, the depositary or the Paying Agent, as the case may be, Trustee receives, not later than three Business Days prior to the Change of Control Payment Date, a notice setting forth the name of the Holder, the principal amount of the Note the Holder delivered for purchase and a statement that such Holder is withdrawing his its election to have such Note purchased; and
(7G) that Notes and portions of Notes purchased shall be in amounts of $1,000 or whole multiples of $1,000, except that if all of the Notes of a Holder are to be purchased, the entire outstanding amount of Notes held by such Holder, even if not a multiple of $1,000, shall be purchased; and (8) that Holders whose Notes were purchased only in part shall be issued new Notes equal in principal amount to the unpurchased portion of the Notes surrendered (or transferred by book-entry transferentry), which unpurchased portion must be equal to $1,000 in principal amount or an integral multiple thereof. The Company shall comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws and regulations are applicable in connection with the repurchase of the Notes as a result of a Change of Control. To the extent that the provisions of any securities laws or regulations conflict with the Change of Control provisions of this Indenture, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under the Change of Control provisions of this Indenture by virtue of such conflict. On the Change of Control Payment Date, the Company shall, to the extent lawful:
(1) accept for payment all Notes or portions thereof properly tendered pursuant to the Change of Control Offer;
(2) deposit with the Paying Agent an amount equal to the Change of Control Payment in respect of all Notes or portions thereof so tendered; and
(3) 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. The Paying Agent shall promptly mail to each Holder of Notes so tendered the Change of Control Payment for such Notes, and the Trustee shall promptly authenticate and mail (or cause to be transferred by book entry) to each Holder a new Note equal in principal amount to any unpurchased portion of the Notes surrendered, if any; provided that each such new Note shall be in a principal amount of $1,000 or an integral multiple thereof. The Company shall publicly announce the results of the Change of Control Offer on or as soon as practicable after the Change of Control Payment Date. The provisions set forth above that require the Company to make a Change of Control Offer following a Change of Control shall be applicable regardless of whether or not any other provisions of this Indenture are applicable. Notwithstanding anything to the contrary in this Section 4.10, 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 requirements set forth in this Section 4.10 and purchases all Notes validly tendered and not withdrawn under such Change of Control Offer.
Appears in 1 contract
Offer to Repurchase Upon a Change of Control. If (a) Upon the occurrence of a Change of Control occursControl, unless the Company has previously or concurrently exercised its right to redeem all of the Notes under pursuant to Section 3.073.01, each Holder of Notes shall have the right to require the Company to repurchase all or any part (equal to $1,000 or an integral multiple thereof) of that such Holder’s Notes pursuant to at a change of control offer on the terms set forth in this Indenture (a “Change of Control Offer”). In the Change of Control Offer, the Company shall offer a payment purchase price in cash equal to 101101.0% of the aggregate principal amount of the Notes repurchased plus accrued and unpaid interest and Liquidated Damagesinterest, if any, thereon, to the date of purchase (subject to the right of Holders of record on the relevant Regular Record Date to receive interest due on an Interest Payment Date falling on or prior to the date of purchase).
(b) Prior to or within 30 days following any Change of Control, unless the Company has previously or concurrently exercised its right to redeem all of the Notes pursuant to Section 3.01, the Company shall deliver a notice (the “Change of Control Offer”) to each Holder or otherwise give notice in accordance with the applicable procedures of the Depositary, with a copy to the Trustee, stating:
(1) that a Change of Control has occurred or, if the Change of Control Offer is being made in advance of a Change of Control, that a Change of Control is expected to occur, and that such Holder has, or upon such occurrence will have, the right to require the Company to purchase such Holder’s Notes at a purchase price in cash equal to 101.0% of the principal amount of such Notes plus accrued and unpaid interest, if any, to the date of purchase (subject to the right of Holders of record on a Regular Record Date to receive interest on the relevant Interest Payment Date) (the “Change of Control Payment”). Within 30 days following any Change of Control, the Company shall mail a notice to each Holder at its registered address. The notice shall contain all instructions and materials necessary to enable such Holder to tender Notes pursuant to the Change of Control Offer. Any Change of Control Offer shall be made to all Holders. The notice, which shall govern the terms of the Change of Control Offer, shall state: (1) that the Change of Control Offer is being made pursuant to this Section 4.10; ;
(2) the Change of Control Payment and the repurchase date on (which Notes tendered and accepted for payment shall be purchased, which date shall be at least 30 no earlier than ten days and no nor later than 60 days from the date such notice is mailed delivered) (the “Change of Control Payment Date”); ;
(3) if such notice is delivered prior to the occurrence of a Change of Control, that any Note not tendered or accepted for payment shall continue to accrete or accrue interest; (4) that, unless the Company defaults in making such payment, any Note accepted for payment pursuant to the Change of Control Offer shall cease to accrete or accrue interest after the Change of Control Payment Date; (5) that Holders electing to have a Note purchased pursuant to any Change of Control Offer shall be required to surrender the Note, with the form entitled “Option of Holder to Elect Purchase” is conditional on the reverse of the Note completed, or transfer by book-entry transfer, to the Company, a depositary, if appointed by the Company, or the Paying Agent at the address specified in the notice at least three days before the Change of Control Payment Date; (6) that Holders shall be entitled to withdraw their election if the Company, the depositary or the Paying Agent, as the case may be, receives, not later than the Change of Control Payment Date, a notice setting forth the name of the Holder, the principal amount of the Note the Holder delivered for purchase and a statement that such Holder is withdrawing his election to have such Note purchased; (7) that Notes and portions of Notes purchased shall be in amounts of $1,000 or whole multiples of $1,000, except that if all of the Notes of a Holder are to be purchased, the entire outstanding amount of Notes held by such Holder, even if not a multiple of $1,000, shall be purchased; and (8) that Holders whose Notes were purchased only in part shall be issued new Notes equal in principal amount to the unpurchased portion of the Notes surrendered (or transferred by book-entry transfer), which unpurchased portion must be equal to $1,000 in principal amount or an integral multiple thereof. The Company shall comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws and regulations are applicable in connection with the repurchase of the Notes as a result occurrence of a Change of Control. To ; and
(4) the extent that procedures determined by the provisions of any securities laws or regulations conflict Company, consistent with the Change of Control provisions of this Indenture, the Company shall comply with the applicable securities laws and regulations and shall not be deemed that a Holder must follow in order to have breached its obligations under the Change of Control provisions of this Indenture by virtue of such conflictNotes repurchased. On the Change of Control Payment Date, the Company shall, to the extent lawful:
(1) accept for payment all Notes or portions thereof of Notes properly tendered and not withdrawn pursuant to the Change of Control Offer;
(2) deposit with the Paying Agent an amount equal to the Change of Control Payment in respect of all Notes or portions thereof so tenderedof Notes properly tendered and not withdrawn; and
(3) deliver or cause to be delivered to the Trustee for cancellation the Notes so accepted together with an Officers’ Officer’s Certificate stating the aggregate principal amount of Notes or portions thereof of Notes being purchased by the CompanyCompany in accordance with the terms of this covenant. The Paying Agent shall promptly mail deliver to each Holder of Notes so properly tendered and not withdrawn the Change of Control Payment for such Notes, and the Trustee shall will promptly authenticate and mail (or cause to be transferred by book entry) to each Holder a new Note equal in principal amount to any unpurchased portion of the Notes surrendered, if any; provided that each such new Note shall be , in a principal amount of $1,000 or an integral multiple thereof. The Company shall publicly announce the results of the Change of Control Offer on or as soon as practicable after accordance with Section 3.04(e).
(c) If the Change of Control Payment Date is on or after a Regular Record Date and on or before the related Interest Payment Date. The provisions set forth above that require the Company to make a Change of Control Offer following a Change of Control , any accrued and unpaid interest, if any, shall be applicable regardless of whether or not any other provisions of this Indenture are applicable. Notwithstanding anything paid on the relevant Interest Payment Date to the contrary Person in this Section 4.10, whose name a Note is registered at the close of business on such Regular Record Date.
(d) (i) 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 requirements set forth in this Section 4.10 Indenture applicable to a Change of Control Offer made by the Company and purchases all Notes validly properly tendered and not withdrawn under such Change of Control Offer; and (ii) the Company will not be required to make a Change of Control Offer if the Company has previously or concurrently exercised its right to redeem all of the Notes pursuant to Section 3.01 pursuant to a notice of redemption that is or has become unconditional.
(e) The Company or a third party may, at its option, redeem the Notes upon not less than ten nor more than 60 days’ notice, given not more than 30 days following the consummation of the Change of Control Offer, at a redemption price of 101.0% of the aggregate principal amount of the Notes redeemed, plus accrued and unpaid interest, if any, to the applicable redemption date (subject to the right of holders of record on the relevant record date to receive interest due on an interest payment date falling on or prior to such redemption date), in connection with the consummation of a Change of Control if at least 90.0% of the Notes outstanding prior to the Change of Control Payment Date are purchased pursuant to a Change of Control Offer with respect to such Change of Control.
(f) Notwithstanding anything to the contrary herein, a Change of Control Offer may be made in advance of a Change of Control, conditional upon such Change of Control.
Appears in 1 contract
Samples: Indenture (Maxar Technologies Inc.)
Offer to Repurchase Upon a Change of Control. (a) If a Change of Control occurs, unless Triggering Event occurs with respect to the Company has exercised its right to redeem the Notes under Section 3.07Notes, each Holder of Notes shall will have the right to require that the Company to repurchase purchase all or any part (equal to in amounts of $1,000 or an integral multiple whole multiples of $1,000 in excess thereof) of that such Holder’s Notes pursuant to a change of control the offer on described below (the terms set forth in this Indenture (a “Change of Control Offer”). In the Change of Control Offer, the Company shall will offer to purchase all of the Notes, at a payment purchase price (the “Change of Control Purchase Price”) in cash in an amount equal to 101% of the aggregate principal amount of Notes repurchased such Notes, plus accrued and unpaid interest and Liquidated Damagesinterest, if any, thereon, to the date of purchase (the “Change of Control PaymentPurchase Date”). , subject to the rights of Holders of record on relevant record dates to receive interest due on an Interest Payment Date.
(b) Within 30 days following after the date upon which any Change of ControlControl Triggering Event occurred or, at the Company’s option, prior to such Change of Control but after it is publicly announced, the Company shall mail a must notify the Trustee in writing and give written notice to each Holder at its registered address. The notice shall contain all instructions and materials necessary to enable such Holder to tender Notes pursuant to the Change of Control Offer. Any Change of Control Offer shall be made to all Holders. The notice, which shall govern the terms of the Change of Control OfferTriggering Event (the “Change of Control Purchase Notice”) to each Holder of Notes, shall by first-class mail, postage prepaid, at his address appearing in the security register. The Change of Control Purchase Notice must state: , among other things:
(1) that the a Change of Control Offer is being made pursuant to this Section 4.10; Triggering Event has occurred or will occur and the date of such event;
(2) the circumstances and relevant facts regarding such Change of Control Triggering Event;
(3) the Change of Control Payment Purchase Price and the date on Change of Control Purchase Date, which Notes tendered and accepted for payment shall be purchased, which date shall be at least fixed by the Company on a Business Day no earlier than 30 days and no nor later than 60 days from the date such the notice is mailed (mailed, or such later date as is necessary to comply with requirements under the “Exchange Act; provided that the Change of Control Payment Date”); Purchase Date may not occur prior to the Change of Control Triggering Event;
(34) that any Note not tendered or accepted for payment shall will continue to accrete or accrue interest; ;
(45) that, unless the Company defaults in making such paymentthe payment of the Change of Control Purchase Price, any Note Notes accepted for payment pursuant to the Change of Control Offer shall cease to accrete or accrue interest after the Change of Control Payment Purchase Date; and
(56) other procedures that a Holder of Notes must follow to accept a Change of Control Offer or to withdraw acceptance of the Change of Control Offer.
(c) Upon receipt by the Company of the proper tender of Notes, the Holder of the Note in respect of which such proper tender was made shall (unless the tender of such Note is properly withdrawn at least one Business Day prior to the Change of Control Purchase Date) thereafter be entitled to receive solely the Change of Control Purchase Price with respect to such Notes. Upon surrender of any such Note for purchase in accordance with the foregoing provisions, such Note shall be paid by the Company at the Change of Control Purchase Price; provided, however, that installments of interest whose Stated Maturity is on or prior to the Change of Control Purchase Date shall be payable to the Holders of such Notes, registered as such on the relevant record dates according to the terms and the provisions of Section 2.03. If any Note tendered for purchase in accordance with the provisions of this Section 4.11 shall not be so paid upon surrender thereof, the principal thereof (and premium, if any, thereon) shall, until paid, bear interest from the Change of Control Purchase Date at the rate borne by such Note. Holders electing to have a Note Notes purchased pursuant to any Change of Control Offer shall will be required to surrender the Note, with the form entitled “Option of Holder such Notes to Elect Purchase” on the reverse of the Note completed, or transfer by book-entry transfer, to the Company, a depositary, if appointed by the Company, or the Paying Agent at the address specified in the notice Change of Control Purchase Notice at least three days before one Business Day prior to the Change of Control Payment Purchase Date; (6) . Any Note that Holders is to be purchased only in part shall be entitled surrendered to withdraw their election a Paying Agent at the office of such Paying Agent (with, if the Company, the depositary Registrar or the Paying AgentTrustee so require, due endorsement by, or a written instrument of transfer in form satisfactory to the Company and the Registrar or the Trustee, as the case may be, receivesduly executed by, the Holder thereof or such Holder’s 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, one or more new Notes of any authorized denomination as requested by such Holder in an aggregate principal amount equal to, and in exchange for, the portion of the principal amount of the Note so surrendered that is not purchased.
(d) The Company shall (i) not later than the Change of Control Payment Purchase Date, accept for payment Notes or portions thereof tendered pursuant to the Change of Control Offer, (ii) not later than 1:00 p.m. (New York time) on the Business Day following the Change of Control Purchase Date, deposit with the Trustee or with a Paying Agent an amount of money in same day funds sufficient to pay the aggregate Change of Control Purchase Price of all the Notes or portions thereof which have been so accepted for payment and (iii) not later than 1:00 p.m. (New York time) on the Business Day following the Change of Control Purchase Date, deliver to the Paying Agent an Officers’ Certificate stating the Notes or portions thereof accepted for payment by the Company. The Paying Agent shall promptly mail or deliver to Holders of Notes so accepted payment in an amount equal to the Change of Control Purchase Price of the Notes purchased from each such Holder, and the Company shall execute and the Trustee shall promptly authenticate and mail or deliver to such Holders a new Note equal in principal amount to any unpurchased portion of the Note surrendered. Any Notes not so accepted shall be promptly mailed or delivered by the Paying Agent at the Company’s expense to the Holder thereof. The Company will publicly announce the results of the Change of Control Offer on the Change of Control Purchase Date. For purposes of this Section 4.11, the Company shall choose a Paying Agent which shall not be the Company.
(e) A tender made in response to a Change of Control Purchase Notice may be withdrawn if the Company receives, not later than one Business Day prior to the Change of Control Purchase Date, a notice setting forth telegram, telex, facsimile transmission or letter, specifying, as applicable:
(1) the name of the Holder, ;
(2) the certificate number of the Note in respect of which such notice of withdrawal is being submitted;
(3) the principal amount of the Note the Holder (which shall be $1,000 or whole multiples of $1,000 in excess thereof) delivered for purchase and by the Company as to which such notice of withdrawal is being submitted;
(4) a statement that such Holder is withdrawing his election to have such principal amount of such Note purchased; and
(75) that Notes and portions the principal amount, if any, of Notes purchased such Note (which shall be in amounts of $1,000 or whole multiples of $1,0001,000 in excess thereof) that remains subject to the original Change of Control Purchase Notice and that has been or will be delivered for purchase by the Company.
(f) The Trustee and the Paying Agent shall return to the Company, except upon its request, any cash that remains unclaimed for two years after a Change of Control Purchase Date together with interest or dividends, if any, thereon (subject to Section 7.01.(f)), held by them for the payment of the Change of Control Purchase Price; and the Holder of such tendered and accepted Note shall thereafter look only to the Company for payment thereof, and all liability of the Trustee or such Paying Agent with respect to such cash, and all liability of the Company as trustee thereof, shall thereupon cease; provided, however, that the Trustee or such Paying Agent, before being required to make any such repayment, shall at the expense of the Company cause to be published once in The New York Times and The Wall Street Journal (national edition) or send to each Holder entitled to such money notice that such money remains unclaimed and that, after a date specified therein, which shall not be less than 30 days from the date of such notification or publication, any unclaimed balance of such money then remaining shall be repaid to the Company; provided, further however, that (x) to the extent that the aggregate amount of cash deposited by the Company pursuant to clause (ii) of paragraph (d) of this Section 4.11 exceeds the aggregate Change of Control Purchase Price of the Notes of a Holder are or portions thereof to be purchased, then the entire outstanding amount of Notes held by Trustee shall hold such Holder, even if not a multiple of $1,000, shall be purchased; excess for the Company and (8) that Holders whose Notes were purchased only y) unless otherwise directed by the Company in part writing, promptly after the Business Day following the Change of Control Purchase Date the Trustee shall be issued new Notes equal in principal amount return any such excess to the unpurchased portion of the Notes surrendered Company together with interest, if any, thereon (or transferred by book-entry transfersubject to Section 7.01.(f), which unpurchased portion must be equal to $1,000 in principal amount or an integral multiple thereof. ).
(g) The Company shall comply with the requirements of applicable tender offer rules, including Rule 14e-1 under the Exchange Act Act, and any other applicable securities laws and or regulations thereunder to the extent such laws and regulations are applicable in connection with the repurchase of the Notes as a result of a Change of ControlControl Offer. To the extent that the provisions of any securities laws or regulations conflict with the Change of Control provisions of this IndentureSection 4.11, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under the Change of Control provisions of this Indenture Section 4.11 by virtue of such conflict. On the Change of Control Payment Date, the Company shall, to the extent lawful:.
(1h) accept for payment all Notes or portions thereof properly tendered pursuant to Notwithstanding the Change of Control Offer;
(2) deposit with the Paying Agent an amount equal to the Change of Control Payment in respect of all Notes or portions thereof so tendered; and
(3) 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. The Paying Agent shall promptly mail to each Holder of Notes so tendered the Change of Control Payment for such Notes, and the Trustee shall promptly authenticate and mail (or cause to be transferred by book entry) to each Holder a new Note equal in principal amount to any unpurchased portion of the Notes surrendered, if any; provided that each such new Note shall be in a principal amount of $1,000 or an integral multiple thereof. The Company shall publicly announce the results of the Change of Control Offer on or as soon as practicable after the Change of Control Payment Date. The provisions set forth above that require the Company to make a Change of Control Offer following a Change of Control shall be applicable regardless of whether or not any other provisions of this Indenture are applicable. Notwithstanding anything to the contrary in this Section 4.10foregoing, the Company shall not be required to make a Change of Control Offer (i) upon a Change of Control Triggering Event if a third party makes the Change of Control Offer in the manner, at the times and otherwise in compliance with the requirements set forth in this Section 4.10 Indenture applicable to a Change of Control Offer made by the Company and purchases all Notes validly tendered and not withdrawn under such Change of Control OfferOffer or (ii) if notice of redemption for 100% of the aggregate principal amount of the outstanding Notes in respect of which a Change of Control Triggering Event occurred has been given pursuant to Section 3.07, unless and until there is a default in payment of the applicable redemption price.
