Offer to Repurchase Upon a Fundamental Change. (a) If a Fundamental Change occurs at any time prior to the Maturity Date, the Company shall be required to make an offer to repurchase for cash all of the outstanding Notes, or any portion of the principal amount thereof that a Holder determines to sell to the Company that is equal to $1,000 or an integral multiple of $1,000, on the date (the “Fundamental Change Repurchase Date”) specified by the Company that is not less than 20 calendar days or more than 35 calendar days following the date of the Fundamental Change Company Notice at a repurchase price equal to 100% of the aggregate principal amount thereof, plus accrued and unpaid interest thereon (if any) up to, but excluding, the Fundamental Change Repurchase Date (the “Fundamental Change Repurchase Price”), unless the Fundamental Change Repurchase Date falls after a Regular Record Date but on or prior to the Interest Payment Date to which such Regular Record Date relates, in which case the Company shall instead pay the full amount of accrued and unpaid interest to Holders of record as of the close of business such Regular Record Date, and the Fundamental Change Repurchase Price shall be equal to 100% of the aggregate principal amount of Notes to be repurchased pursuant to this Article 15. (b) Acceptance of the repurchase offer contained in the Fundamental Change Company Notice and resulting repurchases under this Section 15.02 shall be made, at the option of the Holder thereof, upon: (i) delivery to the Paying Agent by a Holder of a duly completed notice (the “Fundamental Change Repurchase Notice”) in the form set forth in Attachment 2 to the Form of Note attached hereto as Exhibit A, if the Notes are Physical Notes, or in compliance with the Depository’s procedures for surrendering interests in Global Notes, if the Notes are Global Notes, in each case on or before the close of business on the Business Day immediately preceding the Fundamental Change Repurchase Date; and (ii) delivery of the Notes, if the Notes are Physical Notes, to the Paying Agent at any time after delivery of the Fundamental Change Repurchase Notice (together with all necessary endorsements for transfer) at the Corporate Trust Office of the Paying Agent, or book-entry transfer of the Notes, if the Notes are Global Notes, in compliance with the procedures of the Depository, in each case such delivery being a condition to receipt by the Holder of the Fundamental Change Repurchase Price therefor. The Fundamental Change Repurchase Notice in respect of any Notes to be repurchased shall state: (i) in the case of Physical Notes, the certificate numbers of the Notes to be delivered for repurchase; (ii) the portion of the principal amount of Notes to be repurchased, which must be $1,000 or an integral multiple thereof; and (iii) that the Notes are to be repurchased by the Company pursuant to the applicable provisions of the Notes and this Indenture; provided, however, that if the Notes are Global Notes, the Fundamental Change Repurchase Notice must comply with appropriate Depository procedures. Notwithstanding anything herein to the contrary, any Holder delivering to the Paying Agent the Fundamental Change Repurchase Notice contemplated by this Section 15.02 shall have the right to withdraw, in whole or in part, such Fundamental Change Repurchase Notice at any time prior to the close of business on the Business Day immediately preceding the Fundamental Change Repurchase Date by delivery of a written notice of withdrawal to the Paying Agent (at the address specified in the applicable Fundamental Change Company Notice) in accordance with Section 15.03. The Paying Agent shall promptly notify the Company of the receipt by it of any Fundamental Change Repurchase Notice or written notice of withdrawal thereof. (c) On or before the 20th calendar day after the occurrence of the effective date of a Fundamental Change, the Company shall provide to all Holders of Notes and the Trustee and the Paying Agent (in the case of a Paying Agent other than the Trustee) a notice (the “Fundamental Change Company Notice”) of the occurrence of the effective date of the Fundamental Change and of an offer to repurchase the Notes as a result thereof. In the case of Physical Notes, any such Fundamental Change Company Notice shall be by first class mail or, in the case of Global Notes, any such Fundamental Change Company Notice shall be delivered in accordance with the applicable procedures of the Depository. As promptly as reasonably practicable after providing any such Fundamental Change Company Notice, the Company shall publish a press release containing the information set forth in the Fundamental Change Company Notice, as the case may be, or publish such information on the Company’s website or through such other public medium as the Company may use at that time. Each Fundamental Change Company Notice shall specify: (i) the events causing the Fundamental Change; (ii) the date of the Fundamental Change; (iii) the last date on which a Holder may exercise the repurchase right pursuant to this Article 15; (iv) the Fundamental Change Repurchase Price; (v) the Fundamental Change Repurchase Date; (vi) the name and address of the Paying Agent and the Conversion Agent, if applicable; (vii) if applicable, the Conversion Rate and any adjustments to the Conversion Rate; (viii) if applicable, that the Fundamental Change is a Permitted Sale Transaction for purposes of Article 11 of this Indenture; (ix) that the Notes with respect to which a Fundamental Change Repurchase Notice has been delivered by a Holder may be converted only if the Holder withdraws the Fundamental Change Repurchase Notice in accordance with the terms of this Indenture; and (x) the procedures that Holders must follow to accept the offer from the Company to repurchase their Notes. No failure of the Company to give the foregoing notices and no defect therein shall limit the Holders’ repurchase rights or affect the validity of the proceedings for the repurchase of the Notes pursuant to this Section 15.02. At the Company’s request, the Trustee shall give any such Fundamental Change Company Notice in the Company’s name and at the Company’s expense; provided, however, that, in all cases, the text of such Fundamental Change Company Notice shall be prepared by the Company. (d) Notwithstanding the foregoing, no Notes may be repurchased by the Company on any date at the option of the Holders upon a Fundamental Change, if the principal amount of the Notes has been accelerated, and such acceleration has not been rescinded, on or prior to such date (except in the case of an acceleration resulting from a Default by the Company in the payment of the Fundamental Change Repurchase Price with respect to such Notes). The Paying Agent will promptly return to the respective Holders thereof any Physical Notes held by it during the acceleration of the Notes (except in the case of an acceleration resulting from a Default by the Company in the payment of the Fundamental Change Repurchase Price with respect to such Notes), and any instructions for book-entry transfer of the Notes in compliance with the procedures of the Depository shall be deemed to have been cancelled, and, upon such return or cancellation, as the case may be, the Fundamental Change Repurchase Notice with respect thereto shall be deemed to have been withdrawn. (e) Notwithstanding anything to the contrary herein, the Company will not be required to repurchase, or to make an offer to repurchase, the Notes upon a Fundamental Change if a third party makes such an offer in the same manner, at the same time and otherwise in compliance with the requirements for an offer made by the Company as set forth in this Indenture (including, without limitation, the requirement to comply with applicable securities laws as set forth in this Indenture), and such third party purchases all Notes properly surrendered, and not validly withdrawn, under its offer in the same manner, at the same time and otherwise in compliance with the requirements for an offer made by the Company as set forth in this Indenture (including the requirement to pay the Fundamental Change Repurchase Price on the later of the applicable Fundamental Change Repurchase Date and the time of book-entry transfer or delivery of the relevant Notes); provided that the Company will continue to be obligated to (x) deliver the applicable Fundamental Change Notice to the Holders (which Fundamental Change Notice will state that such third party will make such an offer to purchase the Notes) and, simultaneously with the delivery of such Fundamental Change Notice, to publish a notice containing such information on the Company’s website or through such other public medium as the Company may use at that time, (y) comply with applicable securities laws as set forth in this Indenture in connection with any such purchase and (z) pay the applicable Fundamental Change Repurchase Price on the later of the applicable Fundamental Change Repurchase Date and the time of book-entry transfer or delivery of the relevant notes in the event such third party fails to make such payment in such amount at such time.
Appears in 1 contract
Samples: Indenture (BLACKBERRY LTD)
Offer to Repurchase Upon a Fundamental Change. (a) If Subject to Section 3.10(d) hereof, upon the occurrence of a Fundamental Change occurs at any time prior to Stated Maturity, each Holder may require the Maturity Company to repurchase the Notes on a date chosen by the Company in its sole discretion that is no less than 20 Business Days and no more than 35 Business Days (subject to extension to comply with applicable law) after the Company sends the Fundamental Change Repurchase Right Notice (the "Fundamental Change Repurchase Date"), and the Company shall be required to make an offer to repurchase on the Fundamental Change Repurchase Date, any or all Notes submitted for repurchase for cash all of the outstanding Notescash, or any portion of the initial principal amount thereof that a Holder determines to sell to the Company that is equal to $1,000 or an integral multiple of $1,000, on the date (the “Fundamental Change Repurchase Date”) specified by the Company that is not less than 20 calendar days or more than 35 calendar days following the date of the Fundamental Change Company Notice 1,000 at a repurchase price equal to 100% of the aggregate principal amount thereof, thereof plus accrued and unpaid interest thereon (interest, if any) up to, to but excluding, not including the Fundamental Change Repurchase Date (the “Fundamental Change Repurchase Price”)Date, unless the such Fundamental Change Repurchase Date falls after a Regular Record Date but and on or prior to the corresponding Interest Payment Date to which such Regular Record Date relatesDate, in which case the Company shall instead pay the full amount of accrued and unpaid interest payable on such Interest Payment Date to Holders the Holder of record as of the close of business such Regular Record Date, and the Fundamental Change Repurchase Price shall be equal to 100% of the aggregate principal amount of Notes to be repurchased pursuant to this Article 15.
(b) Acceptance of the repurchase offer contained in the Fundamental Change Company Notice and resulting repurchases under this Section 15.02 shall be made, at the option of the Holder thereof, upon:
(i) delivery to the Paying Agent by a Holder of a duly completed notice (the “Fundamental Change Repurchase Notice”) in the form set forth in Attachment 2 to the Form of Note attached hereto as Exhibit A, if the Notes are Physical Notes, or in compliance with the Depository’s procedures for surrendering interests in Global Notes, if the Notes are Global Notes, in each case on or before the close of business on the corresponding Regular Record Date. At least 20 Business Day immediately preceding Days prior to the anticipated Effective Date of the Fundamental Change Repurchase (or if the Company does not have actual notice of a Fundamental Change 20 Business Days prior to the Effective Date, as soon as the Company has actual notice of such Fundamental Change), the Company will provide to all Holders of the Notes, the Trustee, the Paying Agent and the Conversion Agent a notice (the "Fundamental Change Notice") stating:
(1) if applicable, whether the Company will adjust the Conversion Rate pursuant to Section 6.5(e) hereof;
(2) the anticipated Effective Date of the Fundamental Change; and
(ii3) delivery of the Notes, if the Notes are Physical Notes, to the Paying Agent at any time after delivery of the Fundamental Change Repurchase Notice (together with all necessary endorsements for transfer) at the Corporate Trust Office of the Paying Agent, or book-entry transfer of the Notes, if the Notes are Global Notes, in compliance with the procedures of the Depository, in each case such delivery being a condition to receipt by the Holder of the Fundamental Change Repurchase Price therefor. The Fundamental Change Repurchase Notice in respect of any Notes to be repurchased shall state:
(i) in the case of Physical Notes, the certificate numbers of the Notes to be delivered for repurchase;
(ii) the portion of the principal amount of Notes to be repurchased, which must be $1,000 or an integral multiple thereof; and
(iii) that the Notes are to be repurchased by whether the Company pursuant to the applicable provisions of the Notes and this Indenture; provided, however, expects that if the Notes are Global Notes, the Fundamental Change Repurchase Notice must comply with appropriate Depository procedures. Notwithstanding anything herein to the contrary, any Holder delivering to the Paying Agent the Fundamental Change Repurchase Notice contemplated by this Section 15.02 shall Holders will have the right to withdraw, in whole or in part, such Fundamental Change Repurchase Notice at any time prior to the close of business on the Business Day immediately preceding the Fundamental Change Repurchase Date by delivery of a written notice of withdrawal to the Paying Agent (at the address specified in the applicable Fundamental Change Company Notice) in accordance with Section 15.03. The Paying Agent shall promptly notify require the Company of the receipt by it of any Fundamental Change Repurchase Notice or written notice of withdrawal thereofto repurchase their Notes as described in this Section 3.10.
(cb) On or before the 20th calendar day Trading Day after the occurrence of the effective date Effective Date of a Fundamental Change, the Company shall will provide to all Holders of the Notes and the Trustee and the Paying Agent (in the case of a Paying and Conversion Agent other than the Trustee) a notice (the “Fundamental Change Company Notice”) of the occurrence of the effective date of the Fundamental Change and of an offer to the resulting repurchase right (the Notes as a result thereof. In the case of Physical Notes, any such "Fundamental Change Company Notice shall be by first class mail or, in the case of Global Notes, any such Fundamental Change Company Notice shall be delivered in accordance with the applicable procedures of the Depository. As promptly as reasonably practicable after providing any such Fundamental Change Company Repurchase Right Notice, the Company shall publish a press release containing the information set forth in the Fundamental Change Company Notice, as the case may be, or publish such information on the Company’s website or through such other public medium as the Company may use at that time"). Each Fundamental Change Company Repurchase Right Notice shall specifystate:
(i) the events causing the Fundamental Change;
(ii) the date of the Fundamental Change;
(iii) the last date on which a Holder may exercise the repurchase right pursuant to this Article 15;
(iv) the Fundamental Change Repurchase Price;
(v) the Fundamental Change Repurchase Date;
(vi) the name and address of the Paying Agent and the Conversion Agent, if applicable;
(vii) if applicable, the Conversion Rate and any adjustments to the Conversion Rate;
(viii) if applicable, that the Fundamental Change is a Permitted Sale Transaction for purposes of Article 11 of this Indenture;
(ix) that the Notes with respect to which a Fundamental Change Repurchase Notice has been delivered by a Holder may be converted only if the Holder withdraws the Fundamental Change Repurchase Notice in accordance with the terms of this Indenture; and
(x) the procedures that Holders must follow to accept the offer from the Company to repurchase their Notes. No failure of the Company to give the foregoing notices and no defect therein shall limit the Holders’ repurchase rights or affect the validity of the proceedings for the repurchase of the Notes pursuant to this Section 15.02. At the Company’s request, the Trustee shall give any such Fundamental Change Company Notice in the Company’s name and at the Company’s expense; provided, however, that, in all cases, the text of such Fundamental Change Company Notice shall be prepared by the Company.
(d) Notwithstanding the foregoing, no Notes may be repurchased by the Company on any date at the option of the Holders upon a Fundamental Change, if the principal amount of the Notes has been accelerated, and such acceleration has not been rescinded, on or prior to such date (except in the case of an acceleration resulting from a Default by the Company in the payment of the Fundamental Change Repurchase Price with respect to such Notes). The Paying Agent will promptly return to the respective Holders thereof any Physical Notes held by it during the acceleration of the Notes (except in the case of an acceleration resulting from a Default by the Company in the payment of the Fundamental Change Repurchase Price with respect to such Notes), and any instructions for book-entry transfer of the Notes in compliance with the procedures of the Depository shall be deemed to have been cancelled, and, upon such return or cancellation, as the case may be, the Fundamental Change Repurchase Notice with respect thereto shall be deemed to have been withdrawn.
(e) Notwithstanding anything to the contrary herein, the Company will not be required to repurchase, or to make an offer to repurchase, the Notes upon a Fundamental Change if a third party makes such an offer in the same manner, at the same time and otherwise in compliance with the requirements for an offer made by the Company as set forth in this Indenture (including, without limitation, the requirement to comply with applicable securities laws as set forth in this Indenture), and such third party purchases all Notes properly surrendered, and not validly withdrawn, under its offer in the same manner, at the same time and otherwise in compliance with the requirements for an offer made by the Company as set forth in this Indenture (including the requirement to pay the Fundamental Change Repurchase Price on the later of the applicable Fundamental Change Repurchase Date and the time of book-entry transfer or delivery of the relevant Notes); provided that the Company will continue to be obligated to (x) deliver the applicable Fundamental Change Notice to the Holders (which Fundamental Change Notice will state that such third party will make such an offer to purchase the Notes) and, simultaneously with the delivery of such Fundamental Change Notice, to publish a notice containing such information on the Company’s website or through such other public medium as the Company may use at that time, (y) comply with applicable securities laws as set forth in this Indenture in connection with any such purchase and (z) pay the applicable Fundamental Change Repurchase Price on the later of the applicable Fundamental Change Repurchase Date and the time of book-entry transfer or delivery of the relevant notes in the event such third party fails to make such payment in such amount at such time.
Appears in 1 contract
Offer to Repurchase Upon a Fundamental Change. (a) If Subject to Section 3.7(d) hereof, upon the occurrence of a Fundamental Change occurs at any time prior to Stated Maturity, each Holder may require the Maturity Company to repurchase the Notes on a date chosen by the Company in its sole discretion that is no less than 20 Business Days and no more than 35 Business Days (subject to extension to comply with applicable law) after the Company sends the Fundamental Change Repurchase Right Notice (the “Fundamental Change Repurchase Date”), and the Company shall be required to make an offer to repurchase on the Fundamental Change Repurchase Date, any or all Notes submitted for repurchase for cash all of the outstanding Notescash, or any portion of the initial principal amount thereof that a Holder determines to sell to the Company that is equal to $1,000 or an integral multiple of $1,000, on provided that the date (the “Fundamental Change Repurchase Date”) specified by the Company that principal amount of such security to remain outstanding is not less than 20 calendar days equal to $1,000 or more than 35 calendar days following the date an integral multiple of the Fundamental Change Company Notice $1,000, at a repurchase price equal to 100% of the aggregate principal amount thereof, thereof plus accrued and unpaid interest thereon (interest, if any) up to, to but excluding, not including the Fundamental Change Repurchase Date (the “Fundamental Change Repurchase Price”)Date, unless the such Fundamental Change Repurchase Date falls after a Regular Record Date but and on or prior to the corresponding Interest Payment Date to which such Regular Record Date relatesDate, in which case the Company shall instead pay the full amount of accrued and unpaid interest payable on such Interest Payment Date to Holders the Holder of record as of at the close of business such on the corresponding Regular Record Date, and . At least 20 Business Days prior to the anticipated Effective Date of the Fundamental Change Repurchase Price shall be equal (or if the Company does not have actual notice of a Fundamental Change 20 Business Days prior to 100% the Effective Date, as soon as the Company has actual notice of such Fundamental Change), the Company will provide to all Holders of the aggregate principal amount of Notes to be repurchased pursuant to this Article 15.
(b) Acceptance of Notes, the repurchase offer contained in the Fundamental Change Company Notice and resulting repurchases under this Section 15.02 shall be madeTrustee, at the option of the Holder thereof, upon:
(i) delivery to the Paying Agent by and the Conversion Agent a Holder of a duly completed notice (the “Fundamental Change Repurchase Notice”) in stating:
(1) if applicable, whether the form set forth in Attachment 2 Company will adjust the Conversion Rate pursuant to Section 6.5(e) hereof;
(2) the Form anticipated Effective Date of Note attached hereto as Exhibit A, if the Notes are Physical Notes, or in compliance with the Depository’s procedures for surrendering interests in Global Notes, if the Notes are Global Notes, in each case on or before the close of business on the Business Day immediately preceding the Fundamental Change Repurchase DateChange; and
(ii3) delivery of the Notes, if the Notes are Physical Notes, to the Paying Agent at any time after delivery of the Fundamental Change Repurchase Notice (together with all necessary endorsements for transfer) at the Corporate Trust Office of the Paying Agent, or book-entry transfer of the Notes, if the Notes are Global Notes, in compliance with the procedures of the Depository, in each case such delivery being a condition to receipt by the Holder of the Fundamental Change Repurchase Price therefor. The Fundamental Change Repurchase Notice in respect of any Notes to be repurchased shall state:
(i) in the case of Physical Notes, the certificate numbers of the Notes to be delivered for repurchase;
(ii) the portion of the principal amount of Notes to be repurchased, which must be $1,000 or an integral multiple thereof; and
(iii) that the Notes are to be repurchased by whether the Company pursuant to the applicable provisions of the Notes and this Indenture; provided, however, expects that if the Notes are Global Notes, the Fundamental Change Repurchase Notice must comply with appropriate Depository procedures. Notwithstanding anything herein to the contrary, any Holder delivering to the Paying Agent the Fundamental Change Repurchase Notice contemplated by this Section 15.02 shall Holders will have the right to withdraw, in whole or in part, such Fundamental Change Repurchase Notice at any time prior to the close of business on the Business Day immediately preceding the Fundamental Change Repurchase Date by delivery of a written notice of withdrawal to the Paying Agent (at the address specified in the applicable Fundamental Change Company Notice) in accordance with Section 15.03. The Paying Agent shall promptly notify require the Company of the receipt by it of any Fundamental Change Repurchase Notice or written notice of withdrawal thereofto repurchase their Notes as described in this Section 3.7.
(cb) On or before the 20th calendar day Trading Day after the occurrence of the effective date Effective Date of a Fundamental Change, the Company shall will provide to all Holders of Notes and the Notes, the Trustee and the Paying Agent (in the case of a Paying and Conversion Agent other than the Trustee) a notice (the “Fundamental Change Company Notice”) of the occurrence of the effective date of the Fundamental Change and of an offer to the resulting repurchase right (the Notes as a result thereof. In the case of Physical Notes, any such “Fundamental Change Company Notice shall be by first class mail or, in the case of Global Notes, any such Fundamental Change Company Notice shall be delivered in accordance with the applicable procedures of the Depository. As promptly as reasonably practicable after providing any such Fundamental Change Company Repurchase Right Notice, the Company shall publish a press release containing the information set forth in the Fundamental Change Company Notice, as the case may be, or publish such information on the Company’s website or through such other public medium as the Company may use at that time”). Each Fundamental Change Company Repurchase Right Notice shall specifystate:
(i1) the events causing the Fundamental Change;
(ii2) if the date Company is required to adjust the Conversion Rate and related conversion obligation as described in Section 6.5(e) hereof pursuant to a Fundamental Change that falls under clause (2), (3) or (4) of the definition of Fundamental Change;
(iii) the last date on which a Holder may exercise the repurchase right pursuant to this Article 15;
(iv) the Fundamental Change Repurchase Price;
(v) the Fundamental Change Repurchase Date;
(vi) the name and address of the Paying Agent and the Conversion Agent, if applicable;
(vii) if applicable, the Conversion Rate and any adjustments to the Conversion Rate;
(viii3) the Effective Date, if applicable, that ;
(4) the last date on which a Holder may exercise such repurchase right;
(5) the Fundamental Change is a Permitted Sale Transaction for purposes of Article 11 of this Indenturerepurchase price;
(ix6) the Fundamental Change Repurchase Date;
(7) the name and address of the Paying Agent and the Conversion Agent;
(8) that the Notes with respect to which a the Fundamental Change Repurchase Right Notice has been delivered by a Holder given may be converted only if the Holder thereof withdraws the any Fundamental Change Repurchase Notice previously delivered by such Holder in accordance with the terms of this Indenture; and
(x9) the procedures that Holders must follow to accept the offer from require the Company to repurchase their Notes. No failure .