(i) In the event that Holders of not less than 90% of the aggregate principal amount of the outstanding Notes accept a Change of Control Offer and the Company purchases all of the Notes held by such Holders, the Company will have the right, upon not less than 30 nor more than 60 days’ prior notice, given not more than 30 days following the purchase pursuant to the Change of Control Offer described under this Section 4.11, to redeem all of the Notes that remain outstanding following such purchase at a redemption price equal to 101% of the aggregate principal amount of Notes redeemed plus accrued and unpaid interest, if any, thereon to the date of redemption, subject to the right of the Holders of record on relevant record dates to receive interest due on an Interest Payment Date.
Appears in 1 contract
Offer to Repurchase Upon a Change of Control. If (a) Upon the occurrence of a Change of Control occurs, unless the Company has exercised its right to redeem the Notes under Section 3.07Control, each Holder of Notes shall have the right to require the Company to repurchase all or any part (equal to $1,000 or an integral multiple thereof) of that Holder’s Notes 's Securities pursuant to a change the Change of control Control offer on the terms set forth in this Indenture (a “"Change of Control Offer”). In the Change of Control Offer, the Company shall ") at an offer a payment price in cash equal to 101% of the aggregate principal amount of Notes Securities repurchased plus accrued and unpaid interest and Liquidated Damages, if any, thereon, on the Securities repurchased to the date of purchase (the “"Change of Control Payment”"). Within 30 days following any Change of Control, the Company shall mail a notice to each Holder at its registered address. The notice shall contain all instructions and materials necessary to enable such Holder to tender Notes pursuant to stating:
(1) the transaction or transactions that constitute the Change of Control Offer. Any Change of Control Offer shall be made to all Holders. The notice, which shall govern the terms of the Change of Control Offer, shall state: Control;
(12) that the Change of Control Offer is being made pursuant to this Section 4.10; 3.17 and that all Securities tendered shall be accepted for payment;
(23) the Change of Control Payment purchase price and the date on which Notes tendered and accepted for payment shall be purchasedpurchase date, which date shall be at least no earlier than 30 days and no later than 60 days from the date such the notice is mailed (the “"Change of Control Payment Date”"); ;
(34) that any Note Security not tendered or accepted for payment properly withdrawn shall continue to accrete or accrue interest; ;
(45) that, unless the Company defaults in making such paymentthe payment of the Change of Control Payment, any Note all Securities accepted for payment pursuant to the Change of Control Offer shall cease to accrete or accrue interest after the Change of Control Payment Date; ;
(56) that Holders electing to have a Note any Securities purchased pursuant to any a Change of Control Offer shall be required to surrender the NoteSecurities, with the form entitled “"Option of Holder to Elect Purchase” " on the reverse of the Note Securities completed, or transfer by book-entry transfer, to the Company, a depositary, if appointed by the Company, or the Paying Agent at the address addresses specified in the notice at least three days before prior to the close of business on the third Business Day preceding the Change of Control Payment Date; ;
(67) that Holders shall be entitled to withdraw their election if the Company, the depositary or the applicable Paying Agent, as the case may be, Agent receives, not later than the close of business on the second Business Day preceding the Change of Control Payment Date, a notice telegram, telex, facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Note the Holder Securities delivered for purchase purchase, and a statement that such Holder is withdrawing his election to have such Note the Securities purchased; (7) that Notes and portions of Notes purchased shall be in amounts of $1,000 or whole multiples of $1,000, except that if all of the Notes of a Holder are to be purchased, the entire outstanding amount of Notes held by such Holder, even if not a multiple of $1,000, shall be purchased; and and
(8) that Holders whose Notes were Securities are being purchased only in part shall be issued new Notes Securities equal in principal amount to the unpurchased portion of the Notes surrendered (or transferred by book-entry transfer)Securities surrendered, which unpurchased portion must be equal to $1,000 in principal amount or an integral multiple thereof. The Company shall comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws and regulations are applicable in connection with the repurchase of the Notes as a result of a Change of Control. To the extent that the provisions of any securities laws or regulations conflict with the Change of Control provisions of this Indenture, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under the Change of Control provisions of this Indenture by virtue of such conflict. .
(b) On the Change of Control Payment Date, the Company shall, to the extent lawful:
(1) accept for payment all Notes Securities or portions thereof of Securities validly tendered and not properly tendered withdrawn pursuant to the Change of Control Offer;
(2) deposit with the Paying Agent Agents, an amount equal to the Change of Control Payment in respect of all Notes Securities or portions thereof so tenderedof Securities properly tendered and not properly withdrawn pursuant to the Change of Control Offer; and
(3) deliver or cause to be delivered to the Trustee the Notes Securities so accepted together with an Officers’ Officer's Certificate stating the aggregate principal amount of Notes Securities or portions thereof of Securities being purchased by the Company. .
(c) The Paying Agent Agents shall promptly mail to each Holder of Notes so Securities validly tendered and not properly withdrawn the Change of Control Payment for such NotesSecurities, and the Trustee shall promptly authenticate and mail (or cause to be transferred by book entry) to each Holder a new Note Security equal in principal amount to any unpurchased portion of the Notes Securities surrendered, if any; provided that each such new Note shall Security will be in a principal amount of $1,000 or an integral multiple thereof. .
(d) The Company shall publicly announce the results of the Change of Control Offer on or as soon as practicable after the Change of Control Payment Date. .
(e) The provisions set forth above that require the Company to make a Change of Control Offer following a Change of Control shall be applicable regardless of whether or not any other provisions of this Indenture are applicable. Notwithstanding anything to the contrary in this Section 4.10, 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 requirements set forth in this Section 4.10 Indenture applicable to a Change of Control Offer made by the Company and purchases all Notes Securities validly tendered and not withdrawn properly under such Change of Control Offer.
(f) The Company shall comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent those laws and regulations are applicable in connection with the repurchase of the Securities as a result of a Change of Control. To the extent that the provisions of any securities laws or regulations conflict with the Change of Control provisions of this Indenture, the Company shall comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under this Section 3.17 by virtue of such conflict.
Appears in 1 contract
Samples: Indenture (Dana Corp)
Offer to Repurchase Upon a Change of Control. If (a) Upon the occurrence of a Change of Control occurs, unless the Company has exercised its right to redeem the Notes under Section 3.07Control, each Holder of Notes shall have the right to require the Company to repurchase all or any part (equal to $1,000 or an integral multiple thereof) of that such Holder’s 's Notes pursuant to a change of control the offer on described below (the terms set forth in this Indenture (a “"Change of Control Offer”). In the Change of Control Offer, the Company shall ") at an offer a payment price in cash equal to 101% of the aggregate principal amount of Notes repurchased thereof plus accrued and unpaid interest and Liquidated Damagesthereon, if any, thereon, to the date of purchase (the “"Change of Control Payment”"). .
(b) Within 30 days following any Change of Control, or at the Company's option, prior to such Change of Control but after it is publicly announced, the Company shall mail a notify the Trustee thereof and give written notice of such Change of Control to each Holder of Notes by first-class mail, postage prepaid, at its registered address. The notice shall contain all instructions and materials necessary to enable such Holder to tender Notes pursuant to address appearing in the Change of Control Offer. Any Change of Control Offer shall be made to all Holders. The notice, which shall govern the terms of the Change of Control Offer, shall state: security register stating:
(1i) that the Change of Control Offer is being made pursuant to this Section 4.10; 4.15 and that all Notes tendered will be accepted for payment;
(2ii) the purchase price and the purchase date, which will be a Business Day (i) no earlier than the later of (a) 30 days from the date such notice is mailed and (b) the date of the Change of Control Payment Control, and the date on which Notes tendered and accepted for payment shall be purchased, which date shall be at least 30 days and (ii) no later than 60 days from the date such notice is mailed or such later date as is necessary to comply with the requirements under the Exchange Act (the “"Change of Control Payment Date”"); ;
(3iii) that any Note not tendered or accepted for payment shall will continue to accrete or accrue interest; ;
(4iv) that, unless the Company defaults in making such paymentthe payment of the Change of Control Payment, any Note all Notes accepted for payment pursuant to the Change of Control Offer shall cease to accrete or accrue interest after the Change of Control Payment Date; ;
(5v) that Holders electing to have a Note any Notes purchased pursuant to any a Change of Control Offer shall will be required to surrender the NoteNotes, with the form entitled “"Option of Holder to Elect Purchase” " on the reverse of the Note completed, Notes completed or transfer by book-book entry transfer, to the Company, a depositary, if appointed by the Company, or the Paying Agent at the address specified in the notice at least three days before prior to the close of business on the third Business Day preceding the Change of Control Payment Date; ;
(6vi) that Holders shall will be entitled to withdraw their election if the Company, the depositary or the Paying Agent, as the case may be, Agent receives, not later than the close of business on the second Business Day preceding the Change of Control Payment Date, a notice telegram, telex, facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Note the Holder Notes delivered for purchase purchase, and a statement that such Holder is withdrawing his its election to have such Note the Notes purchased; and;
(7vii) that Notes and portions of Notes purchased shall be in amounts of $1,000 or whole multiples of $1,000, except that if all of the Notes of a Holder are to be purchased, the entire outstanding amount of Notes held by such Holder, even if not a multiple of $1,000, shall be purchased; and (8) that Holders whose Notes were are being purchased only in part shall will be issued new Notes equal in principal amount to the unpurchased portion of the Notes surrendered (or transferred by book-entry transfer)surrendered, which unpurchased portion must be equal to $1,000 in principal amount or an integral multiple thereof. The Company shall comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws and regulations are applicable in connection with the repurchase of the Notes as a result of a Change of Control. To the extent that the provisions of any securities laws or regulations conflict with the Change of Control provisions of this Indenture, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under the Change of Control provisions of this Indenture by virtue of such conflict. On .
(c) By 2:00 p.m. Eastern Time on the Change of Control Payment Date, the Company shall, to the extent lawful:
, (1i) accept for payment all Notes or portions thereof properly tendered pursuant to the Change of Control Offer;
, (2ii) deposit with the Paying Agent an amount equal to the Change of Control Payment in respect of all Notes or portions thereof so tendered; and
tendered and (3iii) 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. The Paying Agent shall promptly mail to each Holder of Notes so tendered the Change of Control Payment for such Notes, and the Trustee shall promptly authenticate and mail (or cause to be transferred by book entry) to each Holder a new Note equal in principal amount to any unpurchased portion of the Notes surrendered, if any; provided that each such new Note shall be in a principal amount of $1,000 or an integral multiple thereof. The Company shall publicly announce the results of the Change of Control Offer on or as soon as practicable after the Change of Control Payment Date. The provisions set forth above that require the Company to make a Change of Control Offer following a Change of Control shall be applicable regardless of whether or not any other provisions of this Indenture are applicable. .
(d) Notwithstanding anything to the contrary in this Section 4.104.15, 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 requirements set forth in this Section 4.10 4.15 and all other provisions of this Indenture applicable to a Change of Control Offer made by the Company and purchases all Notes validly tendered and not withdrawn under such Change of Control Offer.
(e) The Company shall comply with the applicable tender offer rules including Rule 14e-1 under the Exchange Act, and any other applicable securities laws and regulations in connection with a Change of Control Offer. To the extent that the provisions of any securities laws or regulations conflict with the "Change of Control" provisions of this Indenture, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under the "Change of Control" provisions of this Indenture by virtue thereof.
Appears in 1 contract
Samples: Indenture (Renal Care Group Inc)
Offer to Repurchase Upon a Change of Control. If (a) Upon the occurrence of a Change of Control occurs, unless the Company has exercised its right to redeem the Notes under Section 3.07Control, each Holder of Notes shall have the right to require the Company to repurchase all or any part (equal to $1,000 or an integral multiple thereof) of that such Holder’s 's Notes pursuant to a change of control the offer on described below (the terms set forth in this Indenture (a “Change of Control Offer”). In the Change of Control Offer, the Company shall "CHANGE OF CONTROL OFFER") at an offer a payment price in cash equal to 101% of the aggregate principal amount of Notes repurchased thereof plus accrued and unpaid interest and Liquidated DamagesDamages thereon, if any, thereon, to the date of purchase (the “Change of Control Payment”"CHANGE OF CONTROL PAYMENT"). Within 30 days following any Change of Control, the Company shall notify the Trustee thereof and mail a notice notice, by first-class mail, postage prepaid, to each Holder at its registered address. The notice shall contain all instructions and materials necessary to enable such Holder to tender Notes pursuant to Holder, describing the transaction or transactions that constitute the Change of Control Offer. Any Change of Control Offer shall be made to all Holders. The notice, which shall govern the terms of the Change of Control Offer, shall state: and stating (1) that the Change of Control Offer is being made pursuant to this Section 4.104.14 and that all Notes tendered will be accepted for payment; (2) the Change of Control Payment purchase price and the date on purchase date, which Notes tendered and accepted for payment shall be purchased, which date shall be at least no earlier than 30 days and no later than 60 days from the date such notice is mailed or such later date as is necessary to comply with the requirements under the Exchange Act (the “Change of Control Payment Date”"CHANGE OF CONTROL PAYMENT DATE"); (3) that any Note not tendered or accepted for payment shall will continue to accrete or accrue interest; (4) that, unless the Company defaults in making such paymentthe payment of the Change of Control Payment, any Note all Notes accepted for payment pursuant to the Change of Control Offer shall cease to accrete or accrue interest after the Change of Control Payment Date; (5) that Holders electing to have a Note any Notes purchased pursuant to any a Change of Control Offer shall will be required to surrender the NoteNotes, with the form entitled “"Option of Holder to Elect Purchase” " on the reverse of the Note Notes completed, or transfer by book-entry transfer, to the Company, a depositary, if appointed by the Company, or the Paying Agent at the address specified in the notice at least three days before prior to the close of business on the third Business Day preceding the Change of Control Payment Date; (6) that Holders shall will be entitled to withdraw their election if the Company, the depositary or the Paying Agent, as the case may be, Agent receives, not later than the close of business on the second Business Day preceding the Change of Control Payment Date, a notice telegram, telex, facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Note the Holder Notes delivered for purchase purchase, and a statement that such Holder is withdrawing his its election to have such Note the Notes purchased; and (7) that Notes and portions of Notes purchased shall be in amounts of $1,000 or whole multiples of $1,000, except that if all of the Notes of a Holder are to be purchased, the entire outstanding amount of Notes held by such Holder, even if not a multiple of $1,000, shall be purchased; and (8) that Holders whose Notes were are being purchased only in part shall will be issued new Notes equal in principal amount to the unpurchased portion of the Notes surrendered (or transferred by book-entry transfer)surrendered, which unpurchased portion must be equal to $1,000 in principal amount or an integral multiple thereof. The Company shall comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws and regulations are applicable in connection with the repurchase of the Notes as a result of a Change of Control. To the extent that the provisions of any securities laws or regulations conflict with the provisions of this Indenture relating to such Change of Control provisions of this IndentureOffer, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under the Change of Control provisions of described in this Indenture by virtue of such conflict. On thereof.
(b) By 2:00 p.m. Eastern Time on the Change of Control Payment Date, the Company shall, to the extent lawful:
, (1) accept for payment all Notes or portions thereof properly tendered pursuant to the Change of Control Offer;
, (2) deposit with the Paying Agent an amount equal to the Change of Control Payment in respect of all Notes or portions thereof so tendered; and
tendered and (3) 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. The Paying Agent shall promptly mail to each Holder of Notes so tendered the Change of Control Payment for such Notes, and the Trustee shall promptly authenticate and mail (or cause to be transferred by book entry) to each Holder a new Note equal in principal amount to any unpurchased portion of the Notes surrendered, if any; provided that each such new Note shall be in a principal amount of $1,000 or an integral multiple thereof. The Company shall publicly announce the results of the Change of Control Offer on or as soon as practicable after the Change of Control Payment Date. The provisions set forth above that require the Company to make a Change of Control Offer following a Change of Control shall be applicable regardless of whether or not any other provisions of this Indenture are applicable. .
(c) Notwithstanding anything to the contrary in this Section 4.104.14, 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 requirements set forth in this Section 4.10 4.14 and Section 3.09 hereof and all other provisions of this Indenture applicable to a Change of Control Offer made by the Company and purchases all Notes validly tendered and not withdrawn under such Change of Control Offer.
Appears in 1 contract
Samples: Indenture (IMI of Arlington, Inc.)
Offer to Repurchase Upon a Change of Control. (a) If a Change of Control occurs, unless the Company has previously or concurrently exercised its right to redeem all of the Notes under pursuant to Section 3.07, each Holder of Notes shall will have the right to require the Company to repurchase all or any part (equal to $1,000 2,000 or an integral multiple thereofof $1,000 in excess of $2,000 or $1.00 or an integral multiple thereof in the case of any PIK Interest Notes) of that such Holder’s Notes pursuant to at a change of control offer on the terms set forth in this Indenture (a “Change of Control Offer”). In the Change of Control Offer, the Company shall offer a payment purchase price in cash equal to 101% of the aggregate principal amount of the Notes repurchased plus accrued and unpaid interest and Liquidated Damagesinterest, if any, thereon, to the date of purchase (subject to the right of Holders of record on the relevant record date to receive interest due on the relevant Interest Payment Date).
(b) Within 30 days following any Change of Control, unless the Company has previously or concurrently exercised its right to redeem all of the Notes pursuant to Section 3.07, the Company shall deliver a notice (the “Change of Control Offer”) to each Holder, with a copy to the Trustee, stating, among other things:
(1) that a Change of Control has occurred and that such Holder has the right to require the Company to purchase such Holder’s Notes at a purchase price in cash equal to 101% of the principal amount of such Notes plus accrued and unpaid interest, if any, to the date of purchase (subject to the right of Holders of record on a record date to receive interest on the relevant Interest Payment Date) (the “Change of Control Payment”). Within 30 days following any Change of Control, the Company shall mail a notice to each Holder at its registered address. The notice shall contain all instructions and materials necessary to enable such Holder to tender Notes pursuant to the Change of Control Offer. Any Change of Control Offer shall be made to all Holders. The notice, which shall govern the terms of the Change of Control Offer, shall state: (1) that the Change of Control Offer is being made pursuant to this Section 4.10; ;
(2) the Change of Control Payment and the repurchase date on (which Notes tendered and accepted for payment shall be purchased, which date shall be at least no earlier than 30 days and no nor later than 60 days from the date such notice is mailed mailed) (the “Change of Control Payment Date”); ;
(3) that any Note not properly tendered or accepted for payment shall will remain outstanding and continue to accrete or accrue interest; ;
(4) that, that unless the Company defaults in making such paymentthe payment of the Change of Control Payment, any Note all Notes accepted for payment pursuant to the Change of Control Offer shall will cease to accrete or accrue interest after on the Change of Control Payment Date; ;
(5) that Holders electing to have a Note any Notes in certificated form purchased pursuant to any a Change of Control Offer shall will be required to surrender the Notesuch Notes, with the form entitled “Option of Holder to Elect Purchase” on the reverse of the Note such Notes completed, or transfer by book-entry transfer, to the Company, a depositary, if appointed by paying agent specified in the Company, or the Paying Agent notice at the address specified in the notice at least three days before prior to the close of business on the third Business Day preceding the Change of Control Payment Date; ;
(6) that Holders shall will be entitled to withdraw their tendered Notes and their election if to require the CompanyCompany to purchase such Notes, provided, however that the depositary or the Paying Agent, as the case may be, paying agent receives, not later than the close of business on the third Business Day preceding the Change of Control Payment Date, a notice setting forth telegram, telex, facsimile transmission or letter complying with the name requirements of the Holder, the principal amount of the Note the Holder delivered for purchase and a statement that such Holder is withdrawing his election to have such Note purchased; Section 7.30(f) below;
(7) that Notes and portions of Notes purchased shall be in amounts of $1,000 or whole multiples of $1,000, except that if all the Company is repurchasing a portion of the Notes Note of a Holder are to be purchasedany Holder, the entire outstanding amount of Notes held by such Holder, even if not a multiple of $1,000, shall be purchased; and (8) that Holders whose Notes were purchased only in part shall Holder will be issued a new Notes Note equal in principal amount to the unpurchased portion of the Notes surrendered (or transferred by book-entry transfer)Note surrendered, which provided, however that the unpurchased portion of the Note must be equal to a minimum principal amount of $2,000 and an integral multiple of $1,000 in principal amount excess of $2,000 (or $1.00 or an integral multiple thereof. The Company shall comply with thereof in the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws and regulations are applicable in connection with the repurchase of the Notes as a result of a Change of Control. To the extent that the provisions case of any securities laws or regulations conflict PIK Interest Notes); and
(8) other procedures determined by the Company, consistent with the Change of Control provisions of this Indenture, the Company shall comply with the applicable securities laws and regulations and shall not be deemed that a Holder must follow in order to have breached its obligations under the Change of Control provisions of this Indenture by virtue of such conflict. Notes repurchased.