(c) A Holder may exercise its right specified in Section 3.7(a) upon delivery of a notice of repurchase (a “Fundamental Change Repurchase Notice”) in the Company form required by the Fundamental Change Repurchase Right Notice delivered to give the foregoing notices and no defect therein shall limit Paying Agent at any time prior to 5:00 p.m., New York City time, on the Holders’ repurchase rights or affect second Business Day immediately preceding the validity of Fundamental Change Repurchase Date, stating:
(1) the proceedings for Applicable Procedures or, if such Holder holds Definitive Notes, the repurchase certificate numbers of the Notes pursuant which the Holder will deliver to this Section 15.02. At the Company’s request, the Trustee shall give any such Fundamental Change Company Notice in the Company’s name and at the Company’s expense; provided, however, that, in all cases, the text of such Fundamental Change Company Notice shall be prepared by the Company.repurchased;
(d2) Notwithstanding the foregoing, no Notes may be repurchased by the Company on any date at the option portion of the Holders upon a Fundamental Change, if the principal amount of the Notes has been acceleratedwhich the Holder will deliver to be repurchased, and which portion must be an integral multiple of $1,000; and
(3) that such acceleration has not been rescinded, on or prior Notes are to such date (except in the case of an acceleration resulting from a Default be purchased by the Company in the payment as of the Fundamental Change Repurchase Price with respect to such Notes). The Paying Agent will promptly return Date pursuant to the respective Holders thereof any Physical Notes held by it during the acceleration of terms and conditions specified in the Notes (except and in the case of an acceleration resulting from a Default by the Company in the payment of the Fundamental Change Repurchase Price with respect to such Notes), and any instructions for book-entry transfer of this Indenture. If the Notes are not in compliance with the procedures of the Depository shall be deemed to have been cancelled, and, upon such return or cancellation, as the case may becertificated form, the Fundamental Change Repurchase Notice must comply with respect thereto shall be deemed to have been withdrawn.
the Applicable Procedures. The delivery of such Notes (eeither through the surrender of Definitive Notes or through the delivery of beneficial interests in a Global Note in accordance with the Applicable Procedures) Notwithstanding anything to the contrary herein, the Company will not be required to repurchasePaying Agent with, or to make an offer to repurchaseat any time after delivery of, the Notes upon a Fundamental Change if a third party makes such an offer in the same manner, at the same time and otherwise in compliance with the requirements for an offer made by the Company as set forth in this Indenture (including, without limitation, the requirement to comply with applicable securities laws as set forth in this Indenture), and such third party purchases all Notes properly surrendered, and not validly withdrawn, under its offer in the same manner, at the same time and otherwise in compliance with the requirements for an offer made by the Company as set forth in this Indenture (including the requirement to pay the Fundamental Change Repurchase Price on Right Notice (together with all necessary endorsements) at the offices of the Paying Agent shall be a condition to the receipt by the Holder of payment therefor; provided, however, that such payment shall be so paid pursuant to this Section 3.7 only if the Notes so delivered to the Paying Agent shall conform in all respects to the description thereof in the related Fundamental Change Repurchase Notice. Any repurchase by the Company pursuant to the provisions of this Section 3.7 shall be consummated by the delivery of the consideration to be received by the Holder promptly following the later of the applicable Fundamental Change Repurchase Date and the time of delivery of the Notes. Unless the Company defaults in the payment for the Notes to be repurchased pursuant to this Section 3.7, and provided that the Company or a Subsidiary thereof is not serving as the Paying Agent and the Paying Agent holds money or securities sufficient to pay the repurchase price of such Notes on the Business Day following the Fundamental Change Repurchase Date, such Notes will cease to be outstanding and interest, if any, shall cease to accrue on the Notes or portions thereof delivered for repurchase on the Fundamental Change Repurchase Date (whether or not book-entry transfer or delivery of the relevant Notes is made or whether or not the Notes are delivered to the Paying Agent) and all other rights of the Holders of the Notes to be repurchased pursuant to this Section 3.7 shall terminate (other than the right to receive payment upon delivery or transfer of the Notes).
(d) The Company will comply with the requirements of Rule 13e-4 and Rule 14e-1 under the Exchange Act, including the filing of a Schedule TO if required, and will comply with the requirements of any other federal and state securities laws and regulations thereunder to the extent those laws and regulations are applicable in connection with the repurchase of the Notes by the Company as a result of a Fundamental Change. To the extent that the provisions of any securities laws or regulations conflict with the provisions of this Section 3.7, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under this Section 3.7 by virtue of such conflict.
(e) On or before the Fundamental Change Repurchase Date, the Company will, to the extent lawful:
(1) accept for payment all Notes or portions thereof properly tendered;
(2) deposit with the Paying Agent an amount equal to the payment in respect of all Notes or portions of Notes properly 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 of Notes being purchased by the Company in accordance with the terms of this Section 3.7. The Paying Agent will promptly mail to each Holder of Notes properly tendered the payment for such Notes, and the Trustee 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 new Note will be in a principal amount of $1,000 and integral multiples of $1,000 in excess thereof.
(f) Notwithstanding anything contained herein to the contrary, Holders of the Notes will not have the right to require the Company to repurchase any Notes pursuant to the occurrence of any of the events identified in clauses (2), (3) or (4) of the definition of Fundamental Change (and the Company will continue not be required to be obligated to (x) deliver the applicable Fundamental Change Notice to the Holders (which Fundamental Change Notice will state that such third party will make such an offer to purchase the Notes) and, simultaneously with the delivery of such Fundamental Change Notice, to publish a notice containing such information on the Company’s website or through such other public medium as the Company may use at that time, (y) comply with applicable securities laws as set forth in this Indenture in connection with any such purchase and (z) pay the applicable Fundamental Change Repurchase Right Notice incidental thereto), if either:
(1) the Closing Sale Price of the Common Stock for any five Trading Days within the period of ten (10) consecutive Trading Days (A) ending on and including the later of the applicable date of the occurrence of the Fundamental Change or the public announcement of the Fundamental Change under clause (2) of the definition of Fundamental Change; or (B) immediately before the Fundamental Change in the case of a Fundamental Change under clauses (3) or (4) of the definition of Fundamental Change, equals or exceeds 105% of the Applicable Conversion Price of the Notes in effect on each of those five Trading Days; or
(2) at least 90% of the consideration paid for the Common Stock (excluding cash payments for fractional shares, cash payments made pursuant to dissenters’ appraisal rights and cash dividends) in a Fundamental Change under clause (2) and/or clause (3) of the definition of Fundamental Change consists of shares of common stock traded on NASDAQ, NYSE, another U.S. national securities exchange or LSE (or will be so traded immediately following the merger or consolidation) and, as a result of such Fundamental Change, the Notes become convertible into such shares of such common stock.
(g) Upon receipt by the Paying Agent of a Fundamental Change Repurchase Notice specified in Section 3.7(c) hereof, the Holder of the Notes in respect of which such Fundamental Change Repurchase Notice was given shall (unless such Fundamental Change Repurchase Notice is withdrawn as specified in Section 3.7(h) hereof) thereafter be entitled to receive solely the payment described in Section 3.7(a) hereof with respect to such Notes. Such payment shall be paid to such Holder, subject to the Paying Agent holding money or securities sufficient to make such payment on the Business Day following the Fundamental Change Repurchase Date, promptly following the later of (a) the Fundamental Change Repurchase Date (provided the conditions in Section 3.7(c) have been satisfied) and (b) the time of book-entry transfer or the delivery of such Notes to the relevant notes Paying Agent by the Holder thereof in the event manner required by Section 3.7(c). Notes in respect of which a Fundamental Change Repurchase Notice has been given by the Holder thereof may not be converted pursuant to Article VI on or after the date of the delivery of such third party fails Fundamental Change Repurchase Notice unless such Fundamental Change Repurchase Notice has first been validly withdrawn as specified in Section 3.7(h) hereof.
(h) Notwithstanding anything contained herein to make the contrary, any Holder that has delivered to the Paying Agent the Fundamental Change Repurchase Notice contemplated by Section 3.7(c) hereof shall have the right to withdraw such payment Fundamental Change Repurchase Notice, in whole or in part, by means of a written notice of withdrawal delivered to the Paying Agent at any time prior to 5:00 p.m., New York City time, on the second Business Day immediately preceding the Fundamental Change Repurchase Date, specifying:
(1) the principal amount of the Notes with respect to which such amount at notice of withdrawal is being submitted;
(2) the certificate numbers of the Definitive Notes, if any, in respect of which such timenotice of withdrawal is being submitted; and
(3) the principal amount, if any, of such Notes that remain subject to the original Fundamental Change Repurchase Notice and which have been or will be delivered for repurchase by the Company. If the Notes with respect to which the notice of withdrawal is being submitted are not in certificated form, the notice of withdrawal must comply with the Applicable Procedures.
(i) The Trustee shall be under no obligation to ascertain the occurrence of a Fundamental Change or to give notice with respect thereto. The Trustee may conclusively assume, in the absence of written notice to the contrary from the Company, that no Fundamental Change has occurred.
Appears in 1 contract
Offer to Repurchase Upon a Fundamental Change. (a) If Upon the occurrence of a Fundamental Change occurs at any time prior to (i) from the Maturity Datedate hereof until October 14, 2013, the Company shall be required to make an offer to each Holder to repurchase for cash all or any part of the outstanding NotesUnits at the prices (expressed as percentages of the sum of principal amount, accrued but unpaid Payment-in-Kind Interest, and default interest that has theretofore been paid in Payment-in-Kind Interest) set forth for the applicable period in Section 3.07 hereof plus accrued and unpaid cash interest, and (ii) at all other times, the Company shall make an offer to each Holder to repurchase all or any portion of the principal amount thereof that a Holder determines to sell to the Company that is part (equal to $1,000 500 or an integral multiple of $1,0001.00 in excess thereof) of that Holder’s Notes (such offer in the foregoing clause (i) or (ii), on the date (the a “Fundamental Change Repurchase DateOffer”) specified by the Company that is not less than 20 calendar days or more than 35 calendar days following the date of the Fundamental Change Company Notice at a repurchase purchase price equal to 100% of the aggregate principal amount thereof, plus accrued and unpaid interest thereon (if any) up to, but excluding, the Fundamental Change Repurchase Date (the “Fundamental Change Repurchase Price”), unless the Fundamental Change Repurchase Date falls after a Regular Record Date but on or prior to the Interest Payment Date to which such Regular Record Date relates, in which case the Company shall instead pay the full amount of accrued and unpaid interest to Holders of record as of the close of business such Regular Record Date, and the Fundamental Change Repurchase Price shall be cash equal to 100% of the aggregate principal amount of Notes to be repurchased, plus accrued and unpaid cash interest and Payment-In-Kind Interest, if any, on the Notes repurchased pursuant to this Article 15.
(b) Acceptance of the repurchase offer contained in the Fundamental Change Company Notice and resulting repurchases under this Section 15.02 shall be made, at the option of the Holder thereof, upon:
(i) delivery to the Paying Agent by a Holder date of a duly completed notice purchase, subject to the rights of Holders of Notes on the relevant record date to receive interest due on the relevant interest payment date (the “Fundamental Change Repurchase NoticePayment”) in ). Within ten days following any Fundamental Change, the form set forth in Attachment 2 Company will mail a notice to each Holder describing the Form of Note attached hereto as Exhibit A, if the Notes are Physical Notes, transaction or in compliance with the Depository’s procedures for surrendering interests in Global Notes, if the Notes are Global Notes, in each case on or before the close of business on the Business Day immediately preceding transactions that constitute the Fundamental Change Repurchase Date; andand stating:
(ii1) delivery that the Fundamental Change Offer is being made pursuant to this Section 4.15 and that all Notes tendered will be accepted for payment;
(2) the purchase price and the purchase date, which shall be no earlier than 30 days and no later than 60 days from the date such notice is mailed (the “Fundamental Change Payment Date”);
(3) that any Note not tendered will continue to accrue interest;
(4) that, unless the Company defaults in the payment of the Fundamental Change Payment, all Notes accepted for payment pursuant to the Fundamental Change Offer will cease to accrue interest after the Fundamental Change Payment Date;
(5) that Holders electing to have any Notes purchased pursuant to a Fundamental Change Offer will be required to surrender the Notes, if with the form entitled “Option of Holder to Elect Purchase” attached to the Notes are Physical Notescompleted, or transfer by book-entry transfer, to the Paying Agent at any time after delivery of the Fundamental Change Repurchase Notice (together with all necessary endorsements for transfer) at the Corporate Trust Office of the Paying Agent, or book-entry transfer of the Notes, if the Notes are Global Notes, in compliance with the procedures of the Depository, in each case such delivery being a condition to receipt by the Holder of the Fundamental Change Repurchase Price therefor. The Fundamental Change Repurchase Notice in respect of any Notes to be repurchased shall state:
(i) address specified in the case of Physical Notes, the certificate numbers of the Notes to be delivered for repurchase;
(ii) the portion of the principal amount of Notes to be repurchased, which must be $1,000 or an integral multiple thereof; and
(iii) that the Notes are to be repurchased by the Company pursuant to the applicable provisions of the Notes and this Indenture; provided, however, that if the Notes are Global Notes, the Fundamental Change Repurchase Notice must comply with appropriate Depository procedures. Notwithstanding anything herein to the contrary, any Holder delivering to the Paying Agent the Fundamental Change Repurchase Notice contemplated by this Section 15.02 shall have the right to withdraw, in whole or in part, such Fundamental Change Repurchase Notice at any time notice prior to the close of business on the third Business Day immediately preceding the Fundamental Change Repurchase Date by delivery of a written notice of withdrawal Payment Date;
(6) that Holders will be entitled to withdraw their election if the Paying Agent (at the address specified in the applicable Fundamental Change Company Notice) in accordance with Section 15.03. The Paying Agent shall promptly notify the Company of the receipt by it of any Fundamental Change Repurchase Notice or written notice of withdrawal thereof.
(c) On or before the 20th calendar day after the occurrence of the effective date of a Fundamental Changereceives, the Company shall provide to all Holders of Notes and the Trustee and the Paying Agent (in the case of a Paying Agent other not later than the Trustee) a notice (close of business on the “Fundamental Change Company Notice”) of the occurrence of the effective date of second Business Day preceding the Fundamental Change Payment Date, facsimile transmission or letter setting forth the name of the Holder, the principal amount of Notes delivered for purchase, and a statement that such Hoxxxx xs withdrawing his election to have the Notes purchased; and
(7) that Holders whose Notes are being purchased only in part will be issued new Notes equal in principal amount to the unpurchased portion of the Notes surrendered, which unpurchased portion must be equal to $500 in principal amount or an offer integral multiple of $1.00 in excess thereof. The Company will 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 Notes as a result thereofof a Fundamental Change. In To the case extent that the provisions of Physical Notesany securities laws or regulations conflict with the provisions of this Section 4.15, any such Fundamental Change the Company Notice shall be by first class mail or, in the case of Global Notes, any such Fundamental Change Company Notice shall be delivered in accordance will comply with the applicable procedures securities laws and regulations and will not be deemed to have breached its obligations under this Section 4.15 by virtue of such compliance.
(b) On the Depository. As promptly as reasonably practicable after providing any such Fundamental Change Company NoticePayment Date, the Company shall publish a press release containing will, to the information set forth in extent lawful:
(1) accept for payment all Notes or portions of Notes properly tendered pursuant to the Fundamental Change Company Notice, as the case may be, or publish such information on the Company’s website or through such other public medium as the Company may use at that time. Each Fundamental Change Company Notice shall specify:
(i) the events causing the Fundamental ChangeOffer;
(ii2) deposit with the date of the Fundamental Change;
(iii) the last date on which a Holder may exercise the repurchase right pursuant Paying Agent an amount in same day funds in United States dollars equal to this Article 15;
(iv) the Fundamental Change Repurchase Price;
(v) the Fundamental Change Repurchase Date;
(vi) the name and address Payment in respect of the Paying Agent and the Conversion Agent, if applicable;
(vii) if applicable, the Conversion Rate and any adjustments to the Conversion Rate;
(viii) if applicable, that the Fundamental Change is a Permitted Sale Transaction for purposes all Notes or portions of Article 11 of this Indenture;
(ix) that the Notes with respect to which a Fundamental Change Repurchase Notice has been delivered by a Holder may be converted only if the Holder withdraws the Fundamental Change Repurchase Notice in accordance with the terms of this Indentureproperly tendered; and
(x3) deliver or cause to be delivered to the procedures that Holders must follow to accept the offer from the Company to repurchase their Notes. No failure of the Company to give the foregoing notices and no defect therein shall limit the Holders’ repurchase rights or affect the validity of the proceedings for the repurchase of Trustee the Notes pursuant to this Section 15.02. At properly accepted together with an Officers’ Certificate stating the Company’s request, the Trustee shall give any such Fundamental Change Company Notice in the Company’s name and at the Company’s expense; provided, however, that, in all cases, the text aggregate principal amount of such Fundamental Change Company Notice shall be prepared Notes or portions of Notes being purchased by the Company.
(d) Notwithstanding the foregoing, no Notes may be repurchased by the Company on any date at the option of the Holders upon a Fundamental Change, if the principal amount of the Notes has been accelerated, and such acceleration has not been rescinded, on or prior to such date (except in the case of an acceleration resulting from a Default by the Company in the payment of the Fundamental Change Repurchase Price with respect to such Notes). The Paying Agent will promptly return (but in any case not later than five days after the Fundamental Change Payment Date) mail to each Holder of Notes properly tendered the respective Holders thereof Fundamental Change Payment for such Notes, and upon receipt of an Authentication Order, the Trustee 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 Physical Notes held by it during the acceleration unpurchased portion of the Notes (except in surrendered, if any. The Company will publicly announce the case of an acceleration resulting from a Default by the Company in the payment results of the Fundamental Change Repurchase Price with respect to such Notes), and any instructions for book-entry transfer of the Notes in compliance with the procedures of the Depository shall be deemed to have been cancelled, and, upon such return Offer on or cancellation, as the case may be, soon as practicable after the Fundamental Change Repurchase Notice with respect thereto shall be deemed to have been withdrawnPayment Date.
(ec) Notwithstanding anything to the contrary hereinin this Section 4.15, the Company will not be required to repurchase, or to make an offer to repurchase, the Notes a Fundamental Change Offer upon a Fundamental Change if (1) a third party makes such an offer the Fundamental Change Offer in the same manner, at the same time times and otherwise in compliance with the requirements for an offer made by the Company as set forth in this Indenture (including, without limitation, the requirement to comply with applicable securities laws as set forth in this Indenture), Section 4.15 and such third party purchases all Notes properly surrendered, tendered and not validly withdrawn, withdrawn under its offer in the same manner, at the same time and otherwise in compliance with the requirements for an offer made by the Company as set forth in this Indenture (including the requirement to pay the Fundamental Change Repurchase Price on the later Offer, or (2) notice of redemption has been given pursuant to Section 3.07 hereof, unless and until there is a default in payment of the applicable redemption price.
(d) Notwithstanding anything to the contrary contained herein, a Fundamental Change Repurchase Date and Offer may be commenced no more than 30 Business Days in advance of a Fundamental Change, conditioned upon the time of book-entry transfer or delivery of the relevant Notes); provided that the Company will continue to be obligated to (x) deliver the applicable Fundamental Change Notice to the Holders (which Fundamental Change Notice will state that such third party will make such an offer to purchase the Notes) and, simultaneously with the delivery consummation of such Fundamental Change NoticeChange, to publish if a notice containing such information on definitive agreement is in place for the Company’s website or through such other public medium as the Company may use at that time, (y) comply with applicable securities laws as set forth in this Indenture in connection with any such purchase and (z) pay the applicable Fundamental Change Repurchase Price on at the later of time the applicable Fundamental Change Repurchase Date and the time of book-entry transfer or delivery of the relevant notes in the event such third party fails to make such payment in such amount at such timeOffer is made.
Appears in 1 contract
Samples: Indenture (Handy & Harman Ltd.)
Offer to Repurchase Upon a Fundamental Change. (a) If a Fundamental Change occurs at any time prior to the Maturity Datetime, the Company shall will be required to make an offer (“Fundamental Change Offer”) to repurchase for cash all of the outstanding such Holder’s Notes, or any portion of the principal amount thereof that a Holder determines to sell to the Company that is equal to $1,000 or an integral multiple of $1,000thereof, on the date (the “Fundamental Change Repurchase Date”) specified by the Company that is not less than 20 calendar days or more than 35 calendar days following the date on which of the notice Fundamental Change Company Notice Offer is provided in accordance with the provisions of Section 15.05(a) at a repurchase price equal to 100% of the aggregate principal amount Then Current Principal Amount thereof, plus any accrued and unpaid interest thereon (if any) up to, but excluding, the Fundamental Change Repurchase Date plus the Redemption Premium (determined as if the Springing Repurchase Date were a Redemption Date pursuant to a Make-Whole Redemption of the Notes under Section 16.01(c)) (the “Fundamental Change Repurchase Price”), unless the Fundamental Change Repurchase Date falls after a Regular an Interest Record Date but on or prior to the Interest Payment Date to which such Regular 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 the close of business such Regular Interest Record Date, and the Fundamental Change Repurchase Price shall be equal to 100% of the aggregate principal amount Then Current Principal Amount of Notes to be repurchased pursuant to this Article 15Section 15.05.
(b) Acceptance of the repurchase offer contained in the Fundamental Change Company Notice and resulting repurchases under this Section 15.02 shall be made, at the option of the Holder thereof, upon:
(i) delivery to the Paying Agent by a Holder of a duly completed notice (the “Fundamental Change Repurchase Notice”) in the form set forth in Attachment 2 to the Form of Note attached hereto as Exhibit A, if the Notes are Physical Notes, or in compliance with the Depository’s procedures for surrendering interests in Global Notes, if the Notes are Global Notes, in each case on or before the close of business on the Business Day immediately preceding the Fundamental Change Repurchase Date; and
(ii) delivery of the Notes, if the Notes are Physical Notes, to the Paying Agent at any time after delivery of the Fundamental Change Repurchase Notice (together with all necessary endorsements for transfer) at the Corporate Trust Office of the Paying Agent, or book-entry transfer of the Notes, if the Notes are Global Notes, in compliance with the procedures of the Depository, in each case such delivery being a condition to receipt by the Holder of the Fundamental Change Repurchase Price therefor. The Fundamental Change Repurchase Notice in respect of any Notes to be repurchased shall state:
(i) in the case of Physical Notes, the certificate numbers of the Notes to be delivered for repurchase;
(ii) the portion of the principal amount of Notes to be repurchased, which must be $1,000 or an integral multiple thereof; and
(iii) that the Notes are to be repurchased by the Company pursuant to the applicable provisions of the Notes and this Indenture; provided, however, that if the Notes are Global Notes, the Fundamental Change Repurchase Notice must comply with appropriate Depository procedures. Notwithstanding anything herein to the contrary, any Holder delivering to the Paying Agent the Fundamental Change Repurchase Notice contemplated by this Section 15.02 shall have the right to withdraw, in whole or in part, such Fundamental Change Repurchase Notice at any time prior to the close of business on the Business Day immediately preceding the Fundamental Change Repurchase Date by delivery of a written notice of withdrawal to the Paying Agent (at the address specified in the applicable Fundamental Change Company Notice) in accordance with Section 15.03. The Paying Agent shall promptly notify the Company of the receipt by it of any Fundamental Change Repurchase Notice or written notice of withdrawal thereof.