(c) On the Change of Control Payment Date, the Company shallwill, to the extent lawful:
(1) accept for payment all Notes or portions of Notes (in a minimum principal amount of $2,000 and integral multiples of $1,000 in excess of $2,000 or $1.00 or an integral multiple thereof in the case of any PIK Interest Notes) properly tendered pursuant to the Change of Control OfferOffer and not properly withdrawn;
(2) deposit with the Paying Agent paying agent an amount in United States dollars equal to the Change of Control Payment in respect of all Notes or portions thereof so tenderedof Notes accepted for payment, provided, however, that the funds once deposited are to be uninvested until disbursed pursuant to this Section 7.30; and
(3) 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 of Notes being purchased by the Company. .
(d) The Paying Agent shall paying agent will promptly mail or deliver to each Holder of Notes so tendered accepted for payment the Change of Control Payment for such Notes, and the Trustee shall will promptly authenticate and mail (or cause to be transferred by book entry) to each Holder a new Note equal in principal amount to any unpurchased portion of the Notes surrendered, if any; provided provided, however that each such new Note shall will be in a minimum principal amount of $1,000 2,000 or an integral multiple thereof. The Company shall publicly announce of $1,000 in excess of $2,000 (or $1.00 or an integral multiple thereof in the results case of any PIK Interest Notes).
(e) If the Change of Control Offer Payment Date is on or as soon as practicable after an interest record date and on or before the related Interest Payment Date, any accrued and unpaid interest, will be paid to the Person in whose name a Note is registered at the close of business on such record date, and no further interest will be payable to Holders who tender pursuant to the Change of Control Offer.
(f) A tender made in response to a Change of Control Payment Notice may be withdrawn if the Company receives, not later than the third Business Day prior to the Change of Control Payment Date. The provisions set forth above that require , a telegram, telex, electronic mail, facsimile transmission or letter, specifying, as applicable: (1) the name of the Holder; (2) the certificate number of the Note in respect of which such notice of withdrawal is being submitted; (3) the principal amount of the Note (which shall be $2,000 or whole multiples of $1,000 in excess thereof or $1.00 or an integral multiple thereof in the case of any PIK Interest Notes) delivered for purchase by the Company as to make which such notice of withdrawal is being submitted; (4) a statement that such Holder is withdrawing his election to have such principal amount of such Note purchased; and (5) the principal amount, if any, of such Note (which shall be $2,000 or whole multiples of $1,000 in excess thereof or $1.00 or an integral multiple thereof in the case of any PIK Interest Notes) that remains subject to the original Change of Control Payment Notice and that has been or will be delivered for purchase by the Company.
(g) Subject to applicable unclaimed property laws, the Trustee and the Paying Agent shall return to the Company, upon its request, any cash that remains unclaimed for two years after a Change of Control Offer Payment Date together with interest or dividends, if any, thereon (subject to Section 10.01(f)), held by them for the payment of the Change of Control Payment; and the Holder of such tendered and accepted Note shall thereafter look only to the Company for payment thereof, and all liability of the Trustee or such Paying Agent with respect to such cash, and all liability of the Company as trustee thereof, shall thereupon cease; provided, however, that the Trustee or such Paying Agent, before being required to make any such repayment, shall at the expense of the Company comply with the Commission Regulation 17AD-17 as it applies to lost bondholders; provided, further that (x) to the extent that the aggregate amount of cash deposited by the Company pursuant to clause (2) of paragraph (c) of this Section 7.30 exceeds the aggregate Change of Control Payment of the Notes or portions thereof to be purchased, then the Trustee shall hold such excess for the Company and (y) unless otherwise directed by the Company in writing, promptly after the Business Day following the Change of Control Payment Date the Trustee shall return any such excess to the Company together with interest, if any, thereon (subject to Section 10.01(f)).
(h) The Company shall comply, to the extent applicable, with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws or regulations in connection with the repurchase of Notes as a result of a Change of Control shall be applicable regardless of whether or not any other Control. To the extent that the provisions of this Indenture are applicable. Notwithstanding anything to the contrary in any securities laws or regulations conflict with this Section 4.107.30, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under this Section 7.30 by virtue of such conflict.
(i) Notwithstanding the foregoing, 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 requirements set forth in this Section 4.10 Indenture applicable to a Change of Control Offer made by the Company and purchases all Notes validly tendered and not withdrawn under such Change of Control Offer.
(j) In the event that Holders of not less than 90% of the aggregate principal amount of the outstanding Notes validly tender and do not withdraw such Notes in a Change of Control Offer and the Company, or any third party making a Change of Control Offer in lieu of the Company pursuant to Section 7.30(i) above, purchases all of the Notes validly tendered and not withdrawn by such Holders, the Company will have the right, upon not less than 30 nor more than 60 days’ prior written notice, given not more than 30 days following the purchase pursuant to the Change of Control Offer described under this Section 7.30, to redeem all of the Notes that remain outstanding following such purchase at a redemption price in cash equal to the applicable Change of Control Payment plus, to the extent not included in the Change of Control Payment, accrued and unpaid interest, if any, to the date of redemption.
(k) A Change of Control Offer may be made in advance of a Change of Control, and conditioned upon the occurrence of a Change of Control, if a definitive agreement is in place for the Change of Control at the time of making of the Change of Control Offer.
Appears in 1 contract
Samples: Indenture (Goodrich Petroleum Corp)
Offer to Repurchase Upon a Change of Control. (a) If a Change of Control occurs, unless the Company has exercised its right to redeem the Notes under Section 3.07, each Holder of Notes shall have the right to require the Company to repurchase all or any part (equal to $1,000 or an integral multiple thereofof $1,000) of that Holder’s Notes 's Securities pursuant to a change the Change of control Control offer on the terms set forth in this Indenture (a “Change of Control Offer”"CHANGE OF CONTROL OFFER"). In the Change of Control Offer, the Company shall offer a payment Change of Control Payment in cash equal to 101% of the aggregate principal amount of Notes Securities repurchased plus accrued and unpaid interest and Liquidated Damages, if any, thereon, on the Securities repurchased to the date of purchase (the “Change of Control Payment”)purchase. Within 30 days following any Change of Control, the Company shall mail a notice to each Holder at its registered address. The notice shall contain all instructions and materials necessary to enable such Holder to tender Notes pursuant to stating:
(i) the transaction or transactions that constitute the Change of Control Offer. Any Change of Control Offer shall be made to all Holders. The notice, which shall govern the terms of the Change of Control Offer, shall state: and Ratings Event;
(1ii) that the Change of Control Offer is being made pursuant to this Section 4.10; SECTION 5.9 and that all Securities tendered shall be accepted for payment;
(2iii) the Change of Control Payment purchase price and the date on which Notes tendered and accepted for payment shall be purchasedpurchase date, which date shall be at least no earlier than 30 days and no later than 60 days from the date such the notice is mailed (the “Change of Control Payment Date”"CHANGE OF CONTROL PAYMENT DATE"); ;
(3iv) that any Note Security not tendered or accepted for payment shall continue to accrete or accrue interest; ;
(4v) that, unless the Company defaults in making such paymentthe payment of the Change of Control Payment, any Note all Securities accepted for payment pursuant to the Change of Control Offer shall cease to accrete or accrue interest after the Change of Control Payment Date; ;
(5vi) that Holders electing to have a Note any Securities purchased pursuant to any a Change of Control Offer shall be required to surrender the NoteSecurities, with the form entitled “"Option of Holder to Elect Purchase” " on the reverse of the Note Securities completed, or transfer by book-entry transfer, to the Company, a depositary, if appointed by the Company, or the Paying Agent at the address specified in the notice at least three days before prior to the close of business on the third Business Day preceding the Change of Control Payment Date; ;
(6vii) that Holders shall be entitled to withdraw their election if the Company, the depositary or the Paying Agent, as the case may be, Agent receives, not later than the close of business on the second Business Day preceding the Change of Control Payment Date, a notice telegram, telex, facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Note the Holder Securities delivered for purchase purchase, and a statement that such Holder is withdrawing his election to have such Note the Securities purchased; and
(7viii) that Notes and portions of Notes purchased shall be in amounts of $1,000 or whole multiples of $1,000, except that if all of the Notes of a Holder are to be purchased, the entire outstanding amount of Notes held by such Holder, even if not a multiple of $1,000, shall be purchased; and (8) that Holders whose Notes were Securities are being purchased only in part shall be issued new Notes Securities equal in principal amount to the unpurchased portion of the Notes surrendered (or transferred by book-entry transfer)Securities surrendered, which unpurchased portion must be equal to $1,000 in principal amount or an integral multiple thereof. The Company shall comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such those laws and regulations are applicable in connection with the repurchase of the Notes Securities as a result of a Change of Control. To the extent that the provisions of any securities laws or regulations conflict with the Change of Control provisions of this Indenture, the Company shall comply with the applicable securities laws and regulations and shall will not be deemed to have breached its obligations under the Change of Control provisions of this Indenture by virtue of such conflict. .
(b) On the Change of Control Payment Date, the Company shall, to the extent lawful:
(1i) accept for payment all Notes Securities or portions thereof of Securities properly tendered pursuant to the Change of Control Offeroffer;
(2ii) deposit with the Paying Agent an amount equal to the Change of Control Payment in respect of all Notes Securities or portions thereof so of Securities properly tendered; and
(3iii) deliver or cause to be delivered to the Trustee the Notes Securities so accepted together with an Officers’ ' Certificate stating the aggregate principal amount of Notes Securities or portions thereof of Securities being purchased by the Company. The Paying Agent shall promptly mail to each Holder of Notes so Securities properly tendered the Change of Control Payment for such NotesSecurities, and the Trustee shall promptly authenticate and mail (or cause to be transferred by book entry) to each Holder a new Note Security equal in principal amount to any unpurchased portion of the Notes Securities surrendered, if any; provided that each such new Note shall Security will be in a principal amount of $1,000 or an integral multiple thereofof $1,000. The Company shall publicly announce the results of the Change of Control Offer on or as soon as practicable after the Change of Control Payment Date. The provisions set forth described above that require the Company to make a Change of Control Offer following a Change of Control shall will be applicable regardless of whether or not any other provisions of this Indenture are applicable. Notwithstanding anything Except as described above with respect to a Change of Control, this Indenture does not contain provisions that permit the contrary Holders of the Securities to require that the Company repurchase or redeem the Securities in this Section 4.10the event of a takeover, the recapitalization or similar transaction. 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 requirements set forth in this Section 4.10 Indenture applicable to a Change of Control Offer made by the Company and purchases all Notes validly Securities properly tendered and not withdrawn under such Change of Control Offer. The definition of Change of Control includes a phrase relating to the direct or indirect sale, lease, transfer, conveyance or other disposition of "all or substantially all" of the properties or assets of the Company and its Subsidiaries taken as a whole. Although there is a limited body of case law interpreting the phrase "substantially all," there is no precise established definition of the phrase under applicable law. Accordingly, the ability of a Holder of Securities to require the Company to repurchase such Securities as a result of a sale, lease, transfer, conveyance or other disposition of less than all of the assets of the Company and its Subsidiaries taken as a whole to another Person or group may be uncertain.
Appears in 1 contract
Offer to Repurchase Upon a Change of Control. If a Change of Control occurs, unless the Company has exercised its right to redeem all the Notes under Section 3.073.08 hereof, each Holder of Notes shall have the right to require the Company to repurchase all or any part (equal to $2,000 or integral multiples of $1,000 or an integral multiple in excess thereof) of that Holder’s Notes pursuant to a change of control offer on the terms set forth in this Indenture (a “Change of Control Offer”). In the Change of Control Offer, the Company shall offer a payment in cash equal to 101% of the aggregate principal amount of Notes repurchased repurchased, plus accrued and unpaid interest and Liquidated Damages, if any, thereon, to (but not including) the date of purchase (the “Change of Control Payment”). Within 30 days following any Change of ControlControl or, at the Company’s option, prior to the consummation of such Change of Control but after the public announcement thereof, the Company shall mail provide a notice to each Holder at its registered addressaddress (with a copy to the Trustee) describing the transaction or transactions that constitute the Change of Control and offering to repurchase Notes on the date specified in such notice. The notice shall contain all instructions and materials necessary to enable such Holder to tender Notes pursuant to the Change of Control Offer. Any Change of Control Offer shall be made to all Holders. The notice, which shall govern the terms of the Change of Control Offer, shall state: (1) that the Change of Control Offer is being made pursuant to this Section 4.104.08; (2) the Change of Control Payment and the date on which Notes tendered and accepted for payment shall be purchased, which date shall be at least no earlier than 30 days and no later than 60 days from the date such notice is mailed provided (other than as required by law) (the “Change of Control Payment Date”); (3) that any Note not tendered or accepted for payment shall continue to accrete or accrue interest; (4) that, unless the Company defaults in making such payment, any Note accepted for payment pursuant to the Change of Control Offer shall cease to accrete or accrue interest after the Change of Control Payment Date; (5) that Holders electing to have a Note purchased pursuant to any Change of Control Offer shall be required to surrender the Note, with the form entitled “Option of Holder to Elect Purchase” on the reverse of the Note completed, or transfer by book-entry transfer, to the Company, a depositary, if appointed by the Company, or the Paying Agent at the address specified in the notice at least three days before the Change of Control Payment Date; (6) that Holders shall be entitled to withdraw their election if the Company, the depositary or the Paying Agent, as the case may be, receives, not later than the Change of Control Payment Date, a notice setting forth the name of the Holder, the principal amount of the Note the Holder delivered for purchase and a statement that such Holder Xxxxxx is withdrawing his election to have such Note purchased; (7) that Notes and portions of Notes purchased shall be in amounts of $1,000 2,000 or whole multiples an integral multiple of $1,0001,000 in excess thereof, except that if all of the Notes of a Holder are to be purchased, the entire outstanding amount of Notes held by such Holder, even if not a $2,000 or an integral multiple of $1,0001,000 in excess thereof, shall be purchased; and (8) that Holders whose Notes were purchased only in part shall be issued new Notes equal in principal amount to the unpurchased portion of the Notes surrendered (or transferred by book-entry transfer), which unpurchased portion must be equal to $1,000 in principal amount 2,000 or an integral multiple of $1,000 in excess thereof. The Company shall comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws and regulations are applicable in connection with the repurchase of the Notes as a result of a Change of Control. To the extent that the provisions of any securities laws or regulations conflict with the Change of Control provisions of this Indenture, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under the Change of Control provisions of this Indenture by virtue of such conflict. On the Change of Control Payment Date, the Company shall, to the extent lawful:
(1) accept for payment all Notes or portions thereof properly tendered pursuant to the Change of Control Offer;
(2) deposit with the Paying Agent an amount equal to the Change of Control Payment in respect of all Notes or portions thereof so tendered; and
(3) 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. The Paying Agent shall promptly mail cause to be delivered to each Holder of Notes so tendered the Change of Control Payment for such Notes, and the Trustee (or an authentication agent appointed by it) shall promptly authenticate and mail (or cause to be transferred by book entry) to each Holder a new Note equal in principal amount to any unpurchased portion of the Notes surrendered, if any; provided that each such new Note shall be in a principal amount of $1,000 2,000 or an integral multiple of $1,000 in excess thereof. The Company shall publicly announce the results of the Change of Control Offer on or as soon as practicable after the Change of Control Payment Date. The provisions set forth above that require the Company to make a Change of Control Offer following a Change of Control shall not be applicable regardless of whether or not any other provisions after a discharge of this Indenture are applicablepursuant to Section 8.01 or defeasance from the Company’s legal obligations with respect to the Notes pursuant to Section 8.03 or Section 8.04. Notwithstanding anything to the contrary in this Section 4.104.08, the Company shall not be required to make a Change of Control Offer upon a Change of Control if (i) a third party makes the Change of Control Offer in the manner, at the times and otherwise in compliance with the requirements set forth in this Section 4.10 4.08 and purchases all Notes validly tendered and not withdrawn under such Change of Control OfferOffer or (ii) notice of redemption has been given pursuant to Section 3.08 or Section 3.09, unless and until there is a default in payment of the applicable redemption price. Notwithstanding anything to the contrary contained herein, a Change of Control Offer may be made in advance of a Change of Control, conditioned upon the consummation of such Change of Control, if a definitive agreement is in place providing for the Change of Control at the time the Change of Control Offer is made. In the event Holders of not less than 90% of the aggregate principal amount of the outstanding Notes tender and do not withdraw such Notes in a Change of Control Offer and the Company purchases all the properly tendered and not withdrawn Notes held by such Holders, within 90 days of such purchase, the Company will have the right, upon not less than 10 days and not more than 60 days prior notice to Holders as provided under Section 3.03, to redeem all the Notes that remain outstanding following such purchase at a redemption price equal to the Change of Control Payment (it being understood that the date of purchase for purposes of such definition is the date of redemption) (subject to the right of Holders of record on the relevant record date to receive interest due on the Notes on the relevant interest payment date).
Appears in 1 contract
Samples: Indenture (O-I Glass, Inc. /DE/)
Offer to Repurchase Upon a Change of Control. If (a) Upon the occurrence of a Change of Control occursTriggering Event, unless the Company has previously or concurrently exercised its right to redeem all of the Notes under pursuant to Section 3.073.01, each Holder of Notes shall have the right to require the Company to repurchase all or any part (equal to $1,000 or an integral multiple thereof) of that such Holder’s Notes pursuant to at a change of control offer on the terms set forth in this Indenture (a “Change of Control Offer”). In the Change of Control Offer, the Company shall offer a payment purchase price in cash equal to 101101.0% of the aggregate principal amount of the Notes repurchased plus accrued and unpaid interest and Liquidated Damagesinterest, if any, thereon, to the date of purchase (subject to the right of Holders of record on the relevant Regular Record Date to receive interest due on an Interest Payment Date falling on or prior to the date of purchase).
(b) Prior to or within 30 days following any Change of Control Triggering Event, unless the Company has previously or concurrently exercised its right to redeem all of the Notes pursuant to Section 3.01, the Company shall deliver a notice (the “Change of Control Offer”) to each Holder or otherwise give notice in accordance with the applicable procedures of the Depositary, with a copy to the Trustee, stating:
(1) that a Change of Control Triggering Event has occurred or, if the Change of Control Offer is being made in advance of a Change of Control Triggering Event, that a Change of Control Triggering Event is expected to occur, and that such Holder has, or upon such occurrence will have, the right to require the Company to purchase such Holder’s Notes at a purchase price in cash equal to 101.0% of the principal amount of such Notes plus accrued and unpaid interest, if any, to the date of purchase (subject to the right of Holders of record on a Regular Record Date to receive interest on the relevant Interest Payment Date) (the “Change of Control Payment”). Within 30 days following any Change of Control, the Company shall mail a notice to each Holder at its registered address. The notice shall contain all instructions and materials necessary to enable such Holder to tender Notes pursuant to the Change of Control Offer. Any Change of Control Offer shall be made to all Holders. The notice, which shall govern the terms of the Change of Control Offer, shall state: (1) that the Change of Control Offer is being made pursuant to this Section 4.10; ;
(2) the Change of Control Payment and the repurchase date on (which Notes tendered and accepted for payment shall be purchased, which date shall be at least 30 no earlier than ten days and no nor later than 60 days from the date such notice is mailed delivered) (the “Change of Control Payment Date”); ;
(3) if such notice is delivered prior to the occurrence of a Change of Control or Change of Control Triggering Event, that any Note not tendered or accepted for payment shall continue to accrete or accrue interest; (4) that, unless the Company defaults in making such payment, any Note accepted for payment pursuant to the Change of Control Offer shall cease to accrete or accrue interest after is conditional on the occurrence of a Change of Control Payment DateTriggering Event; and
(54) that Holders electing to have a Note purchased pursuant to any Change of Control Offer shall be required to surrender the Note, with the form entitled “Option of Holder to Elect Purchase” on the reverse of the Note completed, or transfer by book-entry transfer, to the Company, a depositary, if appointed procedures determined by the Company, or the Paying Agent at the address specified in the notice at least three days before the Change of Control Payment Date; (6) that Holders shall be entitled to withdraw their election if the Company, the depositary or the Paying Agent, as the case may be, receives, not later than the Change of Control Payment Date, a notice setting forth the name of the Holder, the principal amount of the Note the Holder delivered for purchase and a statement that such Holder is withdrawing his election to have such Note purchased; (7) that Notes and portions of Notes purchased shall be in amounts of $1,000 or whole multiples of $1,000, except that if all of the Notes of a Holder are to be purchased, the entire outstanding amount of Notes held by such Holder, even if not a multiple of $1,000, shall be purchased; and (8) that Holders whose Notes were purchased only in part shall be issued new Notes equal in principal amount to the unpurchased portion of the Notes surrendered (or transferred by book-entry transfer), which unpurchased portion must be equal to $1,000 in principal amount or an integral multiple thereof. The Company shall comply consistent with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws and regulations are applicable in connection with the repurchase of the Notes as a result of a Change of Control. To the extent that the provisions of any securities laws or regulations conflict with the Change of Control provisions of this Indenture, the Company shall comply with the applicable securities laws and regulations and shall not be deemed that a Holder must follow in order to have breached its obligations under the Change of Control provisions of this Indenture by virtue of such conflictNotes repurchased. On the Change of Control Payment Date, the Company shall, to the extent lawful:
(1) accept for payment all Notes or portions thereof of Notes properly tendered and not withdrawn pursuant to the Change of Control Offer;
(2) deposit with the applicable Paying Agent an amount equal to the Change of Control Payment in respect of all Notes or portions thereof so tenderedof Notes properly tendered and not withdrawn; and
(3) deliver or cause to be delivered to the Trustee for cancellation the Notes so accepted together with an Officers’ Certificate stating the aggregate principal amount of Notes or portions thereof of Notes being purchased by the CompanyCompany in accordance with the terms of this covenant. The applicable Paying Agent shall promptly mail deliver to each Holder of Notes so properly tendered and not withdrawn the Change of Control Payment for such Notes, and the Trustee shall will promptly authenticate and mail (or cause to be transferred by book entry) to each Holder a new Note equal in principal amount to any unpurchased portion of the Notes surrendered, if any; provided , in accordance with Section 3.04(e).
(c) Prior to making a Change of Control Payment, and as a condition to such payment (1) the requisite holders of each issue of Indebtedness issued under an indenture or other agreement that each may be violated by such new Note payment shall be in a principal amount have consented to such Change of $1,000 or an integral multiple thereof. The Company shall publicly announce Control Payment being made and waived the results event of default, if any, caused by the Change of Control Offer on or as soon as practicable after (2) the Company will repay all outstanding Indebtedness issued under an indenture or other agreement that may be violated by a Change of Control Payment or the Company must offer to repay all such Indebtedness, and make payment to the holders of such Indebtedness that accept such offer and obtain waivers of any event of default arising under the relevant indenture or other agreement from the remaining holders of such Indebtedness. The Company covenants to effect such repayment or obtain such consent prior to making a Change of Control Payment, it being a Default of this Section 4.14 if the Company fails to comply with this Section 4.14(c).
(d) If the Change of Control Payment Date is on or after a Regular Record Date and on or before the related Interest Payment Date. The provisions set forth above that require the Company to make a Change of Control Offer following a Change of Control , any accrued and unpaid interest, if any, shall be applicable regardless of whether or not any other provisions of this Indenture are applicable. Notwithstanding anything paid on the relevant Interest Payment Date to the contrary Person in this Section 4.10, whose name a Note is registered at the close of business on such Regular Record Date.
(e) The Company shall not be required to make a Change of Control Offer upon a Change of Control Triggering Event if a third party makes the Change of Control Offer in the manner, at the times and otherwise in compliance with the requirements set forth in this Section 4.10 Indenture applicable to a Change of Control Offer made by the Company and purchases all Notes validly properly tendered and not withdrawn under such Change of Control Offer.
(f) The Company or a third party may, at its option, redeem the Notes upon not less than ten nor more than 60 days’ notice, given not more than 30 days following the consummation of the Change of Control Offer, at a redemption price of 101.0% of the aggregate principal amount of the Notes redeemed, plus accrued and unpaid interest, if any, to the applicable redemption date (subject to the right of holders of record on the relevant record date to receive interest due on an interest payment date falling on or prior to such redemption date), in connection with the consummation of a Change of Control if at least 90.0% of the Notes outstanding prior to the Change of Control Payment Date are purchased pursuant to a Change of Control Offer with respect to such Change of Control.
(g) Notwithstanding anything to the contrary herein, a Change of Control Offer may be made in advance of a Change of Control Triggering Event, conditional upon such Change of Control Triggering Event.
Appears in 1 contract
Samples: Indenture (Viasat Inc)
Offer to Repurchase Upon a Change of Control. If Upon the occurrence of a Change of Control occurs, unless the Company has exercised its right to redeem the Notes under Section 3.07Control, each Holder of Notes shall have the right to require the Company to repurchase all or any part (equal to $1,000 or an integral multiple thereof) of that such Holder’s 's Notes pursuant to a change of control the offer on described below (the terms set forth in this Indenture (a “"Change of Control Offer”). In the Change of Control Offer, the Company shall ") at an offer a payment price in cash equal to 101% of the aggregate principal amount of Notes repurchased thereof plus accrued and unpaid interest and Liquidated DamagesDamages thereon, if any, thereon, to the date of purchase (the “"Change of Control Payment”"). Within 30 10 days following any Change of Control, the Company shall mail a notice to each Holder at its registered address. The notice shall contain all instructions and materials necessary to enable such Holder to tender Notes pursuant to describing the transaction or transactions that constitute the Change of Control Offer. Any Change of Control Offer shall be made to all Holders. The notice, which shall govern the terms of the Change of Control Offer, shall state: and stating (1) that the Change of Control Offer is being made pursuant to this Section 4.104.15 and that all Notes tendered will be accepted for payment; (2) the Change of Control Payment purchase price and the date on purchase date, which Notes tendered and accepted for payment shall be purchased, which date shall be at least no earlier than 30 days and no later than 60 days from the date such notice is mailed (the “"Change of Control Payment Date”"); (3) that any Note not tendered or accepted for payment shall will continue to accrete or accrue interest; (4) that, unless the Company defaults in making such paymentthe payment of the Change of Control Payment, any Note all Notes accepted for payment pursuant to the Change of Control Offer shall cease to accrete or accrue interest after the Change of Control Payment Date; (5) that Holders electing to have a Note any Notes purchased pursuant to any a Change of Control Offer shall will be required to surrender the NoteNotes, with the form entitled “"Option of Holder to Elect Purchase” " on the reverse of the Note Notes completed, or transfer by book-entry transfer, to the Company, a depositary, if appointed by the Company, or the Paying Agent at the address specified in the notice at least three days before prior to the close of business on the third Business Day preceding the Change of Control Payment Date; (6) that Holders shall will be entitled to withdraw their election if the Company, the depositary or the Paying Agent, as the case may be, Agent receives, not later than the close of business on the second Business Day preceding the Change of Control Payment Date, a notice telegram, telex, facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Note the Holder Notes delivered for purchase purchase, and a statement that such Holder is withdrawing his election to have such Note the Notes purchased; and (7) that Notes and portions of Notes purchased shall be in amounts of $1,000 or whole multiples of $1,000, except that if all of the Notes of a Holder are to be purchased, the entire outstanding amount of Notes held by such Holder, even if not a multiple of $1,000, shall be purchased; and (8) that Holders whose Notes were are being purchased only in part shall will be issued new Notes equal in principal amount to the unpurchased portion of the Notes surrendered (or transferred by book-entry transfer)surrendered, which unpurchased portion must be equal to $1,000 in principal amount or an integral multiple thereof. The Company shall comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws and regulations are applicable in connection with the repurchase of the Notes as a result of a Change of Control. To the extent that the provisions of any securities laws or regulations conflict with the provisions of this Indenture relating to such Change of Control provisions of this IndentureOffer, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under the Change of Control provisions of described in this Indenture by virtue of such conflict. On the Change of Control Payment Date, the Company shall, to the extent lawful:
(1) accept for payment all Notes or portions thereof properly tendered pursuant to the Change of Control Offer;
(2) deposit with the Paying Agent an amount equal to the Change of Control Payment in respect of all Notes or portions thereof so tendered; and
(3) 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. The Paying Agent shall promptly mail to each Holder of Notes so tendered the Change of Control Payment for such Notes, and the Trustee shall promptly authenticate and mail (or cause to be transferred by book entry) to each Holder a new Note equal in principal amount to any unpurchased portion of the Notes surrendered, if any; provided that each such new Note shall be in a principal amount of $1,000 or an integral multiple thereof. The Company shall publicly announce the results of the Change of Control Offer on or as soon as practicable after the Change of Control Payment Date. The provisions set forth above that require the Company to make a Change of Control Offer following a Change of Control shall be applicable regardless of whether or not any other provisions of this Indenture are applicable. Notwithstanding anything to the contrary in this Section 4.10, 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 requirements set forth in this Section 4.10 and purchases all Notes validly tendered and not withdrawn under such Change of Control Offer.
Appears in 1 contract
Samples: Indenture (Aaipharma Inc)
Offer to Repurchase Upon a Change of Control. If a Change of Control occurs, unless the Company has exercised its right to redeem the Notes under Section 3.07, each Holder of Notes shall have the right to require the Company to repurchase all or any part (equal to $2,000 or integral multiples of $1,000 or an integral multiple in excess thereof) of that Holder’s Notes pursuant to a change of control offer on the terms set forth in this Indenture (a “Change of Control Offer”). In the Change of Control Offer, the Company shall offer a payment in cash equal to 101% of the aggregate principal amount of Notes repurchased plus accrued and unpaid interest and Liquidated DamagesAdditional Interest, if any, thereon, to the date of purchase (the “Change of Control Payment”). Within 30 days following any Change of Control, the Company shall mail a notice to each Holder at its registered address. The notice shall contain all instructions and materials necessary to enable such Holder to tender Notes pursuant to the Change of Control Offer. Any Change of Control Offer shall be made to all Holders. The notice, which shall govern the terms of the Change of Control Offer, shall state: (1) that the Change of Control Offer is being made pursuant to this Section 4.10; (2) the Change of Control Payment and the date on which Notes tendered and accepted for payment shall be purchased, which date shall be at least no earlier than 30 days and no later than 60 days from the date such notice is mailed (the “Change of Control Payment Date”); (3) that any Note not tendered or accepted for payment shall continue to accrete or accrue interest; (4) that, unless the Company defaults in making such payment, any Note accepted for payment pursuant to the Change of Control Offer shall cease to accrete or accrue interest after the Change of Control Payment Date; (5) that Holders electing to have a Note purchased pursuant to any Change of Control Offer shall be required to surrender the Note, with the form entitled “Option of Holder to Elect Purchase” on the reverse of the Note completed, or transfer by book-entry transfer, to the Company, a depositary, if appointed by the Company, or the Paying Agent at the address specified in the notice at least three days before the Change of Control Payment Date; (6) that Holders shall be entitled to withdraw their election if the Company, the depositary or the Paying Agent, as the case may be, receives, not later than the Change of Control Payment Date, a notice setting forth the name of the Holder, the principal amount of the Note the Holder delivered for purchase and a statement that such Holder is withdrawing his election to have such Note purchased; (7) that Notes and portions of Notes purchased shall be in amounts equal to $2,000 or integral multiples of $1,000 or whole multiples of $1,000in excess thereof, except that if all of the Notes of a Holder are to be purchased, the entire outstanding amount of Notes held by such Holder, even if not a multiple of $1,000, shall be purchased; and (8) that Holders whose Notes were purchased only in part shall be issued new Notes equal in principal amount to the unpurchased portion of the Notes surrendered (or transferred by book-entry transfer), which unpurchased portion must be equal to $1,000 in principal amount or an integral multiple thereof. The Company shall comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws and regulations are applicable in connection with the repurchase of the Notes as a result of a Change of Control. To the extent that the provisions of any securities laws or regulations conflict with the Change of Control provisions of this Indenture, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under the Change of Control provisions of this Indenture by virtue of such conflict. On the Change of Control Payment Date, the Company shall, to the extent lawful:
(1) accept for payment all Notes or portions thereof properly tendered pursuant to the Change of Control Offer;
(2) deposit with the Paying Agent an amount equal to the Change of Control Payment in respect of all Notes or portions thereof so tendered; and
(3) 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. The Paying Agent shall promptly mail to each Holder of Notes so tendered the Change of Control Payment for such Notes, and the Trustee shall promptly authenticate and mail (or cause to be transferred by book entry) to each Holder a new Note equal in principal amount to any unpurchased portion of the Notes surrendered, if any; provided that each such new Note shall be in a principal amount of equal to $1,000 2,000 or an integral multiple of $1,000 in excess thereof. The Company shall publicly announce the results of the Change of Control Offer on or as soon as practicable after the Change of Control Payment Date. The provisions set forth above that require the Company to make a Change of Control Offer following a Change of Control shall be applicable regardless of whether or not any other provisions of this Indenture are applicable. Notwithstanding anything to the contrary in this Section 4.10, 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 requirements set forth in this Section 4.10 and purchases all Notes validly tendered and not withdrawn under such Change of Control Offer.
Appears in 1 contract
Samples: Indenture (Owens Illinois Group Inc)
Offer to Repurchase Upon a Change of Control. If a Change of Control occurs, unless the Company has exercised its right to redeem all the Notes under Section 3.07, each Holder of Notes shall have the right to require the Company to repurchase all or any part (equal to $€50,000 or integral multiples of €1,000 or an integral multiple in excess thereof) of that Holder’s Notes pursuant to a change of control offer on the terms set forth in this Indenture (a “Change of Control Offer”). In the Change of Control Offer, the Company shall offer a payment in cash equal to 101% of the aggregate principal amount of Notes repurchased plus accrued and unpaid interest and Liquidated Damages, if any, thereon, to the date of purchase (the “Change of Control Payment”). Within 30 days following any Change of Control, the Company shall mail a notice to each Holder at its registered addressaddress describing the transaction or transactions that constitute a Change of Control and offering to repurchase Notes on the date specified in such notice. The notice shall contain all instructions and materials necessary to enable such Holder to tender Notes pursuant to the Change of Control Offer. Any Change of Control Offer shall be made to all Holders. The notice, which shall govern the terms of the Change of Control Offer, shall state: (1) that the Change of Control Offer is being made pursuant to this Section 4.10; (2) the Change of Control Payment and the date on which Notes tendered and accepted for payment shall be purchased, which date shall be at least no earlier than 30 days and no later than 60 days from the date such notice is mailed (the “Change of Control Payment Date”); (3) that any Note not tendered or accepted for payment shall continue to accrete or accrue interest; (4) that, unless the Company defaults in making such payment, any Note accepted for payment pursuant to the Change of Control Offer shall cease to accrete or accrue interest after the Change of Control Payment Date; (5) that Holders electing to have a Note purchased pursuant to any Change of Control Offer shall be required to surrender the Note, with the form entitled “Option of Holder to Elect Purchase” on the reverse of the Note completed, or transfer by book-entry transfer, to the Company, a depositary, if appointed by the Company, or the Paying Agent at the address specified in the notice at least three days before the Change of Control Payment Date; (6) that Holders shall be entitled to withdraw their election if the Company, the depositary or the Paying Agent, as the case may be, receives, not later than the Change of Control Payment Date, a notice setting forth the name of the Holder, the principal amount of the Note the Holder delivered for purchase and a statement that such Holder is withdrawing his election to have such Note purchased; (7) that Notes and portions of Notes purchased shall be in amounts of $€50,000 or an integral multiple of €1,000 or whole multiples of $1,000in excess thereof, except that if all of the Notes of a Holder are to be purchased, the entire outstanding amount of Notes held by such Holder, even if not a €50,000 or an integral multiple of $1,000€1,000 in excess thereof, shall be purchased; and (8) that Holders whose Notes were purchased only in part shall be issued new Notes equal in principal amount to the unpurchased portion of the Notes surrendered (or transferred by book-entry transfer), which unpurchased portion must be equal to $1,000 in principal amount €50,000 or an integral multiple of €1,000 in excess thereof. The Company shall comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws and regulations are applicable in connection with the repurchase of the Notes as a result of a Change of Control. To the extent that the provisions of any securities laws or regulations conflict with the Change of Control provisions of this Indenture, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under the Change of Control provisions of this Indenture by virtue of such conflict. On the Change of Control Payment Date, the Company shall, to the extent lawful:
(1) accept for payment all Notes or portions thereof properly tendered pursuant to the Change of Control Offer;
(2) deposit with the Paying Agent an amount equal to the Change of Control Payment in respect of all Notes or portions thereof so tendered; and
(3) 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. The Paying Agent shall promptly mail (or cause to be delivered) to each Holder of Notes so tendered the Change of Control Payment for such Notes, and the Trustee (or an authentication agent appointed by it) shall promptly authenticate and mail (or cause to be transferred by book entry) to each Holder a new Note equal in principal amount to any unpurchased portion of the Notes surrendered, if any; provided that each such new Note shall be in a principal amount of $1,000 €50,000 or an integral multiple multiples of €1,000, in excess thereof. The Company shall publicly announce the results of the Change of Control Offer on or as soon as practicable after the Change of Control Payment Date. The provisions set forth above that require the Company to make a Change of Control Offer following a Change of Control shall be applicable regardless of whether or not any other provisions of this Indenture are applicable. Notwithstanding anything to the contrary in this Section 4.10, 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 requirements set forth in this Section 4.10 and purchases all Notes validly tendered and not withdrawn under such Change of Control Offer. If at any time of such Change of Control, the Notes are listed on the official list of the Luxembourg Stock Exchange or any other securities exchange, to the extent required by the Luxembourg Stock Exchange or such other securities exchange, the Company shall notify the Luxembourg Stock Exchange or such other securities exchange that a Change of Control has occurred and any relevant details relating to such Change of Control.