(ca) On or before the 20th calendar day after the occurrence of the effective date of a Fundamental Change, the Company shall provide send, or cause to be sent, by first class mail or electronically, a notice to the Trustee, the 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 Fundamental Change Offer. Any Fundamental Change Offer shall be made to all Holders of Notes and Holders. The notice, which shall govern the Trustee and the Paying Agent (in the case of a Paying Agent other than the Trustee) a notice (the “Fundamental Change Company Notice”) of the occurrence of the effective date terms of the Fundamental Change and of an offer to repurchase the Notes as a result thereof. In the case of Physical NotesOffer, any such Fundamental Change Company Notice shall be by first class mail or, in the case of Global Notes, any such Fundamental Change Company Notice shall be delivered in accordance with the applicable procedures of the Depository. As promptly as reasonably practicable after providing any such Fundamental Change Company Notice, the Company shall publish a press release containing the information set forth in state:
(A) that the Fundamental Change Company NoticeOffer is being made pursuant to this Section 15.05 and that, as to the case may beextent lawful, or publish such information on the Company’s website or through such other public medium as the Company may use at that time. Each Fundamental Change Company Notice all Notes tendered and not withdrawn shall specify:
(i) the events causing the Fundamental Changebe accepted for payment;
(ii) the date of the Fundamental Change;
(iii) the last date on which a Holder may exercise the repurchase right pursuant to this Article 15;
(ivB) the Fundamental Change Repurchase Price;
(v) Price and the Fundamental Change Repurchase Date;
(viC) that any Notes not tendered or accepted for payment shall continue to accrue interest in accordance with the name and address of the Paying Agent and the Conversion Agent, if applicableterms thereof;
(viiD) that, unless the Company defaults in making such payment, any Notes accepted for payment pursuant to the Fundamental Change Offer shall cease to accrue interest on and after the Fundamental Change Repurchase Date;
(E) that Holders electing to have any Notes purchased pursuant to any Fundamental Change Offer shall be required to surrender the Notes, with the Form of “Option of Holder to Elect Purchase” completed, to the Trustee at the address specified in the notice at least two Business Days before the Fundamental Change Repurchase Date, or transfer by book-entry transfer, to the Company, a Depositary, if applicableappointed by the Company, or a Paying Agent at the address specified in the notice at least two Business Days before the Fundamental Change Repurchase Date;
(F) that Holders shall be entitled to withdraw their repurchase election if the Trustee receives, not later than two Business Days prior to the Fundamental Change Repurchase Date, a notice setting forth the name of the Holder, the Original Principal Amount of Notes the Holder delivered for purchase and a statement that such Xxxxxx is withdrawing its election to have such Notes purchased;
(G) that Holders whose Notes were purchased only in part shall be issued new Notes in Original Principal Amounts equal to the unpurchased portion of the Original Principal Amount of Notes surrendered (or transferred by book-entry); and
(H) the Conversion Rate per $1,000 principal amount of Notes and any applicable adjustments to the Conversion Rate;
(viii) if applicable, that . On the Fundamental Change is a Permitted Sale Transaction for purposes of Article 11 of this Indenture;Repurchase Date, the Issuer will, to the extent permitted by law,
(ixI) accept for payment all Notes issued by it or portions thereof properly tendered pursuant to the Fundamental Change Offer,
(J) deposit with the Trustee an amount equal to the aggregate Fundamental Change payment in respect of all Notes or portions thereof so tendered, and
(K) deliver, or cause to be delivered, to the Trustee for cancellation the Notes so accepted together with an Officer’s Certificate to the Trustee stating that such Notes or portions thereof have been tendered to and purchased by the Company.
(b) A repurchase election in connection with a Fundamental Change Offer may be withdrawn (in whole or in part) by means of a written notice of withdrawal delivered to the office of the Paying Agent in accordance with this Section 15.05(b) at any time prior to the close of business on the second Business Day immediately preceding the Fundamental Change Repurchase Date, specifying:
(i) the Original Principal Amount of Notes with respect to which such notice of withdrawal is being submitted (which must be in integral multiples of the Original Principal Amount of $1,000),
(ii) if Physical Notes have been issued, the certificate number of the Note in respect of which such notice of withdrawal is being submitted, and
(iii) the Original Principal Amount of Notes, if any (which must be in integral multiples of the Original Principal Amount of $1,000), that remain subject to the original repurchase election which portion must be in integral multiples of the Original Principal Amount of $1,000.
(c) The Company will 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 each repurchase of Notes pursuant to a Fundamental Change Repurchase Notice has been delivered by a Holder may be converted only if Offer. To the Holder withdraws extent that the Fundamental Change Repurchase Notice in accordance provisions of any securities laws or regulations conflict with the terms provisions of this Indenture; and
(x) the procedures that Holders must follow to accept the offer from Section 15.05, the Company will comply with the applicable securities laws and regulations and will not be deemed to repurchase their Notes. No failure of the Company to give the foregoing notices and no defect therein shall limit the Holders’ repurchase rights or affect the validity of the proceedings for the repurchase of the Notes pursuant to have breached its obligations under this Section 15.02. At the Company’s request, the Trustee shall give any such Fundamental Change Company Notice in the Company’s name and at the Company’s expense; provided, however, that, in all cases, the text Section 15.05 by virtue of such Fundamental Change Company Notice shall be prepared by the Companycompliance.
(d) Notwithstanding the foregoing, no Notes may be repurchased by the Company on any date at the option of the Holders upon a Fundamental Change, Change if the principal amount of the Notes has been accelerated, and such acceleration has not been rescinded, on or prior to such date (except in the case of an acceleration resulting from a Default by the Company in the payment of the Fundamental Change Repurchase Price with respect to such Notes). The Paying Agent will promptly return to the respective Holders thereof any Physical Notes held by it during the acceleration of the Notes (except in the case of an acceleration resulting from a Default by the Company in the payment of the Fundamental Change Repurchase Price with respect to such Notes), and any instructions for book-entry transfer of the Notes in compliance with the procedures of the Depository shall be deemed to have been cancelled, and, upon such return or cancellation, as the case may be, the Fundamental Change Repurchase Notice with respect thereto shall be deemed to have been withdrawn.
(e) Notwithstanding anything to the contrary hereinin this Section 15.05, the Company will shall not be required to repurchase, repurchase or to make an offer to repurchase, repurchase the Notes upon a Fundamental Change if a third party makes such an offer in the same manner, at the same time and otherwise in compliance with the requirements for an offer made by the Company as set forth in this Indenture (including, without limitation, the requirement to comply with applicable securities laws as set forth in this Indenture), and such third party purchases all Notes properly surrendered, surrendered and not validly withdrawn, withdrawn under its offer in the same manner, at the same time and otherwise in compliance with the requirements for an offer made by the Company as set forth in this Indenture (including the requirement to pay the Fundamental Change Repurchase Price on the later of the applicable Fundamental Change Repurchase Date and the time of book-entry transfer or delivery of the relevant Notes); provided that the Company will continue to be obligated to (x) deliver the applicable Fundamental Change Notice to the Holders (which Fundamental Change Notice will state that such third party will make such an offer to purchase the Notes) and, simultaneously with the delivery of such Fundamental Change Notice, to publish a notice containing such information on the Company’s website or through such other public medium as the Company may use at that time, (y) comply with applicable securities laws as set forth in this Indenture in connection with any such purchase and (z) pay the applicable Fundamental Change Repurchase Price on the later of the applicable Fundamental Change Repurchase Date and the time of book-entry transfer or delivery of the relevant notes in the event such third party fails to make such payment in such amount at such timeIndenture.
Appears in 1 contract
Offer to Repurchase Upon a Fundamental Change. (a) If Subject to Section 3.7(d) hereof, upon the occurrence of a Fundamental Change occurs at any time prior to Stated Maturity, each Holder may require the Maturity Company to repurchase the Notes on a date chosen by the Company in its sole discretion that is no less than 20 Business Days and no more than 35 Business Days (subject to extension to comply with applicable law) after the Company sends the Fundamental Change Repurchase Right Notice (the “Fundamental Change Repurchase Date”), and the Company shall be required to make an offer to repurchase on the Fundamental Change Repurchase Date, any or all Notes submitted for repurchase for cash all of the outstanding Notescash, or any portion of the initial principal amount thereof that a Holder determines to sell to the Company that is equal to $1,000 2,000 or an integral multiple of $1,000, on provided that the date (the “Fundamental Change Repurchase Date”) specified by the Company that principal amount of such security to remain outstanding is not less than 20 calendar days equal to $2,000 or more than 35 calendar days following the date an integral multiple of the Fundamental Change Company Notice $1,000, at a repurchase price equal to 100% of the aggregate principal amount thereof, thereof plus accrued and unpaid interest thereon (interest, if any) up to, to but excluding, not including the Fundamental Change Repurchase Date (the “Fundamental Change Repurchase Price”)Date, unless the such Fundamental Change Repurchase Date falls after a Regular Record Date but and on or prior to the corresponding Interest Payment Date to which such Regular Record Date relatesDate, in which case the Company shall instead pay the full amount of accrued and unpaid interest payable on such Interest Payment Date to Holders the Holder of record as of at the close of business such on the corresponding Regular Record Date, and . At least 20 Business Days prior to the anticipated Effective Date of the Fundamental Change Repurchase Price shall be equal (or if the Company does not have actual notice of a Fundamental Change 20 Business Days prior to 100% the Effective Date, as soon as the Company has actual notice of such Fundamental Change), the Company will provide to all Holders of the aggregate principal amount of Notes to be repurchased pursuant to this Article 15.
(b) Acceptance of Notes, the repurchase offer contained in the Fundamental Change Company Notice and resulting repurchases under this Section 15.02 shall be madeTrustee, at the option of the Holder thereof, upon:
(i) delivery to the Paying Agent, the Registrar and the Conversion Agent by a Holder of a duly completed notice (the “Fundamental Change Repurchase Notice”) in stating:
(1) if applicable, whether the form set forth in Attachment 2 Company will adjust the Conversion Rate pursuant to Section 6.5(e) hereof;
(2) the Form anticipated Effective Date of Note attached hereto as Exhibit A, if the Notes are Physical Notes, or in compliance with the Depository’s procedures for surrendering interests in Global Notes, if the Notes are Global Notes, in each case on or before the close of business on the Business Day immediately preceding the Fundamental Change Repurchase DateChange; and
(ii3) delivery of the Notes, if the Notes are Physical Notes, to the Paying Agent at any time after delivery of the Fundamental Change Repurchase Notice (together with all necessary endorsements for transfer) at the Corporate Trust Office of the Paying Agent, or book-entry transfer of the Notes, if the Notes are Global Notes, in compliance with the procedures of the Depository, in each case such delivery being a condition to receipt by the Holder of the Fundamental Change Repurchase Price therefor. The Fundamental Change Repurchase Notice in respect of any Notes to be repurchased shall state:
(i) in the case of Physical Notes, the certificate numbers of the Notes to be delivered for repurchase;
(ii) the portion of the principal amount of Notes to be repurchased, which must be $1,000 or an integral multiple thereof; and
(iii) that the Notes are to be repurchased by whether the Company pursuant to the applicable provisions of the Notes and this Indenture; provided, however, expects that if the Notes are Global Notes, the Fundamental Change Repurchase Notice must comply with appropriate Depository procedures. Notwithstanding anything herein to the contrary, any Holder delivering to the Paying Agent the Fundamental Change Repurchase Notice contemplated by this Section 15.02 shall Holders will have the right to withdraw, in whole or in part, such Fundamental Change Repurchase Notice at any time prior to the close of business on the Business Day immediately preceding the Fundamental Change Repurchase Date by delivery of a written notice of withdrawal to the Paying Agent (at the address specified in the applicable Fundamental Change Company Notice) in accordance with Section 15.03. The Paying Agent shall promptly notify require the Company of the receipt by it of any Fundamental Change Repurchase Notice or written notice of withdrawal thereofto repurchase their Notes as described in this Section 3.7.