Appears in 1 contract
Samples: Indenture (Owens-Illinois Group Inc)
Offer to Repurchase Upon a Change of Control. (a) If a Change of Control occurs, unless the Company has previously or concurrently exercised its right to redeem all of the Notes under pursuant to Section 3.07, each Holder of Notes shall will have the right to require the Company to repurchase all or any part (equal to $1,000 1.00 or an integral multiple of $1.00 in excess thereof) of that such Holder’s Notes pursuant to at a change of control offer on the terms set forth in this Indenture (a “Change of Control Offer”). In the Change of Control Offer, the Company shall offer a payment purchase price in cash equal to 101% of the aggregate principal amount of the Notes repurchased plus accrued and unpaid interest and Liquidated Damagesinterest, if any, thereon, to the date of purchase (subject to the right of Holders of record on the relevant record date to receive interest due on the relevant Interest Payment Date).
(b) Within 30 days following any Change of Control, unless the Company has previously or concurrently exercised its right to redeem all of the Notes pursuant to Section 3.07, the Company shall deliver a notice (the “Change of Control Offer”) to each Holder, with a copy to the Trustee, stating, among other things:
(1) that a Change of Control has occurred and that such Holder has the right to require the Company to purchase such Holder’s Notes at a purchase price in cash equal to 101% of the principal amount of such Notes plus accrued and unpaid interest, if any, to the date of purchase (subject to the right of Holders of record on a record date to receive interest on the relevant Interest Payment Date) (the “Change of Control Payment”). Within 30 days following any Change of Control, the Company shall mail a notice to each Holder at its registered address. The notice shall contain all instructions and materials necessary to enable such Holder to tender Notes pursuant to the Change of Control Offer. Any Change of Control Offer shall be made to all Holders. The notice, which shall govern the terms of the Change of Control Offer, shall state: (1) that the Change of Control Offer is being made pursuant to this Section 4.10; ;
(2) the Change of Control Payment and the repurchase date on (which Notes tendered and accepted for payment shall be purchased, which date shall be at least no earlier than 30 days and no nor later than 60 days from the date such notice is mailed mailed) (the “Change of Control Payment Date”); ;
(3) that any Note not properly tendered or accepted for payment shall will remain outstanding and continue to accrete or accrue interest; ;
(4) that, that unless the Company defaults in making such paymentthe payment of the Change of Control Payment, any Note all Notes accepted for payment pursuant to the Change of Control Offer shall will cease to accrete or accrue interest after on the Change of Control Payment Date; ;
(5) that Holders electing to have a Note any Notes in certificated form purchased pursuant to any a Change of Control Offer shall will be required to surrender the Notesuch Notes, with the form entitled “Option of Holder to Elect Purchase” on the reverse of the Note such Notes completed, or transfer by book-entry transfer, to the Company, a depositary, if appointed by paying agent specified in the Company, or the Paying Agent notice at the address specified in the notice at least three days before prior to the close of business on the third Business Day preceding the Change of Control Payment Date; ;
(6) that Holders shall will be entitled to withdraw their tendered Notes and their election if to require the CompanyCompany to purchase such Notes, provided, however that the depositary or the Paying Agent, as the case may be, paying agent receives, not later than the close of business on the third Business Day preceding the Change of Control Payment Date, a notice setting forth telegram, telex, facsimile transmission or letter complying with the name requirements of the Holder, the principal amount of the Note the Holder delivered for purchase and a statement that such Holder is withdrawing his election to have such Note purchased; Section 7.30(f) below;
(7) that Notes and portions of Notes purchased shall be in amounts of $1,000 or whole multiples of $1,000, except that if all the Company is repurchasing a portion of the Notes Note of a Holder are to be purchasedany Holder, the entire outstanding amount of Notes held by such Holder, even if not a multiple of $1,000, shall be purchased; and (8) that Holders whose Notes were purchased only in part shall Holder will be issued a new Notes Note equal in principal amount to the unpurchased portion of the Notes surrendered (or transferred by book-entry transfer)Note surrendered, which provided, however that the unpurchased portion of the Note must be equal to $1,000 in a minimum principal amount or of 1.00 and an integral multiple of $1.00 in excess thereof. The Company shall comply ; and
(8) other procedures determined by the Company, consistent with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws and regulations are applicable in connection with the repurchase of the Notes as a result of a Change of Control. To the extent that the provisions of any securities laws or regulations conflict with the Change of Control provisions of this Indenture, the Company shall comply with the applicable securities laws and regulations and shall not be deemed that a Holder must follow in order to have breached its obligations under the Change of Control provisions of this Indenture by virtue of such conflict. Notes repurchased.
(c) On the Change of Control Payment Date, the Company shallwill, to the extent lawful:
(1) accept for payment all Notes or portions thereof of Notes (in a minimum principal amount of $1.00 and integral multiples of $1.00 in excess thereof) properly tendered pursuant to the Change of Control OfferOffer and not properly withdrawn;
(2) deposit with the Paying Agent paying agent an amount in United States dollars equal to the Change of Control Payment in respect of all Notes or portions thereof so tenderedof Notes accepted for payment, provided, however, that the funds once deposited are to be uninvested until disbursed pursuant to this Section 7.30; and
(3) 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 of Notes being purchased by the Company. .
(d) The Paying Agent shall paying agent will promptly mail or deliver to each Holder of Notes so tendered accepted for payment the Change of Control Payment for such Notes, and the Trustee shall will promptly authenticate and mail (or cause to be transferred by book entry) to each Holder a new Note equal in principal amount to any unpurchased portion of the Notes surrendered, if any; provided provided, however that each such new Note shall will be in a minimum principal amount of $1,000 1.00 or an integral multiple of $1.00 in excess thereof. The Company shall publicly announce the results of .
(e) If the Change of Control Offer Payment Date is on or as soon as practicable after an interest record date and on or before the related Interest Payment Date, any accrued and unpaid interest, will be paid to the Person in whose name a Note is registered at the close of business on such record date, and no further interest will be payable to Holders who tender pursuant to the Change of Control Offer.
(f) A tender made in response to a Change of Control Payment Notice may be withdrawn if the Company receives, not later than the third Business Day prior to the Change of Control Payment Date. The provisions set forth above that require , a telegram, telex, electronic mail, facsimile transmission or letter, specifying, as applicable: (1) the name of the Holder; (2) the certificate number of the Note in respect of which such notice of withdrawal is being submitted; (3) the principal amount of the Note (which shall be $1.00 or whole multiples of $1.00 in excess thereof) delivered for purchase by the Company as to make which such notice of withdrawal is being submitted; (4) a statement that such Holder is withdrawing his election to have such principal amount of such Note purchased; and (5) the principal amount, if any, of such Note (which shall be $1.00 or whole multiples of $1.00 in excess thereof) that remains subject to the original Change of Control Payment Notice and that has been or will be delivered for purchase by the Company.
(g) Subject to applicable unclaimed property laws, the Trustee and the Paying Agent shall return to the Company, upon its request, any cash that remains unclaimed for two years after a Change of Control Offer Payment Date together with interest or dividends, if any, thereon (subject to Section 10.01(f)), held by them for the payment of the Change of Control Payment; and the Holder of such tendered and accepted Note shall thereafter look only to the Company for payment thereof, and all liability of the Trustee or such Paying Agent with respect to such cash, and all liability of the Company as trustee thereof, shall thereupon cease; provided, however, that the Trustee or such Paying Agent, before being required to make any such repayment, shall at the expense of the Company comply with the Commission Regulation 17AD-17 as it applies to lost bondholders; provided, further that (x) to the extent that the aggregate amount of cash deposited by the Company pursuant to clause (2) of paragraph (c) of this Section 7.30 exceeds the aggregate Change of Control Payment of the Notes or portions thereof to be purchased, then the Trustee shall hold such excess for the Company and (y) unless otherwise directed by the Company in writing, promptly after the Business Day following the Change of Control Payment Date the Trustee shall return any such excess to the Company together with interest, if any, thereon (subject to Section 10.01(f)).
(h) The Company shall comply, to the extent applicable, with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws or regulations in connection with the repurchase of Notes as a result of a Change of Control shall be applicable regardless of whether or not any other Control. To the extent that the provisions of this Indenture are applicable. Notwithstanding anything to the contrary in any securities laws or regulations conflict with this Section 4.107.30, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under this Section 7.30 by virtue of such conflict.
(i) Notwithstanding the foregoing, 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 requirements set forth in this Section 4.10 Indenture applicable to a Change of Control Offer made by the Company and purchases all Notes validly tendered and not withdrawn under such Change of Control Offer.
(j) In the event that Holders of not less than 90% of the aggregate principal amount of the outstanding Notes validly tender and do not withdraw such Notes in a Change of Control Offer and the Company, or any third party making a Change of Control Offer in lieu of the Company pursuant to Section 7.30(i) above, purchases all of the Notes validly tendered and not withdrawn by such Holders, the Company will have the right, upon not less than 30 nor more than 60 days’ prior written notice, given not more than 30 days following the purchase pursuant to the Change of Control Offer described under this Section 7.30, to redeem all of the Notes that remain outstanding following such purchase at a redemption price in cash equal to the applicable Change of Control Payment plus, to the extent not included in the Change of Control Payment, accrued and unpaid interest, if any, to the date of redemption.
(k) A Change of Control Offer may be made in advance of a Change of Control, and conditioned upon the occurrence of a Change of Control, if a definitive agreement is in place for the Change of Control at the time of making of the Change of Control Offer.
Appears in 1 contract
Samples: Indenture (Goodrich Petroleum Corp)
Offer to Repurchase Upon a Change of Control. (a) If a Change of Control occurs, unless the Company has exercised its right to redeem the Notes under Section 3.07, each Holder of Notes shall will have the right right, except as provided below in clause (e) of this Section 10.14, to require the Company to repurchase all or any part (equal to $1,000 2,000 or an integral multiple thereofof $1,000 in excess of $2,000) of that Holder’s Notes pursuant to a change of control an offer on the terms set forth in this Indenture (a “Change of Control Offer”)) on the terms set forth in this Section 10.14. In the Change of Control Offer, the Company shall will offer a payment in cash (the “Change of Control Payment”) equal to not less than 101% of the aggregate principal amount of Notes repurchased plus accrued and unpaid interest and Liquidated Damagesinterest, if any, thereon, on the Notes repurchased to the date of purchase (the “Change of Control PaymentPayment Date”), subject to the rights of Holders of Notes on the relevant Record Date to receive interest due on the relevant Interest Payment Date. Within 30 days following any Change of Control, except as provided below in clause (e) of this Section 10.14, the Company shall will mail a notice to each Holder at its registered address. The notice shall contain all instructions and materials necessary to enable such Holder to tender Notes pursuant to describing the transaction or transactions that constitute the Change of Control Offer. Any Change of Control Offer shall be made to all Holders. The notice, which shall govern the terms of the Change of Control Offer, shall state: and stating:
(1i) that the Change of Control Offer is being made pursuant to this Section 4.10; 10.14 and that all Notes tendered will be accepted for payment;
(2ii) the purchase price and the Change of Control Payment and the date on Date, which Notes tendered and accepted for payment shall be purchased, which date shall be at least no earlier than 30 days and no later than 60 days from the date such notice is mailed mailed;
(the “Change of Control Payment Date”); (3iii) that any Note not tendered or accepted for payment shall will continue to accrete or accrue interest; ;
(4iv) that, unless the Company defaults in making such paymentthe payment of the Change of Control Payment, any Note all Notes accepted for payment pursuant to the Change of Control Offer shall will cease to accrete or accrue interest after the Change of Control Payment Date; ;
(5v) that Holders electing to have a Note any Notes purchased pursuant to any a Change of Control Offer shall will be required to surrender the NoteNotes, with the form entitled “Option of Holder to Elect Purchase” on attached to the reverse of the Note Notes completed, or transfer by book-entry transfer, to the Company, a depositary, if appointed by the Company, or the Paying Agent at the address specified in the notice at least three days before prior to the close of business on the third Business Day preceding the Change of Control Payment Date; ;
(6vi) that Holders shall will be entitled to withdraw their election if the Company, the depositary or the Paying Agent, as the case may be, Agent receives, not later than the close of business on the second Business Day preceding the Change of Control Payment Date, a notice telegram, telex, facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Note the Holder Notes delivered for purchase purchase, and a statement that such Holder is withdrawing his election to have such Note the Notes purchased; and
(7vii) that Notes and portions of Notes purchased shall be in amounts of $1,000 or whole multiples of $1,000, except that if all of the Notes of a Holder are to be purchased, the entire outstanding amount of Notes held by such Holder, even if not a multiple of $1,000, shall be purchased; and (8) that Holders whose Notes were are being purchased only in part shall will be issued new Notes equal in principal amount to the unpurchased portion of the Notes surrendered (or transferred by book-entry transfer), which unpurchased portion must be equal to $1,000 2,000 in principal amount or an integral multiple thereofof $1,000 in excess of $2,000. The Company shall will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such those laws and regulations are applicable in connection with the repurchase of the Notes as a result of a Change of Control. To the extent that the provisions of any securities laws or regulations conflict with the Change of Control provisions of this Indenture, the Company shall will comply with the applicable securities laws and regulations and shall will not be deemed to have breached its obligations under the Change of Control provisions of this Indenture by virtue of such conflict. compliance.
(b) On the Change of Control Payment Date, the Company shallwill, to the extent lawful:
(1i) accept for payment all Notes or portions thereof of Notes properly tendered pursuant to the Change of Control Offer;
(2ii) deposit with the Paying Agent an amount equal to the Change of Control Payment in respect of all Notes or portions thereof so of Notes properly tendered; and
(3iii) deliver or cause to be delivered to the Trustee the Notes so properly accepted together with an Officers’ Certificate stating the aggregate principal amount of Notes or portions thereof of Notes being purchased by the Company. .
(c) The Paying Agent shall will promptly mail or wire transfer to each Holder of Notes so properly tendered the Change of Control Payment for such NotesNotes (or, if all the Notes are then in global form, make such payment through the facilities of the Depositary), and the Trustee shall will promptly authenticate and mail (or cause to be transferred by book entry) to each Holder a new Note equal in principal amount to any unpurchased portion of the Notes surrendered, if any; provided that each such new Note shall will be in a principal amount of $1,000 2,000 or an integral multiple thereofof $1,000 in excess of $2,000. Any Note so accepted for payment will cease to accrue interest on and after the Change of Control Payment Date unless the Company defaults in making the Change of Control Payment.
(d) The Company shall will publicly announce the results of the Change of Control Offer on or as soon as practicable after the Change of Control Payment Date. The provisions set forth above that require the Company to make a Change of Control Offer following a Change of Control shall be applicable regardless of whether or not any other provisions of this Indenture are applicable. .
(e) Notwithstanding anything to the contrary in this Section 4.1010.14, the Company shall will not be required to make a Change of Control Offer upon a Change of Control if if:
(i) a third party makes the Change of Control Offer in the manner, at the price, at the times and otherwise in compliance with the requirements set forth in this Section 4.10 Indenture applicable to a Change of Control Offer made by the Company and purchases all Notes validly properly tendered and not withdrawn under the Change of Control Offer;
(ii) notice of redemption of all Outstanding Notes has been given pursuant to Section 11.4 of this Indenture; or
(iii) in connection with or in contemplation of any Change of Control, the Company has made an offer to purchase (an “Alternate Offer”) any and all Notes properly tendered and not validly withdrawn at a cash price equal to or higher than the Change of Control Payment and has purchased all Notes properly tendered in accordance with the terms of such Alternate Offer.
(f) A Change of Control Offer may be made in advance of a Change of Control, and conditioned upon the occurrence of such Change of Control, if a definitive agreement is in place for the Change of Control at the time of making the Change of Control Offer. Notes repurchased by the Company pursuant to a Change of Control Offer or Alternate Offer will have the status of Notes issued but not Outstanding or will be retired and cancelled, at the Company’s option. Notes purchased by a third party pursuant to clause (e) of this Section 10.14 will have the status of Notes issued and Outstanding.
(g) In the event that Holders of at least 90% of the aggregate principal amount of the Outstanding Notes accept a Change of Control Offer or Alternate Offer and the Company (or any third party making such Change of Control Offer, in lieu of the Company, as described in clause (e) of this Section 10.14) purchases all of the Notes validly tendered by such Holders, the Company will have the right, upon not less than 30 nor more than 60 days’ prior notice, given not more than 30 days following the purchase pursuant to the Change of Control Offer or Alternate Offer, as applicable, to redeem all, but not less than all, of the Notes that remain Outstanding at a Redemption Price equal to the Change of Control Payment plus, to the extent not included in the Change of Control Payment, accrued and unpaid interest, if any, on the Notes that remain Outstanding, to the date of redemption (subject to the right of Holders on the relevant record date to receive interest due on the relevant Interest Payment Date).
Appears in 1 contract
Samples: Fourth Supplemental Indenture (Oasis Petroleum Inc.)
Offer to Repurchase Upon a Change of Control. (a) If a Change of Control occurs, unless Triggering Event occurs with respect to the Company has exercised its right to redeem the Notes under Section 3.07Notes, each Holder of Notes shall will have the right to require that the Company to repurchase purchase all or any part (equal to in minimum amounts of $2,000 or whole multiples of $1,000 or an integral multiple in excess thereof) of that such Holder’s Notes pursuant to a change of control the offer on described below (the terms set forth in this Indenture (a “Change of Control Offer”). In the Change of Control Offer, the Company shall will offer to purchase all of the Notes, at a payment purchase price (the “Change of Control Purchase Price”) in cash in an amount equal to 101% of the aggregate principal amount of Notes repurchased such Notes, plus accrued and unpaid interest and Liquidated Damagesinterest, if any, thereonto, to but excluding, the date of purchase (the “Change of Control PaymentPurchase Date”). , subject to the rights of Holders of record on relevant record dates to receive interest due on an Interest Payment Date.
(b) Within 30 days following after the date upon which any Change of ControlControl Triggering Event occurred or, at the Company’s option, prior to such Change of Control but after it is publicly announced, the Company shall mail a must notify the Trustee in writing and give written notice to each Holder at its registered address. The notice shall contain all instructions and materials necessary to enable such Holder to tender Notes pursuant to the Change of Control Offer. Any Change of Control Offer shall be made to all Holders. The notice, which shall govern the terms of the Change of Control OfferTriggering Event (the “Change of Control Purchase Notice”) to each Holder of Notes, shall by first-class mail, postage prepaid, at his address appearing in the security register. The Change of Control Purchase Notice must state: , among other things:
(1) that the a Change of Control Offer is being made pursuant to this Section 4.10; Triggering Event has occurred or will occur and the date of such event;
(2) the circumstances and relevant facts regarding such Change of Control Triggering Event;
(3) the Change of Control Payment Purchase Price and the date on Change of Control Purchase Date, which Notes tendered and accepted for payment shall be purchased, which date shall be at least fixed by the Company on a Business Day no earlier than 30 days and no nor later than 60 days from the date such the notice is mailed (mailed, or such later date as is necessary to comply with requirements under the “Exchange Act; provided that the Change of Control Payment Date”); Purchase Date may not occur prior to the Change of Control Triggering Event;
(34) that any Note not tendered or accepted for payment shall will continue to accrete or accrue interest; ;
(45) that, unless the Company defaults in making such paymentthe payment of the Change of Control Purchase Price, any Note Notes accepted for payment pursuant to the Change of Control Offer shall cease to accrete or accrue interest on and after the Change of Control Payment Purchase Date; and
(56) other procedures that a Holder of Notes must follow to accept a Change of Control Offer or to withdraw acceptance of the Change of Control Offer.