(cb) On or before the 20th calendar day Trading Day after the occurrence of the effective date Effective Date of a Fundamental Change, the Company shall will provide to all Holders of the Notes and the Trustee Trustee, the Paying Agent, the Registrar and the Paying Conversion Agent (in the case of a Paying Agent other than the Trustee) a notice (the “Fundamental Change Company Notice”) of the occurrence of the effective date of the Fundamental Change and of an offer to the resulting repurchase right (the Notes as a result thereof. In the case of Physical Notes, any such “Fundamental Change Company Notice shall be by first class mail or, in the case of Global Notes, any such Fundamental Change Company Notice shall be delivered in accordance with the applicable procedures of the Depository. As promptly as reasonably practicable after providing any such Fundamental Change Company Repurchase Right Notice, the Company shall publish a press release containing the information set forth in the Fundamental Change Company Notice, as the case may be, or publish such information on the Company’s website or through such other public medium as the Company may use at that time”). Each Fundamental Change Company Repurchase Right Notice shall specifystate:
(i1) the events causing the Fundamental Change;
(ii2) if the date Company is required to adjust the Conversion Rate and related conversion obligation as described in Section 6.5(e) hereof pursuant to a Fundamental Change that falls under clause (2), (3) or (4) of the definition of Fundamental Change;
(iii) the last date on which a Holder may exercise the repurchase right pursuant to this Article 15;
(iv) the Fundamental Change Repurchase Price;
(v) the Fundamental Change Repurchase Date;
(vi) the name and address of the Paying Agent and the Conversion Agent, if applicable;
(vii) if applicable, the Conversion Rate and any adjustments to the Conversion Rate;
(viii3) the Effective Date, if applicable, that ;
(4) the last date on which a Holder may exercise such repurchase right;
(5) the Fundamental Change is a Permitted Sale Transaction for purposes of Article 11 of this Indenturerepurchase price;
(ix6) the Fundamental Change Repurchase Date;
(7) the name and address of the Paying Agent and the Conversion Agent;
(8) that the Notes with respect to which a the Fundamental Change Repurchase Right Notice has been delivered by a Holder given may be converted only if the Holder thereof withdraws the any Fundamental Change Repurchase Notice previously delivered by such Holder in accordance with the terms of this Indenture; and
(x9) the procedures that Holders must follow to accept the offer from require the Company to repurchase their Notes. No failure .
(c) A Holder may exercise its right specified in Section 3.7(a) upon delivery of a notice of repurchase (a “Fundamental Change Repurchase Notice”) in accordance with the Company requirements below delivered to give the foregoing notices and no defect therein shall limit Paying Agent at any time prior to 5:00 p.m., New York City time, on the Holders’ repurchase rights or affect second Business Day immediately preceding the validity of Fundamental Change Repurchase Date, stating:
(1) the proceedings for Applicable Procedures or, if such Holder holds Definitive Notes, the repurchase certificate numbers of the Notes pursuant which the Holder will deliver to this Section 15.02. At the Company’s request, the Trustee shall give any such Fundamental Change Company Notice in the Company’s name and at the Company’s expense; provided, however, that, in all cases, the text of such Fundamental Change Company Notice shall be prepared by the Company.repurchased;
(d2) Notwithstanding the foregoing, no Notes may be repurchased by the Company on any date at the option portion of the Holders upon a Fundamental Change, if the principal amount of the Notes has been acceleratedwhich the Holder will deliver to be repurchased, and which portion must be in a principal amount of $2,000 or an integral multiple of $1,000 in excess thereof; and
(3) that such acceleration has not been rescinded, on or prior Notes are to such date (except in the case of an acceleration resulting from a Default be purchased by the Company in the payment as of the Fundamental Change Repurchase Price with respect to such Notes). The Paying Agent will promptly return Date pursuant to the respective Holders thereof any Physical Notes held by it during the acceleration of terms and conditions specified in the Notes (except and in the case of an acceleration resulting from a Default by the Company in the payment of the Fundamental Change Repurchase Price with respect to such Notes), and any instructions for book-entry transfer of this Indenture. If the Notes are not in compliance with the procedures of the Depository shall be deemed to have been cancelled, and, upon such return or cancellation, as the case may becertificated form, the Fundamental Change Repurchase Notice must comply with respect thereto shall be deemed to have been withdrawn.
the Applicable Procedures. The delivery of such Notes (eeither through the surrender of Definitive Notes or through the delivery of beneficial interests in a Global Note in accordance with the Applicable Procedures) Notwithstanding anything to the contrary herein, the Company will not be required to repurchasePaying Agent with, or to make an offer to repurchaseat any time after delivery of, the Notes upon a Fundamental Change if a third party makes such an offer in the same manner, at the same time and otherwise in compliance with the requirements for an offer made by the Company as set forth in this Indenture (including, without limitation, the requirement to comply with applicable securities laws as set forth in this Indenture), and such third party purchases all Notes properly surrendered, and not validly withdrawn, under its offer in the same manner, at the same time and otherwise in compliance with the requirements for an offer made by the Company as set forth in this Indenture (including the requirement to pay the Fundamental Change Repurchase Price on Right Notice (together with all necessary endorsements) at the offices of the Paying Agent shall be a condition to the receipt by the Holder of payment therefor; provided, however, that such payment shall be so paid pursuant to this Section 3.7 only if the Notes so delivered to the Paying Agent shall conform in all respects to the description thereof in the related Fundamental Change Repurchase Notice. Any repurchase by the Company pursuant to the provisions of this Section 3.7 shall be consummated by the delivery of the consideration to be received by the Holder promptly following the later of the applicable Fundamental Change Repurchase Date and the time of delivery of the Notes. Unless the Company defaults in the payment for the Notes to be repurchased pursuant to this Section 3.7, and provided that the Company or a Subsidiary thereof is not serving as the Paying Agent and the Paying Agent holds money or securities sufficient to pay the repurchase price of such Notes on the Fundamental Change Repurchase Date, such Notes will cease to be outstanding and interest, if any, shall cease to accrue on the Notes or portions thereof delivered for repurchase on the Fundamental Change Repurchase Date (whether or not book-entry transfer or delivery of the relevant Notes is made or whether or not the Notes are delivered to the Paying Agent) and all other rights of the Holders of the Notes to be repurchased pursuant to this Section 3.7 shall terminate (other than the right to receive payment upon delivery or transfer of the Notes).
(d) The Company will comply with the requirements of Rule 13e-4 and Rule 14e-1 under the Exchange Act, including the filing of a Schedule TO if required, and will comply with the requirements of any other federal and state securities laws and regulations thereunder to the extent those laws and regulations are applicable in connection with the repurchase of the Notes by the Company as a result of a Fundamental Change. To the extent that the provisions of any securities laws or regulations conflict with the provisions of this Section 3.7, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under this Section 3.7 by virtue of such conflict.
(e) On or before the Fundamental Change Repurchase Date, the Company will, to the extent lawful:
(1) accept for payment all Notes or portions thereof properly tendered;
(2) deposit with the Paying Agent an amount equal to the payment in respect of all Notes or portions of Notes properly 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 of Notes being purchased by the Company in accordance with the terms of this Section 3.7. The Paying Agent will promptly mail to each Holder of Notes properly tendered the payment for such Notes, and the Trustee 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 new Note will be in a principal amount of $2,000 and integral multiples of $1,000 in excess thereof. Notwithstanding anything contained herein to the contrary, Holders of the Notes will not have the right to require the Company to repurchase any Notes pursuant to the occurrence of any of the events identified in clauses (2) or (3) of the definition of Fundamental Change (and the Company will continue not be required to be obligated to (x) deliver the applicable Fundamental Change Repurchase Right Notice incidental thereto), if at least 90% of the consideration paid for the Common Stock (excluding cash payments for fractional shares, cash payments made pursuant to the Holders (which dissenters’ appraisal rights and cash dividends) in a Fundamental Change Notice under clause (2) and/or clause (3) of the definition of Fundamental Change consists of shares of common stock traded on the NYSE or another U.S. national securities exchange or quoted on NASDAQ or another established automated over-the-counter trading market in the United States (or will state that such third party will make such an offer to purchase be so traded or quoted immediately following the Notesmerger or consolidation) and, simultaneously with the delivery as a result of such Fundamental Change NoticeChange, to publish the Notes become convertible into such shares of such common stock.
(f) Upon receipt by the Paying Agent of a notice containing such information on the Company’s website or through such other public medium as the Company may use at that time, (y) comply with applicable securities laws as set forth in this Indenture in connection with any such purchase and (z) pay the applicable Fundamental Change Repurchase Price Notice specified in Section 3.7(c) hereof, the Holder of the Notes in respect of which such Fundamental Change Repurchase Notice was given shall (unless such Fundamental Change Repurchase Notice is withdrawn as specified in Section 3.7(h) hereof) thereafter be entitled to receive solely the payment described in Section 3.7(a) hereof with respect to such Notes. Such payment shall be paid to such Holder, subject to the Paying Agent holding money or securities sufficient to make such payment on the Fundamental Change Repurchase Date, promptly following the later of (a) the applicable Fundamental Change Repurchase Date (provided the conditions in Section 3.7(c) have been satisfied) and (b) the time of book-entry transfer or the delivery of such Notes to the relevant notes Paying Agent by the Holder thereof in the event manner required by Section 3.7(c). Notes in respect of which a Fundamental Change Repurchase Notice has been given by the Holder thereof may not be converted pursuant to Article VI on or after the date of the delivery of such third party fails Fundamental Change Repurchase Notice unless such Fundamental Change Repurchase Notice has first been validly withdrawn as specified in Section 3.7(h) hereof.
(g) Notwithstanding anything contained herein to make the contrary, any Holder that has delivered to the Paying Agent the Fundamental Change Repurchase Notice contemplated by Section 3.7(c) hereof shall have the right to withdraw such payment Fundamental Change Repurchase Notice, in whole or in part, by means of a written notice of withdrawal delivered to the Paying Agent at any time prior to 5:00 p.m., New York City time, on the second Business Day immediately preceding the Fundamental Change Repurchase Date, specifying:
(1) the principal amount of the Notes with respect to which such amount at notice of withdrawal is being submitted;
(2) the certificate numbers of the Definitive Notes, if any, in respect of which such timenotice of withdrawal is being submitted; and
(3) the principal amount, if any, of such Notes that remain subject to the original Fundamental Change Repurchase Notice and which have been or will be delivered for repurchase by the Company. If the Notes with respect to which the notice of withdrawal is being submitted are not in certificated form, the notice of withdrawal must comply with the Applicable Procedures.
(h) The Trustee shall be under no obligation to ascertain the occurrence of a Fundamental Change or to give notice to the Holders with respect thereto. The Trustee may conclusively assume, in the absence of written notice to the contrary from the Company, that no Fundamental Change has occurred.
Appears in 1 contract
Samples: Indenture (Ciena Corp)
Offer to Repurchase Upon a Fundamental Change. (a) If a Fundamental Change occurs at any time prior to the Maturity Datetime, the Company shall will be required to make an offer (“Fundamental Change Offer”) to repurchase for cash all of the outstanding such Holder’s Notes, or any portion of the principal amount thereof that a Holder determines to sell to the Company that is equal to $1,000 Original Principal Amount or an integral multiple of $1,0001,000 Original Principal Amount, on the date (the “Fundamental Change Repurchase Date”) specified by the Company that is not less than 20 calendar days or more than 35 calendar days following the date on which of the notice Fundamental Change Company Notice Offer is provided in accordance with the provisions of Section 15.05(a) at a repurchase price equal to 100% of the aggregate principal amount Then Current Principal Amount thereof, plus any accrued and unpaid interest thereon (if any) up to, but excluding, the Fundamental Change Repurchase Date plus the Redemption Premium (determined as if the Springing Repurchase Date were a Redemption Date pursuant to a Make-Whole Redemption of the Notes under Section 16.01(c)) (the “Fundamental Change Repurchase Price”), unless the Fundamental Change Repurchase Date falls after a Regular an Interest Record Date but on or prior to the Interest Payment Date to which such Regular 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 the close of business such Regular Interest Record Date, and the Fundamental Change Repurchase Price shall be equal to 100% of the aggregate principal amount Then Current Principal Amount of Notes to be repurchased pursuant to this Article 15Section 15.05.
(b) Acceptance of the repurchase offer contained in the Fundamental Change Company Notice and resulting repurchases under this Section 15.02 shall be made, at the option of the Holder thereof, upon:
(i) delivery to the Paying Agent by a Holder of a duly completed notice (the “Fundamental Change Repurchase Notice”) in the form set forth in Attachment 2 to the Form of Note attached hereto as Exhibit A, if the Notes are Physical Notes, or in compliance with the Depository’s procedures for surrendering interests in Global Notes, if the Notes are Global Notes, in each case on or before the close of business on the Business Day immediately preceding the Fundamental Change Repurchase Date; and
(ii) delivery of the Notes, if the Notes are Physical Notes, to the Paying Agent at any time after delivery of the Fundamental Change Repurchase Notice (together with all necessary endorsements for transfer) at the Corporate Trust Office of the Paying Agent, or book-entry transfer of the Notes, if the Notes are Global Notes, in compliance with the procedures of the Depository, in each case such delivery being a condition to receipt by the Holder of the Fundamental Change Repurchase Price therefor. The Fundamental Change Repurchase Notice in respect of any Notes to be repurchased shall state:
(i) in the case of Physical Notes, the certificate numbers of the Notes to be delivered for repurchase;
(ii) the portion of the principal amount of Notes to be repurchased, which must be $1,000 or an integral multiple thereof; and
(iii) that the Notes are to be repurchased by the Company pursuant to the applicable provisions of the Notes and this Indenture; provided, however, that if the Notes are Global Notes, the Fundamental Change Repurchase Notice must comply with appropriate Depository procedures. Notwithstanding anything herein to the contrary, any Holder delivering to the Paying Agent the Fundamental Change Repurchase Notice contemplated by this Section 15.02 shall have the right to withdraw, in whole or in part, such Fundamental Change Repurchase Notice at any time prior to the close of business on the Business Day immediately preceding the Fundamental Change Repurchase Date by delivery of a written notice of withdrawal to the Paying Agent (at the address specified in the applicable Fundamental Change Company Notice) in accordance with Section 15.03. The Paying Agent shall promptly notify the Company of the receipt by it of any Fundamental Change Repurchase Notice or written notice of withdrawal thereof.
(ca) On or before the 20th calendar day after the occurrence of the effective date of a Fundamental Change, the Company shall provide send, or cause to be sent, by first class mail or electronically, a notice to the Trustee, the 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 Fundamental Change Offer. Any Fundamental Change Offer shall be made to all Holders of Notes and Holders. The notice, which shall govern the Trustee and the Paying Agent (in the case of a Paying Agent other than the Trustee) a notice (the “Fundamental Change Company Notice”) of the occurrence of the effective date terms of the Fundamental Change and of an offer to repurchase the Notes as a result thereof. In the case of Physical NotesOffer, any such Fundamental Change Company Notice shall be by first class mail or, in the case of Global Notes, any such Fundamental Change Company Notice shall be delivered in accordance with the applicable procedures of the Depository. As promptly as reasonably practicable after providing any such Fundamental Change Company Notice, the Company shall publish a press release containing the information set forth in state:
(A) that the Fundamental Change Company NoticeOffer is being made pursuant to this Section 15.05 and that, as to the case may beextent lawful, or publish such information on the Company’s website or through such other public medium as the Company may use at that time. Each Fundamental Change Company Notice all Notes tendered and not withdrawn shall specify:
(i) the events causing the Fundamental Changebe accepted for payment;
(ii) the date of the Fundamental Change;
(iii) the last date on which a Holder may exercise the repurchase right pursuant to this Article 15;
(ivB) the Fundamental Change Repurchase Price;
(v) Price and the Fundamental Change Repurchase Date;
(viC) that any Notes not tendered or accepted for payment shall continue to accrue interest in accordance with the name and address of the Paying Agent and the Conversion Agent, if applicableterms thereof;
(viiD) that, unless the Company defaults in making such payment, any Notes accepted for payment pursuant to the Fundamental Change Offer shall cease to accrue interest on and after the Fundamental Change Repurchase Date;
(E) that Holders electing to have any Notes purchased pursuant to any Fundamental Change Offer shall be required to surrender the Notes, with the form entitled “Option of Holder to Elect Purchase” on the reverse of the Note completed, to the Trustee at the address specified in the notice at least two Business Days before the Fundamental Change Repurchase Date, or transfer by book-entry transfer, to the Company, a Depositary, if applicableappointed by the Company, or a Paying Agent at the address specified in the notice at least two Business Days before the Fundamental Change Repurchase Date;
(F) that Holders shall be entitled to withdraw their repurchase election if the Trustee receives, not later than two Business Days prior to the Fundamental Change Repurchase Date, a notice setting forth the name of the Holder, the Original Principal Amount of Notes the Holder delivered for purchase and a statement that such Holder is withdrawing its election to have such Notes purchased;
(G) that Holders whose Notes were purchased only in part shall be issued new Notes in Original Principal Amounts equal to the unpurchased portion of the Original Principal Amount of Notes surrendered (or transferred by book-entry);
(H) the Conversion Rate per $1,000 principal amount of Notes and any applicable adjustments to the Conversion Rate;; and
(viiiI) the CUSIP, ISIN or other similar numbers, if applicableany, that assigned to the Notes. On the Fundamental Change is a Permitted Sale Transaction for purposes of Article 11 of this Indenture;Repurchase Date, the Issuer will, to the extent permitted by law,
(ixJ) accept for payment all Notes issued by it or portions thereof properly tendered pursuant to the Fundamental Change Offer,
(K) deposit with the Trustee an amount equal to the aggregate Fundamental Change payment in respect of all Notes or portions thereof so tendered, and
(L) deliver, or cause to be delivered, to the Trustee for cancellation the Notes so accepted together with an Officer’s Certificate to the Trustee stating that such Notes or portions thereof have been tendered to and purchased by the Company.
(b) A repurchase election in connection with a Fundamental Change Offer may be withdrawn (in whole or in part) by means of a written notice of withdrawal delivered to the office of the Paying Agent in accordance with this Section 15.05(b) at any time prior to the close of business on the second Business Day immediately preceding the Fundamental Change Repurchase Date, specifying:
(i) the number of Notes with respect to which a Fundamental Change Repurchase Notice has such notice of withdrawal is being submitted (which must be in integral multiples of the Original Principal Amount of $1,000),
(ii) if Physical Notes have been delivered by a Holder may be converted only if issued, the Holder withdraws certificate number of the Fundamental Change Repurchase Notice Note in accordance with the terms respect of this Indenture; which such notice of withdrawal is being submitted, and
(xiii) the procedures that Holders number of Notes, if any (which must follow to accept the offer from the Company to repurchase their Notes. No failure be in integral multiples of the Company Original Principal Amount of $1,000), that remain subject to give the foregoing notices and no defect therein shall limit the Holders’ original repurchase rights or affect the validity election, which portion must be in integral multiples of the proceedings for the repurchase Original Principal Amount of the Notes pursuant to this Section 15.02. At the Company’s request, the Trustee shall give any such Fundamental Change Company Notice in the Company’s name and at the Company’s expense$1,000; provided, however, that, in all casesthat if the Notes are Global Notes, the text notice must comply with appropriate procedures of the Depositary.
(c) The Company will 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 each repurchase of Notes pursuant to a Fundamental Change Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of this Section 15.05, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under this Section 15.05 by virtue of such Fundamental Change Company Notice shall be prepared by the Companycompliance.
(d) Notwithstanding the foregoing, no Notes may be repurchased by the Company on any date at the option of the Holders upon a Fundamental Change, Change if the principal amount of the Notes has been accelerated, and such acceleration has not been rescinded, on or prior to such date (except in the case of an acceleration resulting from a Default by the Company in the payment of the Fundamental Change Repurchase Price with respect to such Notes). The Paying Agent will promptly return to the respective Holders thereof any Physical Notes held by it during the acceleration of the Notes (except in the case of an acceleration resulting from a Default by the Company in the payment of the Fundamental Change Repurchase Price with respect to such Notes), and any instructions for book-entry transfer of the Notes in compliance with the procedures of the Depository shall be deemed to have been cancelled, and, upon such return or cancellation, as the case may be, the Fundamental Change Repurchase Notice with respect thereto shall be deemed to have been withdrawn.
(e) Notwithstanding anything to the contrary hereinin this Section 15.05, the Company will shall not be required to repurchase, repurchase or to make an offer to repurchase, repurchase the Notes upon a Fundamental Change if a third party makes such an offer in the same manner, at the same time and otherwise in compliance with the requirements for an offer made by the Company as set forth in this Indenture (including, without limitation, the requirement to comply with applicable securities laws as set forth in this Indenture), and such third party purchases all Notes properly surrendered, surrendered and not validly withdrawn, withdrawn under its offer in the same manner, at the same time and otherwise in compliance with the requirements for an offer made by the Company as set forth in this Indenture (including the requirement to pay the Fundamental Change Repurchase Price on the later of the applicable Fundamental Change Repurchase Date and the time of book-entry transfer or delivery of the relevant Notes); provided that the Company will continue to be obligated to (x) deliver the applicable Fundamental Change Notice to the Holders (which Fundamental Change Notice will state that such third party will make such an offer to purchase the Notes) and, simultaneously with the delivery of such Fundamental Change Notice, to publish a notice containing such information on the Company’s website or through such other public medium as the Company may use at that time, (y) comply with applicable securities laws as set forth in this Indenture in connection with any such purchase and (z) pay the applicable Fundamental Change Repurchase Price on the later of the applicable Fundamental Change Repurchase Date and the time of book-entry transfer or delivery of the relevant notes in the event such third party fails to make such payment in such amount at such timeIndenture.
Appears in 1 contract
Offer to Repurchase Upon a Fundamental Change. (a) If a Fundamental Change occurs at any time prior to the Maturity Datetime, the Company shall be required to make an offer to repurchase for cash all of the outstanding Notes, or any portion Notes in integral multiples of the principal amount thereof that a Holder determines to sell to the Company that is equal to $1,000 or an integral multiple of $1,000, on the date (the “Fundamental Change Repurchase Date”) specified by the Company that is not less than 20 calendar days Business Days or more than 35 calendar days Business Days following the date of the Fundamental Change Company Notice at a repurchase price equal to 100% of the aggregate principal amount thereof, plus accrued and unpaid interest thereon (if any) up to, but excluding, the Fundamental Change Repurchase Date (the “Fundamental Change Repurchase Price”), unless the Fundamental Change Repurchase Date falls after a Regular Record Date but on or prior to the Interest Payment Date to which such Regular Record Date relates, in which case the Company shall instead pay the full amount of accrued and unpaid interest to Holders of record as of the close of business such Regular Record Date, and the Fundamental Change Repurchase Price shall be equal to 100% of the aggregate principal amount of Notes to be repurchased pursuant to this Article Article 15.
(b) On or before the 20th Business Day after the occurrence of a Fundamental Change, the Company shall provide to all Holders and the Trustee and the Paying Agent (in the case of a Paying Agent other than the Trustee) a notice (the “Fundamental Change Company Notice”) of the occurrence of the Fundamental Change, including an offer to repurchase the Notes. In the case of Definitive Notes, such notice shall be by first class mail or, in the case of Global Notes, such notice shall be delivered in accordance with the applicable procedures of the Depositary. Simultaneously with providing such notice, the Company shall publish such information on the Company’s website or through such other public medium as the Company may use at that time including through a press release filed on SEDAR+ and XXXXX. Each Fundamental Change Company Notice shall specify:
(i) the events causing the Fundamental Change;
(ii) the Effective Date of the Fundamental Change;
(iii) the last date on which a Holder may exercise the repurchase right pursuant to this Article 15;
(iv) the Fundamental Change Repurchase Price;
(v) the Fundamental Change Repurchase Date;
(vi) the name and address of the Paying Agent and the Conversion Agent (if other than the Trustee), if applicable;
(vii) if applicable, the Conversion Rate and any adjustments to the Conversion Rate;
(viii) that the Notes with respect to which a Fundamental Change Repurchase Notice has been delivered by a Holder may be converted only if the Holder withdraws the Fundamental Change Repurchase Notice in accordance with the terms of this Indenture; and
(ix) the procedures that Holders must follow to accept an offer by the Company to repurchase their Notes. No failure of the Company to give the foregoing notices and no defect therein shall limit the Holders’ repurchase rights or affect the validity of the proceedings for the repurchase of the Notes pursuant to this Section 15.02. At the Company’s request, the Trustee shall give such notice in the Company’s name and at the Company’s expense; provided, however, that, in all cases, the text of such Fundamental Change Company Notice shall be prepared by the Company. Notwithstanding the foregoing, the Company shall not be required to make an offer to repurchase or repurchase the Notes upon a Fundamental Change, if a third party makes such an offer in the same manner, at the same time and otherwise in compliance with the requirements for an offer made by the Company as set forth herein and such third party purchases all Notes properly surrendered and not validly withdrawn under its offer in the same manner, at the same time and otherwise in compliance with the requirements for an offer made by the Company as set forth herein.
(c) Acceptance of the repurchase offer contained in the Fundamental Change Company Notice and resulting repurchases of Notes under this Section Section 15.02 shall be made, at the option of the Holder thereof, upon:
(i) delivery to the Paying Agent by a Holder of a duly completed notice (the “Fundamental Change Repurchase Notice”) in the form set forth in Attachment 2 to the Form of Note attached hereto as Exhibit A, if the Notes are Physical Definitive Notes, or in compliance with the DepositoryDepositary’s procedures for surrendering interests in Global Notes, if the Notes are Global Notes, in each case case, on or before the close of business on the Business Day immediately preceding the Fundamental Change Repurchase Date; and
(ii) delivery of the Notes, if the Notes are Physical Definitive Notes, to the Paying Agent at any time after delivery of the Fundamental Change Repurchase Notice (together with all necessary endorsements for transfer) at the Corporate Trust Office of the Paying Agent, or book-entry transfer of the Notes, if the Notes are Global Notes, in compliance with the procedures of the DepositoryDepositary, in each case case, such delivery or transfer being a condition to receipt by the Holder of the Fundamental Change Repurchase Price therefor. The Fundamental Change Repurchase Notice in respect of any Definitive Notes to be repurchased shall state:
(i) in the case of Physical Notes, the certificate numbers of the Notes to be delivered for repurchase;
(ii) the portion of the principal amount of Notes to be repurchased, which must be $1,000 or an integral multiple thereof; and
(iii) that the Notes are to be repurchased by the Company pursuant to the applicable provisions of the Notes and this Indenture; provided, however, that if . If the Notes are Global Notes, to exercise the Fundamental Change Repurchase Notice repurchase right, Holders must comply surrender their Notes in accordance with appropriate Depository applicable Depositary procedures. Notwithstanding anything herein to the contrary, any Holder delivering to the Paying Agent the Fundamental Change Repurchase Notice contemplated by this Section 15.02 (b) shall have the right to withdraw, in whole or in part, such Fundamental Change Repurchase Notice at any time prior to the close of business on the Business Day immediately preceding the Fundamental Change Repurchase Date by delivery of a written notice of withdrawal to the Paying Agent (at the address specified in the applicable Fundamental Change Company Notice) in accordance with Section 15.03Section 15.03(a). The Paying Agent shall promptly notify the Company of the receipt by it of any Fundamental Change Repurchase Notice or written notice of withdrawal thereof.
(c) On or before the 20th calendar day after the occurrence of the effective date of a Fundamental Change, the Company shall provide to all Holders of Notes and the Trustee and the Paying Agent (in the case of a Paying Agent other than the Trustee) a notice (the “Fundamental Change Company Notice”) of the occurrence of the effective date of the Fundamental Change and of an offer to repurchase the Notes as a result thereof. In the case of Physical Notes, any such Fundamental Change Company Notice shall be by first class mail or, in the case of Global Notes, any such Fundamental Change Company Notice shall be delivered in accordance with the applicable procedures of the Depository. As promptly as reasonably practicable after providing any such Fundamental Change Company Notice, the Company shall publish a press release containing the information set forth in the Fundamental Change Company Notice, as the case may be, or publish such information on the Company’s website or through such other public medium as the Company may use at that time. Each Fundamental Change Company Notice shall specify:
(i) the events causing the Fundamental Change;
(ii) the date of the Fundamental Change;
(iii) the last date on which a Holder may exercise the repurchase right pursuant to this Article 15;
(iv) the Fundamental Change Repurchase Price;
(v) the Fundamental Change Repurchase Date;
(vi) the name and address of the Paying Agent and the Conversion Agent, if applicable;
(vii) if applicable, the Conversion Rate and any adjustments to the Conversion Rate;
(viii) if applicable, that the Fundamental Change is a Permitted Sale Transaction for purposes of Article 11 of this Indenture;
(ix) that the Notes with respect to which a Fundamental Change Repurchase Notice has been delivered by a Holder may be converted only if the Holder withdraws the Fundamental Change Repurchase Notice in accordance with the terms of this Indenture; and
(x) the procedures that Holders must follow to accept the offer from the Company to repurchase their Notes. No failure of the Company to give the foregoing notices and no defect therein shall limit the Holders’ repurchase rights or affect the validity of the proceedings for the repurchase of the Notes pursuant to this Section 15.02. At the Company’s request, the Trustee shall give any such Fundamental Change Company Notice in the Company’s name and at the Company’s expense; provided, however, that, in all cases, the text of such Fundamental Change Company Notice shall be prepared by the Company.
(d) Notwithstanding the foregoing, no Notes may be repurchased by the Company on any date at the option of the Holders upon a Fundamental Change, Change if the principal amount of the Notes has been accelerated, and such acceleration has not been rescinded, on or prior to such date (except in the case of an acceleration resulting from a Default by the Company in the payment of the Fundamental Change Repurchase Price with respect to such Notes). The Paying Agent will shall promptly return to the respective Holders thereof any Physical Definitive Notes held by it during the acceleration of the Notes (except in the case of an acceleration resulting from a Default by the Company in the payment of the Fundamental Change Repurchase Price with respect to such Notes), and or any instructions for book-entry transfer of the Notes in compliance with the applicable procedures of the Depository Depositary shall be deemed to have been cancelled, and, upon such return or cancellation, as the case may be, the Fundamental Change Repurchase Notice with respect thereto shall be deemed to have been withdrawn.
(e) Notwithstanding anything to the contrary herein, the Company will not be required to repurchase, or to make an offer to repurchase, the Notes upon a Fundamental Change if a third party makes such an offer in the same manner, at the same time and otherwise in compliance with the requirements for an offer made by the Company as set forth in this Indenture (including, without limitation, the requirement to comply with applicable securities laws as set forth in this Indenture), and such third party purchases all Notes properly surrendered, and not validly withdrawn, under its offer in the same manner, at the same time and otherwise in compliance with the requirements for an offer made by the Company as set forth in this Indenture (including the requirement to pay the Fundamental Change Repurchase Price on the later of the applicable Fundamental Change Repurchase Date and the time of book-entry transfer or delivery of the relevant Notes); provided that the Company will continue to be obligated to (x) deliver the applicable Fundamental Change Notice to the Holders (which Fundamental Change Notice will state that such third party will make such an offer to purchase the Notes) and, simultaneously with the delivery of such Fundamental Change Notice, to publish a notice containing such information on the Company’s website or through such other public medium as the Company may use at that time, (y) comply with applicable securities laws as set forth in this Indenture in connection with any such purchase and (z) pay the applicable Fundamental Change Repurchase Price on the later of the applicable Fundamental Change Repurchase Date and the time of book-entry transfer or delivery of the relevant notes in the event such third party fails to make such payment in such amount at such time.
Appears in 1 contract
Samples: Indenture (Silvercorp Metals Inc)
Offer to Repurchase Upon a Fundamental Change. (a) If Subject to Section 3.7(d) hereof, upon the occurrence of a Fundamental Change occurs at any time prior to Stated Maturity, each Holder may require the Maturity Company to repurchase the Notes on a date chosen by the Company in its sole discretion that is no less than 20 Business Days and no more than 35 Business Days (subject to extension to comply with applicable law) after the Company sends the Fundamental Change Repurchase Right Notice (the “Fundamental Change Repurchase Date”), and the Company shall be required to make an offer to repurchase on the Fundamental Change Repurchase Date, any or all Notes submitted for repurchase for cash all of the outstanding Notescash, or any portion of the initial principal amount thereof that a Holder determines to sell to the Company that is equal to $1,000 2,000 or an integral multiple of $1,000, on provided that the date (the “Fundamental Change Repurchase Date”) specified by the Company that principal amount of such security to remain outstanding is not less than 20 calendar days equal to $2,000 or more than 35 calendar days following the date an integral multiple of the Fundamental Change Company Notice $1,000, at a repurchase price equal to 100% of the aggregate principal amount thereof, thereof plus accrued and unpaid interest thereon (interest, if any) up to, to but excluding, not including the Fundamental Change Repurchase Date (the “Fundamental Change Repurchase Price”)Date, unless the such Fundamental Change Repurchase Date falls after a Regular Record Date but and on or prior to the corresponding Interest Payment Date to which such Regular Record Date relatesDate, in which case the Company shall instead pay the full amount of accrued and unpaid interest payable on such Interest Payment Date to Holders the Holder of record as of at the close of business such on the corresponding Regular Record Date, and . At least 20 Business Days prior to the anticipated Effective Date of the Fundamental Change Repurchase Price shall be equal (or if the Company does not have actual notice of a Fundamental Change 20 Business Days prior to 100% the Effective Date, as soon as the Company has actual notice of such Fundamental Change), the Company will provide to all Holders of the aggregate principal amount of Notes to be repurchased pursuant to this Article 15.
(b) Acceptance of Notes, the repurchase offer contained in the Fundamental Change Company Notice and resulting repurchases under this Section 15.02 shall be madeTrustee, at the option of the Holder thereof, upon:
(i) delivery to the Paying Agent, the Registrar and the Conversion Agent by a Holder of a duly completed notice (the “Fundamental Change Repurchase Notice”) in stating:
(1) if applicable, whether the form set forth in Attachment 2 Company will adjust the Conversion Rate pursuant to Section 6.5(e) hereof;
(2) the Form anticipated Effective Date of Note attached hereto as Exhibit A, if the Notes are Physical Notes, or in compliance with the Depository’s procedures for surrendering interests in Global Notes, if the Notes are Global Notes, in each case on or before the close of business on the Business Day immediately preceding the Fundamental Change Repurchase DateChange; and
(ii3) delivery of the Notes, if the Notes are Physical Notes, to the Paying Agent at any time after delivery of the Fundamental Change Repurchase Notice (together with all necessary endorsements for transfer) at the Corporate Trust Office of the Paying Agent, or book-entry transfer of the Notes, if the Notes are Global Notes, in compliance with the procedures of the Depository, in each case such delivery being a condition to receipt by the Holder of the Fundamental Change Repurchase Price therefor. The Fundamental Change Repurchase Notice in respect of any Notes to be repurchased shall state:
(i) in the case of Physical Notes, the certificate numbers of the Notes to be delivered for repurchase;
(ii) the portion of the principal amount of Notes to be repurchased, which must be $1,000 or an integral multiple thereof; and
(iii) that the Notes are to be repurchased by whether the Company pursuant to the applicable provisions of the Notes and this Indenture; provided, however, expects that if the Notes are Global Notes, the Fundamental Change Repurchase Notice must comply with appropriate Depository procedures. Notwithstanding anything herein to the contrary, any Holder delivering to the Paying Agent the Fundamental Change Repurchase Notice contemplated by this Section 15.02 shall Holders will have the right to withdraw, in whole or in part, such Fundamental Change Repurchase Notice at any time prior to the close of business on the Business Day immediately preceding the Fundamental Change Repurchase Date by delivery of a written notice of withdrawal to the Paying Agent (at the address specified in the applicable Fundamental Change Company Notice) in accordance with Section 15.03. The Paying Agent shall promptly notify require the Company of the receipt by it of any Fundamental Change Repurchase Notice or written notice of withdrawal thereofto repurchase their Notes as described in this Section 3.7.
(cb) On or before the 20th calendar day Trading Day after the occurrence of the effective date Effective Date of a Fundamental Change, the Company shall will provide to all Holders of the Notes and the Trustee Trustee, the Paying Agent, the Registrar and the Paying Conversion Agent (in the case of a Paying Agent other than the Trustee) a notice (the “Fundamental