(c) Upon receipt by the Company of the proper tender of Notes, the Holder of the Note in respect of which such proper tender was made shall (unless the tender of such Note is properly withdrawn at least one Business Day prior to the Change of Control Purchase Date) thereafter be entitled to receive solely the Change of Control Purchase Price with respect to such Notes. Upon surrender of any such Note for purchase in accordance with the foregoing provisions, such Note shall be paid by the Company at the Change of Control Purchase Price; provided, however, that installments of interest whose Stated Maturity is on or prior to the Change of Control Purchase Date shall be payable to the Holders of such Notes, registered as such on the relevant record dates according to the terms and the provisions of Section 2.03. If any Note tendered for purchase in accordance with the provisions of this Section 4.11 shall not be so paid upon surrender thereof, the principal thereof (and premium, if any, thereon) shall, until paid, bear interest from the Change of Control Purchase Date at the rate borne by such Note. Holders electing to have a Note Notes purchased pursuant to any Change of Control Offer shall will be required to surrender the Note, with the form entitled “Option of Holder such Notes to Elect Purchase” on the reverse of the Note completed, or transfer by book-entry transfer, to the Company, a depositary, if appointed by the Company, or the Paying Agent at the address specified in the notice Change of Control Purchase Notice at least three days before one Business Day prior to the Change of Control Payment Purchase Date; (6) . Any Note that Holders is to be purchased only in part shall be entitled surrendered to withdraw their election a Paying Agent at the office of such Paying Agent (with, if the Company, the depositary Registrar or the Paying AgentTrustee so require, due endorsement by, or a written instrument of transfer in form satisfactory to the Company and the Registrar or the Trustee, as the case may be, receivesduly executed by, the Holder thereof or such Holder’s 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, one or more new Notes of any authorized denomination as requested by such Holder in an aggregate principal amount equal to, and in exchange for, the portion of the principal amount of the Note so surrendered that is not purchased.
(d) The Company shall (i) not later than the Change of Control Payment Purchase Date, accept for payment Notes or portions thereof tendered pursuant to the Change of Control Offer, (ii) not later than 1:00 p.m. (New York time) on the Business Day following the Change of Control Purchase Date, deposit with the Trustee or with a Paying Agent an amount of money in same day funds sufficient to pay the aggregate Change of Control Purchase Price of all the Notes or portions thereof which have been so accepted for payment and (iii) not later than 1:00 p.m. (New York time) on the Business Day following the Change of Control Purchase Date, deliver to the Paying Agent an Officers’ Certificate stating the Notes or portions thereof accepted for payment by the Company. The Paying Agent shall promptly mail or deliver to Holders of Notes so accepted payment in an amount equal to the Change of Control Purchase Price of the Notes purchased from each such Holder, and the Company shall execute and the Trustee shall promptly authenticate and mail or deliver to such Holders a new Note equal in principal amount to any unpurchased portion of the Note surrendered. Any Notes not so accepted shall be promptly mailed or delivered by the Paying Agent at the Company’s expense to the Holder thereof. The Company will publicly announce the results of the Change of Control Offer on the Change of Control Purchase Date. For purposes of this Section 4.11, the Company shall choose a Paying Agent which shall not be the Company.
(e) A tender made in response to a Change of Control Purchase Notice may be withdrawn if the Company receives, not later than one Business Day prior to the Change of Control Purchase Date, a notice setting forth telegram, telex, facsimile transmission or letter, specifying, as applicable:
(1) the name of the Holder, ;
(2) the certificate number of the Note in respect of which such notice of withdrawal is being submitted;
(3) the principal amount of the Note the Holder (which shall be in minimum denominations of $2,000 or whole multiples of $1,000 in excess thereof) delivered for purchase and by the Company as to which such notice of withdrawal is being submitted;
(4) a statement that such Holder is withdrawing his election to have such principal amount of such Note purchased; and
(75) that Notes and portions the principal amount, if any, of Notes purchased such Note (which shall be in amounts minimum denominations of $1,000 2,000 or whole multiples of $1,0001,000 in excess thereof) that remains subject to the original Change of Control Purchase Notice and that has been or will be delivered for purchase by the Company.
(f) The Trustee and the Paying Agent shall return to the Company, except upon its request, any cash that remains unclaimed for two years after a Change of Control Purchase Date together with interest or dividends, if any, thereon (subject to Section 7.01(f)), held by them for the payment of the Change of Control Purchase Price; and the Holder of such tendered and accepted Note shall thereafter look only to the Company for payment thereof, and all liability of the Trustee or such Paying Agent with respect to such cash, and all liability of the Company as trustee thereof, shall thereupon cease; provided, however, that the Company shall cause to be published once in The New York Times and The Wall Street Journal (national edition) or send to each Holder entitled to such money notice that such money remains unclaimed and that, after a date specified therein, which shall not be less than 30 days from the date of such notification or publication, any unclaimed balance of such money then remaining shall be repaid to the Company; provided, further however, that (x) to the extent that the aggregate amount of cash deposited by the Company pursuant to clause (ii) of paragraph (d) of this Section 4.11 exceeds the aggregate Change of Control Purchase Price of the Notes of a Holder are or portions thereof to be purchased, then the entire outstanding amount of Notes held by Trustee shall hold such Holder, even if not a multiple of $1,000, shall be purchased; excess for the Company and (8) that Holders whose Notes were purchased only y) unless otherwise directed by the Company in part writing, promptly after the Business Day following the Change of Control Purchase Date the Trustee shall be issued new Notes equal in principal amount return any such excess to the unpurchased portion of the Notes surrendered Company together with interest, if any, thereon (or transferred by book-entry transfersubject to Section 7.01(f), which unpurchased portion must be equal to $1,000 in principal amount or an integral multiple thereof. ).
(g) The Company shall comply with the requirements of applicable tender offer rules, including Rule 14e-1 under the Exchange Act Act, and any other applicable securities laws and or regulations thereunder to the extent such laws and regulations are applicable in connection with the repurchase of the Notes as a result of a Change of ControlControl Offer. To the extent that the provisions of any securities laws or regulations conflict with the Change of Control provisions of this IndentureSection 4.11, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under the Change of Control provisions of this Indenture Section 4.11 by virtue of such conflict. On the Change of Control Payment Date, the Company shall, to the extent lawful:.
(1h) accept for payment all Notes or portions thereof properly tendered pursuant to Notwithstanding the Change of Control Offer;
(2) deposit with the Paying Agent an amount equal to the Change of Control Payment in respect of all Notes or portions thereof so tendered; and
(3) 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. The Paying Agent shall promptly mail to each Holder of Notes so tendered the Change of Control Payment for such Notes, and the Trustee shall promptly authenticate and mail (or cause to be transferred by book entry) to each Holder a new Note equal in principal amount to any unpurchased portion of the Notes surrendered, if any; provided that each such new Note shall be in a principal amount of $1,000 or an integral multiple thereof. The Company shall publicly announce the results of the Change of Control Offer on or as soon as practicable after the Change of Control Payment Date. The provisions set forth above that require the Company to make a Change of Control Offer following a Change of Control shall be applicable regardless of whether or not any other provisions of this Indenture are applicable. Notwithstanding anything to the contrary in this Section 4.10foregoing, the Company shall not be required to make a Change of Control Offer (i) upon a Change of Control Triggering Event if a third party makes the Change of Control Offer in the manner, at the times and otherwise in compliance with the requirements set forth in this Section 4.10 Indenture applicable to a Change of Control Offer made by the Company and purchases all Notes validly tendered and not withdrawn under such Change of Control OfferOffer or (ii) if notice of redemption for 100% of the aggregate principal amount of the outstanding Notes in respect of which a Change of Control Triggering Event occurred has been given pursuant to Section 3.07, unless and until there is a default in payment of the applicable redemption price.
(i) In the event that Holders of not less than 90% of the aggregate principal amount of the outstanding Notes accept a Change of Control Offer and the Company purchases all of the Notes held by such Holders, the Company will have the right, upon not less than 10 nor more than 60 days’ prior notice, given not more than 30 days following the purchase pursuant to the Change of Control Offer described under this Section 4.11, to redeem all of the Notes that remain outstanding following such purchase at a redemption price equal to 101% of the aggregate principal amount of Notes redeemed plus accrued and unpaid interest, if any, thereon to, but excluding, the date of redemption, subject to the right of the Holders of record on relevant record dates to receive interest due on an Interest Payment Date.
Appears in 1 contract
Offer to Repurchase Upon a Change of Control. (a) If a Change of Control occurs, unless the Company has exercised its right to redeem the Notes under Section 3.07, each Holder of Notes shall will have the right to require the Company to repurchase all or any part (equal to $1,000 2,000 or an integral multiple thereofof $1,000 in excess of $2,000) of that Holder’s Notes pursuant to a change of control an offer on the terms set forth in this Indenture (a “Change of Control Offer”)) on the terms set forth in this Section. In the Change of Control Offer, the Company shall will offer a payment in cash (the “Change of Control Payment”) equal to not less than 101% of the aggregate principal amount of Notes repurchased plus accrued and unpaid interest and Liquidated Damagesinterest, if any, thereon, on the Notes repurchased to the date of purchase (the “Change of Control PaymentPayment Date”), subject to the rights of Holders of Notes on the relevant Record Date to receive interest due on the relevant Interest Payment Date. Within 30 days following any Change of Control, or, at the Company’s option, prior to such Change of Control but after it is publicly announced, the Company shall will mail a notice to each Holder at its registered address. The notice shall contain all instructions and materials necessary to enable such Holder to tender Notes pursuant to describing the transaction or transactions that constitute the Change of Control Offer. Any Change of Control Offer shall be made to all Holders. The notice, which shall govern the terms of the Change of Control Offer, shall state: and stating:
(1) that the Change of Control Offer is being made pursuant to this Section 4.10; 4.11 and that all Notes tendered will be accepted for payment;
(2) the purchase price and the Change of Control Payment and the date on Date, which Notes tendered and accepted for payment shall be purchased, which date shall be at least no earlier than 30 days and no later than 60 days from the date such notice is mailed (or such later date as is necessary to comply with requirements under the “Change of Control Payment Date”); Exchange Act;
(3) that any Note not tendered or accepted for payment shall will continue to accrete or accrue interest; ;
(4) that, unless the Company defaults in making such paymentthe payment of the Change of Control Payment, any Note all Notes accepted for payment pursuant to the Change of Control Offer shall will cease to accrete or accrue interest after the Change of Control Payment Date; ;
(5) that Holders electing to have a Note any Notes purchased pursuant to any a Change of Control Offer shall will be required to surrender the NoteNotes, with the form entitled “Option of Holder to Elect Purchase” on attached to the reverse of the Note Notes completed, or transfer the Notes by book-entry transfer, to the Company, a depositary, if appointed by the Company, or the Paying Agent at the address specified in the notice at least three days before prior to the close of business on the third Business Day preceding the Change of Control Payment Date; ;
(6) that Holders shall will be entitled to withdraw their election if the Company, the depositary or the Paying Agent, as the case may be, Agent receives, not later than the close of business on the second Business Day preceding the Change of Control Payment Date, a notice telegram, telex, facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Note the Holder Notes delivered for purchase purchase, and a statement that such Holder is withdrawing his election to have such Note all or a portion of the Notes purchased; and
(7) that Notes and portions of Notes purchased shall be in amounts of $1,000 or whole multiples of $1,000, except that if all of the Notes of a Holder are to be purchased, the entire outstanding amount of Notes held by such Holder, even if not a multiple of $1,000, shall be purchased; and (8) that Holders whose Notes were are being purchased only in part shall will be issued new Notes equal in principal amount to the unpurchased portion of the Notes surrendered (or transferred by book-entry transfer), which unpurchased portion must be equal to $1,000 2,000 in principal amount or an integral multiple thereof. of $1,000 in excess of $2,000.
(b) The Company shall will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such those laws and regulations are applicable in connection with the repurchase of the Notes as a result of a Change of Control. To the extent that the provisions of any securities laws or regulations conflict with the Change of Control provisions of this the Indenture, the Company shall will comply with the applicable securities laws and regulations and shall will not be deemed to have breached its obligations under the Change of Control provisions of this Indenture Section by virtue of such conflict. compliance.
(c) On the Change of Control Payment Date, the Company shallwill, to the extent lawful:
(1) accept for payment all Notes or portions thereof of Notes properly tendered pursuant to the Change of Control Offer;
(2) deposit with the Paying Agent an amount equal to the Change of Control Payment in respect of all Notes or portions thereof so of Notes properly tendered; and
(3) deliver or cause to be delivered to the Trustee the Notes so properly accepted together with an Officers’ Certificate stating stating, the aggregate principal amount of Notes or portions thereof of Notes being purchased by the Company. .
(d) The Paying Agent shall will promptly mail or wire transfer to each Holder of Notes so properly tendered the Change of Control Payment for such NotesNotes (or, if all the Notes are then in global form, make such payment through the facilities of the Depositary), and the Trustee shall will promptly authenticate and mail (or cause to be transferred by book entry) to each Holder a new Note equal in principal amount to any unpurchased portion of the Notes surrendered, if any; provided that each such new Note shall will be in a principal amount of $1,000 2,000 or an integral multiple thereofof $1,000 in excess of $2,000. Any Note so accepted for payment will cease to accrue interest on and after the Change of Control Payment Date unless the Company defaults in making the Change of Control Payment.
(e) The Company shall will publicly announce the results of the Change of Control Offer on or as soon as practicable after the Change of Control Payment Date.
(f) Notwithstanding anything to the contrary in this Section, the Company will not be required to make a Change of Control Offer upon a Change of Control if (i) a third party makes the Change of Control Offer in the manner, at the price, at the times and otherwise in compliance with the requirements set forth in the Indenture applicable to a Change of Control Offer made by the Company and purchases all Notes properly tendered and not withdrawn under the Change of Control Offer, or (ii) the Company has given notice of redemption pursuant to Section 3.01 of the Indenture unless and until there is a Default in payment of the applicable redemption price.
(g) A Change of Control Offer may be made in advance of a Change of Control, and conditioned upon the occurrence of such Change of Control, if a definitive agreement is in place for the Change of Control at the time of making the Change of Control Offer. Notes repurchased by the Company pursuant to a Change of Control Offer will have the status of Notes issued but not outstanding or will be retired and cancelled, at the Company’s option. Notes purchased by a third party pursuant to clause (f) of this Section will have the status of Notes issued and outstanding.
(h) In the event that Holders of at least 90% of the aggregate principal amount of the outstanding Notes accept a Change of Control Offer and the Company (or any third party making such Change of Control Offer, in lieu of the Company, as described in paragraph (f) of this Section) purchases all of the Notes held by such Holders, the Company will have the right, upon not less than 30 nor more than 60 days’ prior notice, given not more than 30 days following a Change of Control Payment Date, to redeem all, but not less than all, of the Notes that remain outstanding at a redemption price equal to the Change of Control Payment plus, to the extent not included in the Change of Control Payment, accrued and unpaid interest, if any, on the Notes that remain outstanding, to the date of redemption (subject to the right of Holders on the relevant record date to receive interest due on the relevant Interest Payment Date).
(i) The provisions set forth above of this Section that require the Company to make a Change of Control Offer following a Change of Control shall will be applicable regardless of whether or not any other provisions of this the Indenture are applicable. Notwithstanding anything to the contrary in this Section 4.10, 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 requirements set forth in this Section 4.10 and purchases all Notes validly tendered and not withdrawn under such Change of Control Offer.
Appears in 1 contract
Samples: Indenture (PDC Energy, Inc.)
Offer to Repurchase Upon a Change of Control. If (a) Upon the occurrence of a Change of Control occurs, unless the Company has exercised its right to redeem the Notes under Section 3.07Control, each Holder of Notes shall have the right to require the Company to repurchase all or any part (equal to $1,000 or an integral multiple thereof) of that Holder’s Notes 's Securities pursuant to a change the Change of control Control offer on the terms set forth in this Indenture (a “Change of Control Offer”). In the Change of Control Offer, the Company shall "CHANGE OF CONTROL OFFER") at an offer a payment price in cash equal to 101% of the aggregate principal amount of Notes Securities repurchased plus accrued and unpaid interest and Liquidated Damagesinterest, if any, thereon, on the Securities repurchased to the date of purchase (the “Change of Control Payment”"CHANGE OF CONTROL PAYMENT"). Within 30 days following any Change of Control, the Company shall mail a notice to each Holder at its registered address. The notice shall contain all instructions and materials necessary to enable such Holder to tender Notes pursuant to stating:
(1) the transaction or transactions that constitute the Change of Control Offer. Any Change of Control Offer shall be made to all Holders. The notice, which shall govern the terms of the Change of Control Offer, shall state: Control;
(12) that the Change of Control Offer is being made pursuant to this Section 4.10; 3.17 and that all Securities tendered shall be accepted for payment;
(23) the Change of Control Payment purchase price and the date on which Notes tendered and accepted for payment shall be purchasedpurchase date, which date shall be at least no earlier than 30 days and no later than 60 days from the date such the notice is mailed (the “Change of Control Payment Date”"CHANGE OF CONTROL PAYMENT DATE"); ;
(34) that any Note Security not tendered or accepted for payment properly withdrawn shall continue to accrete or accrue interest; ;
(45) that, unless the Company defaults in making such paymentthe payment of the Change of Control Payment, any Note all Securities accepted for payment pursuant to the Change of Control Offer shall cease to accrete or accrue interest after the Change of Control Payment Date; ;
(56) that Holders electing to have a Note any Securities purchased pursuant to any a Change of Control Offer shall be required to surrender the NoteSecurities, with the form entitled “"Option of Holder to Elect Purchase” " on the reverse of the Note Securities completed, or transfer by book-entry transfer, -71- to the Company, a depositary, if appointed by the Company, or the Paying Agent at the address addresses specified in the notice at least three days before prior to the close of business on the third Business Day preceding the Change of Control Payment Date; ;
(67) that Holders shall be entitled to withdraw their election if the Company, the depositary or the applicable Paying Agent, as the case may be, Agent receives, not later than the close of business on the second Business Day preceding the Change of Control Payment Date, a notice telegram, telex, facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Note the Holder Securities delivered for purchase purchase, and a statement that such Holder is withdrawing his election to have such Note the Securities purchased; (7) that Notes and portions of Notes purchased shall be in amounts of $1,000 or whole multiples of $1,000, except that if all of the Notes of a Holder are to be purchased, the entire outstanding amount of Notes held by such Holder, even if not a multiple of $1,000, shall be purchased; and and
(8) that Holders whose Notes were Securities are being purchased only in part shall be issued new Notes Securities equal in principal amount to the unpurchased portion of the Notes surrendered (or transferred by book-entry transfer)Securities surrendered, which unpurchased portion must be equal to $1,000 in principal amount or an integral multiple thereof. The Company shall comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws and regulations are applicable in connection with the repurchase of the Notes as a result of a Change of Control. To the extent that the provisions of any securities laws or regulations conflict with the Change of Control provisions of this Indenture, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under the Change of Control provisions of this Indenture by virtue of such conflict. .
(b) On the Change of Control Payment Date, the Company shall, to the extent lawful:
(1) accept for payment all Notes Securities or portions thereof of Securities validly tendered and not properly tendered withdrawn pursuant to the Change of Control Offer;
(2) deposit with the Paying Agent Agents, an amount equal to the Change of Control Payment in respect of all Notes Securities or portions thereof so tenderedof Securities properly tendered and not properly withdrawn pursuant to the Change of Control Offer; and
(3) deliver or cause to be delivered to the Trustee the Notes Securities so accepted together with an Officers’ Officer's Certificate stating the aggregate principal amount of Notes Securities or portions thereof of Securities being purchased by the Company. .
(c) The Paying Agent Agents shall promptly mail to each Holder of Notes so Securities validly tendered and not properly withdrawn the Change of Control Payment for such NotesSecurities, and the Trustee shall promptly authenticate and mail (or cause to be transferred by book entry) to each Holder a new Note Security equal in principal amount to any unpurchased portion of the Notes Securities surrendered, if any; provided PROVIDED that each such new Note shall Security will be in a principal amount of $1,000 or an integral multiple thereof. .
(d) The Company shall publicly announce the results of the Change of Control Offer on or as soon as practicable after the Change of Control Payment Date. .
(e) The provisions set forth above that require the Company to make a Change of Control Offer following a Change of Control shall be applicable regardless of whether or not any other provisions of this Indenture are applicable. Notwithstanding anything to the contrary in this Section 4.10, 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 requirements set forth in this Section 4.10 Indenture applicable to a Change of Control Offer made by the Company and purchases all Notes Securities validly tendered and not withdrawn properly under such Change of Control Offer.
(f) The Company shall comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent those laws and regulations are applicable in connection with the repurchase of the Securities as a result of a Change of Control. To the extent that the provisions of any securities laws or regulations -72- conflict with the Change of Control provisions of this Indenture, the Company shall comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under this Section 3.17 by virtue of such conflict.
Appears in 1 contract
Samples: Indenture (Cummins Inc)
Offer to Repurchase Upon a Change of Control. (a) If a Change of Control occurs, unless the Company has exercised its right to redeem the Notes under Section 3.07, each Holder of Notes shall have the right to require the Company to repurchase all or any part (equal to $1,000 2,000 or an integral multiple multiples of $1,000 in excess thereof) of that Holder’s Notes Securities pursuant to a change the Change of control Control offer on the terms set forth in this Indenture (a “Change of Control Offer”). In the Change of Control Offer, the Company shall offer a payment Change of Control Payment in cash equal to 101% of the aggregate principal amount of Notes Securities repurchased plus accrued and unpaid interest and Liquidated Damages, if any, thereon, on the Securities repurchased to the date of purchase (the “Change of Control Payment”)purchase. Within 30 days following any Change of Control, the Company shall mail deliver a notice to each Holder at its registered address. The notice shall contain all instructions and materials necessary to enable such Holder to tender Notes pursuant to stating:
(i) the transaction or transactions that constitute the Change of Control Offer. Any Change of Control Offer shall be made to all Holders. The notice, which shall govern the terms of the Change of Control Offer, shall state: Control;
(1ii) that the Change of Control Offer is being made pursuant to this Section 4.10; 5.9 and that all Securities tendered shall be accepted for payment;
(2iii) the Change of Control Payment purchase price and the date on which Notes tendered and accepted for payment shall be purchasedpurchase date, which date shall be at least 30 no earlier than 10 days and no later than 60 days from the date such the notice is mailed delivered (the “Change of Control Payment Date”) (except in the case of a conditional Change of Control Offer made in advance of a Change of Control as described in Section 5.9); ;
(3iv) that any Note Security not tendered or accepted for payment shall continue to accrete or accrue interest; ;
(4v) that, unless the Company defaults in making such paymentthe payment of the Change of Control Payment, any Note all Securities accepted for payment pursuant to the Change of Control Offer shall cease to accrete or accrue interest after the Change of Control Payment Date; ;
(5vi) that Holders electing to have a Note any Securities purchased pursuant to any a Change of Control Offer shall be required to surrender the NoteSecurities, with the form entitled “Option of Holder to Elect Purchase” on the reverse of the Note Securities completed, or transfer by book-entry transfer, to the Company, a depositary, if appointed by the Company, or the Paying Agent at the address specified in the notice at least three days before prior to the close of business on the second Business Day preceding the Change of Control Payment Date; ;
(6vii) that Holders shall be entitled to withdraw their election if the Company, the depositary or the Paying Agent, as the case may be, Agent receives, not later than the close of business on the second Business Day preceding the Change of Control Payment Date, a notice facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Note the Holder Securities delivered for purchase purchase, and a statement that such Holder is withdrawing his election to have such Note the Securities purchased; and
(7viii) that Notes and portions of Notes purchased shall be in amounts of $1,000 or whole multiples of $1,000, except that if all of the Notes of a Holder are to be purchased, the entire outstanding amount of Notes held by such Holder, even if not a multiple of $1,000, shall be purchased; and (8) that Holders whose Notes were Securities are being purchased only in part shall be issued new Notes Securities equal in principal amount to the unpurchased portion of the Notes surrendered (or transferred by book-entry transfer)Securities surrendered, which unpurchased portion must be equal to $1,000 in principal amount or an integral multiple thereof. The Company shall comply with the requirements of Section 14(e) and Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such those laws and regulations are applicable in connection with the repurchase of the Notes Securities as a result of a Change of Control. To the extent that the provisions of any securities laws or regulations conflict with the Change of Control provisions of this Indenture, the Company shall comply with the applicable securities laws and regulations and shall will not be deemed to have breached its obligations under the Change of Control provisions of this Indenture by virtue of such conflict. The Company may rely on any no-action letters issued by the SEC indicating that the staff of the SEC will not recommend enforcement action in the event a tender offer satisfies certain conditions.
(b) On the Change of Control Payment Date, the Company shall, to the extent lawful:
(1i) accept for payment all Notes Securities or portions thereof of Securities properly tendered pursuant to the Change of Control Offeroffer;
(2ii) deposit with the Paying Agent an amount equal to the Change of Control Payment in respect of all Notes Securities or portions thereof so of Securities properly tendered; and
(3iii) deliver or cause to be delivered to the Trustee the Notes Securities so accepted together with an Officers’ Officer’s Certificate stating the aggregate principal amount of Notes Securities or portions thereof of Securities being purchased by the Company. The Paying Agent shall promptly mail deliver to each Holder of Notes so Securities properly tendered the Change of Control Payment for such NotesSecurities, and the Trustee shall promptly authenticate and mail deliver (or cause to be transferred by book entry) to each Holder a new Note Security equal in principal amount to any unpurchased portion of the Notes Securities surrendered, if any; provided that each such new Note shall Security will be in a principal amount of $1,000 or 2,000 and an integral multiple of $1,000 in excess thereof. The Company shall publicly announce the results of the Change of Control Offer on or as soon as practicable after the Change of Control Payment Date. The provisions set forth described above that require the Company to make a Change of Control Offer following a Change of Control shall will be applicable regardless of whether or not any other provisions of this Indenture are applicable. Notwithstanding anything to the contrary in this Section 4.10, the The Company shall will not be required to make a Change of Control Offer upon a Change of Control if (1) a third party makes the Change of Control Offer in the manner, at the times and otherwise in compliance with the requirements set forth in this Section 4.10 described herein applicable to a Change of Control Offer made by the Company and purchases all Notes Securities validly tendered and not withdrawn under such Change of Control Offer, (2) a notice of redemption has been given pursuant to the Indenture as described under Section 5.8, unless and until there is a default in the payment of the applicable redemption price or (3) if the Company’s obligations under this Indenture are defeased or discharged pursuant to the terms of this Indenture on or promptly following the Change of Control. A Change of Control Offer may be made in advance of a Change of Control and may be conditional upon the occurrence of a Change of Control. In connection with a Change of Control Offer, if Holders of not less than 90% in aggregate principal amount of the outstanding Securities validly tender and do not withdraw their Securities in such Change of Control Offer and the Company, or any third party making a Change of Control Offer in lieu of the Company as permitted by this Section 5.9, purchases all of the Securities validly tendered and not withdrawn by such Holders, the Company or such third party will have the right upon not less than 10 nor more than 60 days’ prior notice, given not more than 15 days following such purchase date, to redeem all Securities that remain outstanding following such purchase at a purchase price equal to 101% of the principal amount thereof, plus accrued and unpaid interest (including Additional Interest, if any) to the purchase date (subject to the rights of Holders of record on the relevant record date to receive interest due on the relevant interest payment date falling on or prior to the redemption date).
Appears in 1 contract
Offer to Repurchase Upon a Change of Control. (a) If a Change of Control occurs, unless the Company has exercised its right to redeem the Notes under Section 3.07, each Holder holder of Notes shall will have the right to require that the Company to repurchase Co-Obligors purchase all or any part (equal to in integral multiples of $1,000 or an integral multiple thereof1,000) of that Holdersuch holder’s Notes pursuant to a change of control the offer on described below (the terms set forth in this Indenture (a “Change of Control Offer”). In the Change of Control Offer, the Company shall Co-Obligors will offer to purchase all of the Notes, at a payment purchase price (the “Change of Control Purchase Price”) in cash in an amount equal to 101% of the aggregate principal amount of Notes repurchased such Notes, plus accrued and unpaid interest interest, if any, and Liquidated Damages, if any, thereon, to the date of purchase (the “Change of Control PaymentPurchase Date”) (subject to the rights of holders of record on relevant record dates to receive interest due on an interest payment date). .
(b) Within 30 days following any Change of ControlControl or, at the Company shall mail a notice Co-Obligors’ option, prior to each Holder at its registered address. The notice shall contain all instructions and materials necessary to enable such Holder to tender Notes pursuant to the Change of Control Offer. Any Change of Control Offer shall be made to all Holders. The noticebut after it is publicly announced, which shall govern the terms Co-Obligors must notify the Trustee and give written notice of the Change of Control Offerto each holder of Notes, shall by first-class mail, postage prepaid, at his address appearing in the security register. The notice must state: , among other things,
(1i) that the a Change of Control Offer is being made pursuant to this Section 4.10; (2) the Change of Control Payment has occurred or will occur and the date on of such event;
(ii) the circumstances and relevant facts regarding such Change of Control, including information with respect to pro forma historical income, cash flow and capitalization after giving effect to such Change of Control;
(iii) the purchase price and the purchase date which Notes tendered and accepted for payment shall be purchased, which date shall be at least fixed by the Co-Obligors on a Business Day no earlier than 30 days and no nor later than 60 days from the date such the notice is mailed (mailed, or such later date as is necessary to comply with requirements under the “Exchange Act; provided that the purchase date may not occur prior to the Change of Control Payment Date”); Control;
(3iv) that any Note not tendered or accepted for payment shall will continue to accrete or accrue interest; ;
(4v) that, unless the Company defaults Co-Obligors default in making such paymentthe payment of the Change of Control Purchase Price, any Note Notes accepted for payment pursuant to the Change of Control Offer shall cease to accrete or accrue interest after the Change of Control Payment Purchase Date; and
(5vi) other procedures that a holder of Notes must follow to accept a Change of Control Offer or to withdraw acceptance of the Change of Control Offer.
(c) Upon receipt by the Co-Obligors of the proper tender of Notes, the Holder of the Note in respect of which such proper tender was made shall (unless the tender of such Note is properly withdrawn) thereafter be entitled to receive solely the Change of Control Purchase Price with respect to such Notes. Upon surrender of any such Note for purchase in accordance with the foregoing provisions, such Note shall be paid by the Co-Obligors at the Change of Control Purchase Price; provided, however, that installments of interest whose Stated Maturity is on or prior to the Change of Control Purchase Date shall be payable to the Holders of such Notes, registered as such on the relevant Regular Record Dates according to the terms and the provisions of Section 2.03. If any Note tendered for purchase in accordance with the provisions of this Section 4.15 shall not be so paid upon surrender thereof, the principal thereof (and premium, if any, thereon) shall, until paid, bear interest from the Change of Control Purchase Date at the rate borne by such Note. Holders electing to have a Note Notes purchased pursuant to any Change of Control Offer shall will be required to surrender the Note, with the form entitled “Option of Holder such Notes to Elect Purchase” on the reverse of the Note completed, or transfer by book-entry transfer, to the Company, a depositary, if appointed by the Company, or the Paying Agent at the address specified in the notice Change of Control Purchase Notice at least three days before one Business Day prior to the Change of Control Payment Purchase Date; (6) . Any Note that Holders is to be purchased only in part shall be entitled surrendered to withdraw their election a Paying Agent at the office of such Paying Agent (with, if the CompanyCo-Obligors, the depositary Registrar or the Paying AgentTrustee so require, due endorsement by, or a written instrument of transfer in form satisfactory to the Co-Obligors and the Registrar or the Trustee, as the case may be, receivesduly executed by, the Holder thereof or such Holder’s attorney duly authorized in writing), and the Co-Obligors shall execute and the Trustee shall authenticate and deliver to the Holder of such Note, without service charge, one or more new Notes of any authorized denomination as requested by such Holder in an aggregate principal amount equal to, and in exchange for, the portion of the principal amount of the Note so surrendered that is not purchased.
(d) The Co-Obligors shall (i) not later than the Change of Control Payment Purchase Date, accept for payment Notes or portions thereof tendered pursuant to the Change of Control Offer, (ii) not later than 10:00 a.m. (New York time) on the Business Day following the Change of Control Purchase Date, deposit with the Trustee or with a Paying Agent an amount of money in same day funds sufficient to pay the aggregate Change of Control Purchase Price of all the Notes or portions thereof which have been so accepted for payment and (iii) not later than 10:00 a.m. (New York time) on the Business Day following the Change of Control Purchase Date, deliver to the Paying Agent an Officers’ Certificate stating the Notes or portions thereof accepted for payment by the Co-Obligors. The Paying Agent shall promptly mail or deliver to Holders of Notes so accepted payment in an amount equal to the Change of Control Purchase Price of the Notes purchased from each such Holder, and the Co-Obligors shall execute and the Trustee shall promptly authenticate and mail or deliver to such Holders a new Note equal in principal amount to any unpurchased portion of the Note surrendered. Any Notes not so accepted shall be promptly mailed or delivered by the Paying Agent at the Co-Obligors’ expense to the Holder thereof. The Co-Obligors will publicly announce the results of the Change of Control Offer on the Change of Control Purchase Date. For purposes of this Section 4.15, the Co-Obligors shall choose a Paying Agent which shall not be the Co-Obligors.
(e) A tender made in response to a Change of Control Purchase Notice may be withdrawn if the Co-Obligors receive, not later than one Business Day prior to the Change of Control Purchase Date, a notice setting forth facsimile transmission or letter, specifying, as applicable:
(i) the name of the Holder, ;
(ii) the certificate number of the Note in respect of which such notice of withdrawal is being submitted;
(iii) the principal amount of the Note the Holder (which shall be $1,000 or an integral multiple thereof) delivered for purchase and by the Holder as to which such notice of withdrawal is being submitted;
(iv) a statement that such Holder is withdrawing his election to have such principal amount of such Note purchased; and
(7v) that Notes and portions the principal amount, if any, of Notes purchased such Note (which shall be in amounts of $1,000 or whole multiples of $1,000, except that if all of the Notes of a Holder are to be purchased, the entire outstanding amount of Notes held by such Holder, even if not a multiple of $1,000, shall be purchased; and (8) that Holders whose Notes were purchased only in part shall be issued new Notes equal in principal amount to the unpurchased portion of the Notes surrendered (or transferred by book-entry transfer), which unpurchased portion must be equal to $1,000 in principal amount or an integral multiple thereof. ) that remains subject to the original Change of Control Purchase Notice and that has been or will be delivered for purchase by the Co-Obligors.
(f) Subject to applicable escheat laws, the Trustee and the Paying Agent shall return to the Co-Obligors any cash that remains unclaimed, together with interest or dividends, if any, thereon, held by them for the payment of the Change of Control Purchase Price; provided, however, that (x) to the extent that the aggregate amount of cash deposited by the Co-Obligors pursuant to clause (ii) of paragraph (d) above exceeds the aggregate Change of Control Purchase Price of the Notes or portions thereof to be purchased, then the Trustee shall hold such excess for the Co-Obligors and (y) unless otherwise directed by the Co-Obligors in writing, promptly after the Business Day following the Change of Control Purchase Date the Trustee shall return any such excess to the Co-Obligors together with interest, if any, thereon.
(g) The Company Co-Obligors shall comply comply, to the extent applicable, with the requirements of applicable tender offer rules, including Rule 14e-1 under the Exchange Act Act, and any other applicable securities laws and or regulations thereunder to the extent such laws and regulations are applicable in connection with the repurchase of the Notes as a result of a Change of ControlControl Offer. To the extent that the provisions of any securities laws or regulations conflict with the “Change of Control Control” provisions of this Indenture, the Company Co-Obligors shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its their obligations under the “Change of Control Control” provisions of this Indenture by virtue of such conflict. On thereof.
(h) Notwithstanding the Change of Control Payment Dateforegoing, the Company shall, to the extent lawful:
(1) accept for payment all Notes or portions thereof properly tendered pursuant to the Change of Control Offer;
(2) deposit with the Paying Agent an amount equal to the Change of Control Payment in respect of all Notes or portions thereof so tendered; and
(3) 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. The Paying Agent shall promptly mail to each Holder of Notes so tendered the Change of Control Payment for such Notes, and the Trustee shall promptly authenticate and mail (or cause to be transferred by book entry) to each Holder a new Note equal in principal amount to any unpurchased portion of the Notes surrendered, if any; provided that each such new Note shall be in a principal amount of $1,000 or an integral multiple thereof. The Company shall publicly announce the results of the Change of Control Offer on or as soon as practicable after the Change of Control Payment Date. The provisions set forth above that require the Company to make a Change of Control Offer following a Change of Control shall be applicable regardless of whether or not any other provisions of this Indenture are applicable. Notwithstanding anything to the contrary in this Section 4.10, the Company shall Co-Obligors will 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 Offer, in the manner, at the times and otherwise in compliance with the requirements set forth in this Section 4.10 Indenture applicable to a Change of Control Offer made by the Co-Obligors and purchases all Notes validly tendered and not withdrawn under such Change of Control Offer.
Appears in 1 contract
Samples: Indenture (Central Credit, LLC)
Offer to Repurchase Upon a Change of Control. If (a) Upon the occurrence of a Change of Control occursTriggering Event, unless the Company has previously or concurrently exercised its right to redeem all of the Notes under pursuant to Section 3.073.01, each Holder of Notes shall have the right to require the Company to repurchase all or any part (equal to $1,000 or an integral multiple thereof) of that such Holder’s Notes pursuant to at a change of control offer on the terms set forth in this Indenture (a “Change of Control Offer”). In the Change of Control Offer, the Company shall offer a payment purchase price in cash equal to 101101.0% of the aggregate principal amount of the Notes repurchased plus accrued and unpaid interest and Liquidated Damagesinterest, if any, thereon, to the date of purchase (subject to the right of Holders of record on the relevant Regular Record Date to receive interest due on an Interest Payment Date falling on or prior to the date of purchase).
(b) Prior to or within 30 days following any Change of Control Triggering Event, unless the Company has previously or concurrently exercised its right to redeem all of the Notes pursuant to Section 3.01, the Company shall deliver a notice (the “Change of Control Offer”) to each Holder or otherwise give notice in accordance with the Applicable Procedures of the Depositary, with a copy to the Trustee, stating:
(1) that a Change of Control Triggering Event has occurred or, if the Change of Control Offer is being made in advance of a Change of Control Triggering Event, that a Change of Control Triggering Event is expected to occur, and that such Holder has, or upon such occurrence will have, the right to require the Company to purchase such Holder’s Notes at a purchase price in cash equal to 101.0% of the principal amount of such Notes plus accrued and unpaid interest, if any, to the date of purchase (subject to the right of Holders of record on a Regular Record Date to receive interest on the relevant Interest Payment Date) (the “Change of Control Payment”). Within 30 days following any Change of Control, the Company shall mail a notice to each Holder at its registered address. The notice shall contain all instructions and materials necessary to enable such Holder to tender Notes pursuant to the Change of Control Offer. Any Change of Control Offer shall be made to all Holders. The notice, which shall govern the terms of the Change of Control Offer, shall state: (1) that the Change of Control Offer is being made pursuant to this Section 4.10; ;
(2) the Change of Control Payment and the repurchase date on (which Notes tendered and accepted for payment shall be purchased, which date shall be at least 30 no earlier than ten days and no nor later than 60 days from the date such notice is mailed delivered) (the “Change of Control Payment Date”); ;
(3) if such notice is delivered prior to the occurrence of a Change of Control or Change of Control Triggering Event, that any Note not tendered or accepted for payment shall continue to accrete or accrue interest; (4) that, unless the Company defaults in making such payment, any Note accepted for payment pursuant to the Change of Control Offer shall cease to accrete or accrue interest after is conditional on the occurrence of a Change of Control Payment DateTriggering Event; and
(54) that Holders electing to have a Note purchased pursuant to any Change of Control Offer shall be required to surrender the Note, with the form entitled “Option of Holder to Elect Purchase” on the reverse of the Note completed, or transfer by book-entry transfer, to the Company, a depositary, if appointed procedures determined by the Company, or the Paying Agent at the address specified in the notice at least three days before the Change of Control Payment Date; (6) that Holders shall be entitled to withdraw their election if the Company, the depositary or the Paying Agent, as the case may be, receives, not later than the Change of Control Payment Date, a notice setting forth the name of the Holder, the principal amount of the Note the Holder delivered for purchase and a statement that such Holder is withdrawing his election to have such Note purchased; (7) that Notes and portions of Notes purchased shall be in amounts of $1,000 or whole multiples of $1,000, except that if all of the Notes of a Holder are to be purchased, the entire outstanding amount of Notes held by such Holder, even if not a multiple of $1,000, shall be purchased; and (8) that Holders whose Notes were purchased only in part shall be issued new Notes equal in principal amount to the unpurchased portion of the Notes surrendered (or transferred by book-entry transfer), which unpurchased portion must be equal to $1,000 in principal amount or an integral multiple thereof. The Company shall comply consistent with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws and regulations are applicable in connection with the repurchase of the Notes as a result of a Change of Control. To the extent that the provisions of any securities laws or regulations conflict with the Change of Control provisions of this Indenture, the Company shall comply with the applicable securities laws and regulations and shall not be deemed that a Holder must follow in order to have breached its obligations under the Change of Control provisions of this Indenture by virtue of such conflictNotes repurchased. On the Change of Control Payment Date, the Company shall, to the extent lawful:
(1) accept for payment all Notes or portions thereof of Notes properly tendered and not withdrawn pursuant to the Change of Control Offer;
(2) deposit with the applicable Paying Agent an amount equal to the Change of Control Payment in respect of all Notes or portions thereof so tenderedof Notes properly tendered and not withdrawn; and
(3) deliver or cause to be delivered to the Trustee for cancellation the Notes so accepted together with an Officers’ Certificate stating the aggregate principal amount of Notes or portions thereof of Notes being purchased by the CompanyCompany in accordance with the terms of this covenant. The applicable Paying Agent shall promptly mail deliver to each Holder of Notes so properly tendered and not withdrawn the Change of Control Payment for such Notes, and the Trustee shall will promptly authenticate and mail (or cause to be transferred by book entry) to each Holder a new Note equal in principal amount to any unpurchased portion of the Notes surrendered, if any; provided , in accordance with Section 3.04(e).
(c) Prior to making a Change of Control Payment, and as a condition to such payment (1) the requisite holders of each issue of Indebtedness issued under an indenture or other agreement that each may be violated by such new Note payment shall be in a principal amount have consented to such Change of $1,000 or an integral multiple thereof. The Company shall publicly announce Control Payment being made and waived the results event of default, if any, caused by the Change of Control Offer on or as soon as practicable after (2) the Company will repay all outstanding Indebtedness issued under an indenture or other agreement that may be violated by a Change of Control Payment or the Company must offer to repay all such Indebtedness, and make payment to the holders of such Indebtedness that accept such offer and obtain waivers of any event of default arising under the relevant indenture or other agreement from the remaining holders of such Indebtedness. The Company covenants to effect such repayment or obtain such consent prior to making a Change of Control Payment, it being a Default of this Section 4.14 if the Company fails to comply with this Section 4.14(c).
(d) If the Change of Control Payment Date is on or after a Regular Record Date and on or before the related Interest Payment Date. The provisions set forth above that require the Company to make a Change of Control Offer following a Change of Control , any accrued and unpaid interest, if any, shall be applicable regardless of whether or not any other provisions of this Indenture are applicable. Notwithstanding anything paid on the relevant Interest Payment Date to the contrary Person in this Section 4.10, whose name a Note is registered at the close of business on such Regular Record Date.
(e) The Company shall not be required to make a Change of Control Offer upon a Change of Control Triggering Event if a third party makes the Change of Control Offer in the manner, at the times and otherwise in compliance with the requirements set forth in this Section 4.10 Indenture applicable to a Change of Control Offer made by the Company and purchases all Notes validly properly tendered and not withdrawn under such Change of Control Offer.
(f) The Company or a third party may, at its option, redeem the Notes upon not less than ten nor more than 60 days’ notice, given not more than 30 days following the consummation of the Change of Control Offer, at a redemption price of 101.0% of the aggregate principal amount of the Notes redeemed, plus accrued and unpaid interest, if any, to the applicable redemption date (subject to the right of holders of record on the relevant record date to receive interest due on an interest payment date falling on or prior to such redemption date), in connection with the consummation of a Change of Control if at least 90.0% of the Notes outstanding prior to the Change of Control Payment Date are purchased pursuant to a Change of Control Offer with respect to such Change of Control.
(g) Notwithstanding anything to the contrary herein, a Change of Control Offer may be made in advance of a Change of Control Triggering Event, conditional upon such Change of Control Triggering Event.
Appears in 1 contract
Samples: Indenture (Viasat Inc)
Offer to Repurchase Upon a Change of Control. (a) If a Change of Control occurs, unless the Company has exercised its right to redeem the Notes under Section 3.07, each Holder of Notes shall have the right to require that the Company to repurchase purchase all or any part (equal to in amounts of $1,000 or an integral multiple whole multiples of $1,000 in excess thereof) of that such Holder’s 's Notes pursuant to a change of control the offer on described below (the terms set forth in this Indenture (a “"Change of Control Offer”"). In the Change of Control Offer, the Company shall offer to purchase all of the Notes, at a payment purchase price (the "Change of Control Purchase Price") in cash in an amount equal to 101% of the aggregate principal amount of Notes repurchased such Notes, plus accrued and unpaid interest and Liquidated Damagesinterest, if any, thereon, to the date of purchase (the “"Change of Control Payment”Purchase Date") (subject to the rights of holders of record on relevant record dates to receive interest due on an interest payment date). .
(b) Within 30 days following after any Change of ControlControl or, at the Company's option, prior to such Change of Control but after it is publicly announced, the Company shall mail a must notify the Trustee and give written notice to each Holder at its registered address. The notice shall contain all instructions and materials necessary to enable such Holder to tender Notes pursuant to the Change of Control Offer. Any Change of Control Offer shall be made to all Holders. The notice, which shall govern the terms of the Change of Control Offer(the "Change of Control Purchase Notice") to each Holder of Notes at his address appearing in the security register. The Change of Control Purchase Notice must state, shall state: among other things:
(1) that the a Change of Control Offer is being made pursuant to this Section 4.10; has occurred or will occur and the date of such event;
(2) the circumstances and relevant facts regarding such Change of Control, including information with respect to pro forma historical income, cash flow and capitalization after giving effect to such Change of Control;
(3) the Change of Control Payment Purchase Price and the date on Change of Control Purchase Date, which Notes tendered and accepted for payment shall be purchased, which date shall be at least fixed by the Company on a Business Day no earlier than 30 days and no nor later than 60 days from the date such the notice is mailed (mailed, or such later date as is necessary to comply with requirements under the “Exchange Act; provided that the Change of Control Payment Date”); Purchase Date may not occur prior to the Change of Control;
(34) that any Note not tendered or accepted for payment shall will continue to accrete or accrue interest; ;
(45) that, unless the Company defaults in making such paymentthe payment of the Change of Control Purchase Price, any Note Notes accepted for payment pursuant to the Change of Control Offer shall cease to accrete or accrue interest after the Change of Control Payment Purchase Date; and
(56) other procedures that Holders electing a Holder of Notes must follow to have accept a Note purchased pursuant to any Change of Control Offer shall be required or to surrender the Note, with the form entitled “Option withdraw acceptance of Holder to Elect Purchase” on the reverse of the Note completed, or transfer by book-entry transfer, to the Company, a depositary, if appointed by the Company, or the Paying Agent at the address specified in the notice at least three days before the Change of Control Payment Date; Offer.
(6c) that Holders shall be entitled to withdraw their election if Upon receipt by the CompanyCompany of the proper tender of Notes, the depositary or the Paying Agent, as the case may be, receives, not later than the Change of Control Payment Date, a notice setting forth the name of the Holder, the principal amount Holder of the Note in respect of which such proper tender was made shall (unless the Holder delivered for purchase and a statement that such Holder is withdrawing his election to have tender of such Note purchased; (7) that Notes and portions of Notes purchased shall be in amounts of $1,000 or whole multiples of $1,000, except that if all of the Notes of a Holder are to be purchased, the entire outstanding amount of Notes held by such Holder, even if not a multiple of $1,000, shall be purchased; and (8) that Holders whose Notes were purchased only in part shall be issued new Notes equal in principal amount to the unpurchased portion of the Notes surrendered (or transferred by book-entry transfer), which unpurchased portion must be equal to $1,000 in principal amount or an integral multiple thereof. The Company shall comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws and regulations are applicable in connection with the repurchase of the Notes as a result of a Change of Control. To the extent that the provisions of any securities laws or regulations conflict with the Change of Control provisions of this Indenture, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under the Change of Control provisions of this Indenture by virtue of such conflict. On the Change of Control Payment Date, the Company shall, to the extent lawful:
(1) accept for payment all Notes or portions thereof is properly tendered pursuant withdrawn at least one Business Day prior to the Change of Control Offer;
(2Purchase Date) deposit thereafter be entitled to receive solely the Change of Control Purchase Price with respect to such Notes. Upon surrender of any such Note for purchase in accordance with the Paying Agent an amount equal foregoing provisions, such Note shall be paid by the Company at the Change of Control Purchase Price; provided, however, that installments of interest whose Stated Maturity is on or prior to the Change of Control Payment in respect of all Notes or portions thereof so tendered; and
(3) deliver or cause to Purchase Date shall be delivered payable to the Trustee the Notes so accepted together with an Officers’ Certificate stating the aggregate principal amount Holders of Notes or portions thereof being purchased by the Company. The Paying Agent shall promptly mail to each Holder of Notes so tendered the Change of Control Payment for such Notes, registered as such on the relevant Regular Record Dates according to the terms and the Trustee shall promptly authenticate and mail (or cause to be transferred by book entry) to each Holder a new Note equal in principal amount to any unpurchased portion of the Notes surrendered, if any; provided that each such new Note shall be in a principal amount of $1,000 or an integral multiple thereof. The Company shall publicly announce the results of the Change of Control Offer on or as soon as practicable after the Change of Control Payment Date. The provisions set forth above that require the Company to make a Change of Control Offer following a Change of Control shall be applicable regardless of whether or not any other provisions of this Indenture are applicable. Notwithstanding anything to the contrary in this Section 4.10, 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 requirements set forth in this Section 4.10 and purchases all Notes validly tendered and not withdrawn under such Change of Control Offer.Section
Appears in 1 contract
Samples: Indenture (Invacare Corp)
Offer to Repurchase Upon a Change of Control. If Subject to any applicable restrictions in the Credit Agreement (as defined in Section 13(a) hereof) with respect to paragraph (a) below:
(a) Upon the occurrence of a Change of Control occurs(as hereinafter defined), unless the Company has exercised its right to redeem the Notes under Section 3.07, each Holder holder of Notes this Note shall have the right right, at such holder's option, to require the Company to repurchase all or any part (equal to $1,000 or an integral multiple thereof) of that Holder’s Notes such holder's Note pursuant to the offer described below, at a change of control offer on the terms set forth in this Indenture (a “Change of Control Offer”). In the Change of Control Offer, the Company shall offer a payment in cash purchase price equal to 101% of the aggregate principal princi- pal amount of Notes repurchased thereof so to be repurchased, plus accrued and unpaid interest and Liquidated Damagesinterest, if any, thereon, to the date of purchase (the “a "Change of Control Payment”"). Within 30 days following 10 Business Days after the Company knows, or reasonably should know, of the occurrence of any Change of Control, the Company shall mail make an irrevocable, unconditional offer (except that such offer may be conditioned upon the closing of the transaction constituting the Change of Control) (a "Change of Control Offer") to all holders of the Notes to purchase all of the Notes for cash in an amount equal to the Change of Control Payment by sending written notice (the "Change of Control Notice") of such Change of Control Offer to each Holder holder by registered or certified mail to the person in whose name the Note is registered at its registered addressaddress maintained by the Company on the date of the mailing of such notice. The notice Change of Control Notice shall contain all instructions and materials necessary required by applicable law and shall contain or make available to enable the holder other information material to such Holder holder's decision to tender Notes this Note pursuant to the Change of Control Offer. Any The Change of Control Offer shall be made to all Holders. The noticeNotice, which shall govern the terms of the Change of in Control Offer, shall state: :
(1i) that the Change of Control Offer is being made pursuant to this Section 4.10; 6, and that all Notes validly tendered will be accepted for payment;
(2ii) the Change of Control Payment (including the amount of accrued and unpaid interest) and the date on which Notes tendered and accepted for payment shall be purchasedpurchase date, which date shall will be at least 30 days and no later than 60 30 days from the date such notice is mailed (the “"Change of Control Payment Date”"); ;
(3iii) that any Note not validly tendered or accepted for payment shall will continue to accrete or accrue interest; ;
(4iv) that, unless the Company defaults in making such paymentthe payment of the Change of Control Payment, any Note accepted for payment pursuant to the Change of Control Offer shall cease to accrete or accrue interest after the Change of Control Payment Date; ;
(5v) that Holders holders electing to have a Note Note, or portion thereof, purchased pursuant to any a Change of Control Offer shall will be required to surrender the Note, with the form entitled “Option of Holder to Elect Purchase” on the reverse of the Note completed, or transfer by book-entry transfer, to the Company, a depositary, if appointed by the Company, or the Paying Agent Company at the address specified in the notice at least three days before not later than the close of business on the Business Day prior to the Change of Control Payment Date; ;
(6vi) that Holders shall holders will be entitled to withdraw their election if the Company, the depositary or the Paying Agent, as the case may be, Company receives, not later than the close of business on the second Business Day prior to the Change of Control Payment Date, a notice telegram, facsimile transmission or letter setting forth the name of the Holderholder, the principal amount of the Note the Holder delivered for purchase and a statement that such Holder holder is withdrawing his its election to have such principal amount of Note purchased; and
(7vii) that Notes and portions of Notes purchased shall be in amounts of $1,000 or whole multiples of $1,000, except that if all of the Notes of a Holder are to be purchased, the entire outstanding amount of Notes held by such Holder, even if not a multiple of $1,000, shall be purchased; and (8) that Holders holders whose Notes were are being purchased only in part shall will be issued a new Notes Note equal in principal amount to the unpurchased portion of the Notes surrendered (or transferred by book-entry transfer), which unpurchased portion must be equal to $1,000 in principal amount or an integral multiple thereof. The Company shall comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws and regulations are applicable in connection with the repurchase of the Notes as a result of a Change of Control. To the extent that the provisions of any securities laws or regulations conflict with the Change of Control provisions of this Indenture, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under the Change of Control provisions of this Indenture by virtue of such conflictNote surrendered. On or before the Change of Control Payment Date, the Company shall, to the extent lawful:
shall (1i) accept for payment all the Notes or portions thereof properly validly tendered pursuant to the Change of Control Offer;
Offer prior to the close of business on the Change of Control Payment Date, (2ii) deposit with promptly mail to the Paying Agent holders of Notes so accepted payment in an amount equal to the Change of Control Payment in respect of all Notes or portions thereof so tendered; and
(3including accrued and unpaid interest) 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. The Paying Agent shall promptly mail to each Holder of Notes so tendered the Change of Control Payment for such Notes, and the Trustee Company shall promptly authenticate and mail (or cause deliver to be transferred by book entry) to each Holder such holders a new Note equal in principal amount to any unpurchased portion of the Note surrendered. Any Notes surrendered, if any; provided that each such new Note not so accepted shall be promptly mailed or delivered by the Company to the holder thereof.
(b) In the event of a Change of Control, the Company will promptly, in a principal amount good faith, (i) seek to obtain any required consent of $1,000 or an integral multiple thereof. The Company shall publicly announce the results holders of any Senior Indebtedness (as defined herein) to permit the Change of Control Offer on or as soon as practicable after and the Change of Control Payment Date. The provisions set forth above that require the Company to make a Change contemplated by this Section 6, or (ii) repay some or all of Control Offer following a Change of Control shall be applicable regardless of whether or not any other provisions of this Indenture are applicable. Notwithstanding anything such Senior Indebtedness to the contrary extent necessary (including, if necessary, payment in this Section 4.10full of such Senior Indebtedness and payment of any prepayment premiums, the Company shall not be required fees, expenses or penalties) to make a Change of Control Offer upon a Change of Control if a third party makes permit the Change of Control Offer in and the manner, at the times and otherwise in compliance with the requirements set forth in this Section 4.10 and purchases all Notes validly tendered and not withdrawn under such Change of Control OfferPayment contemplated hereby without such consent. Failure to comply with the foregoing shall not relieve the Company from its obligations pursuant to paragraph (a) above.
(c) For purposes of this Note "Change of Control" means (i) the sale, lease or transfer, whether direct or indi- rect, of all or substantially all of the assets of the Company and its subsidiaries, taken as a whole, in one transaction or a series of related transactions, to any "person" or "group" (other than the WCAS Group), (ii) the liquidation or dissolution of the Company or the adoption of a plan of liquidation or dissolution of the Company, (iii) the acquisition of "beneficial ownership" by any "person" or "group" (other than the WCAS Group) of voting stock of the Company representing more than 50% of the voting power of all outstanding shares of such voting stock, whether by way of merger or consolidation or otherwise, or (iv) during any period of two consecutive years, the failure of those individuals who at the beginning of such period constituted the Company's Board of Directors (together with any new directors whose election or appointment by such Board or whose nomination for election or appointment by the shareholders of the Company was approved by a vote of a majority of the directors then still in office who were either directors at the beginning of such period or whose election or nomination for election was previously so approved) to constitute a majority of the Company's Board of Directors then in office; provided, however, that in no event shall a foreclosure on any collateral pledged by the Company in respect of obligations arising under or in connection with the Credit Agreement constitute a Change of Control.
Appears in 1 contract
Samples: Senior Subordinated Demand Note (Aurora Electronics Inc)
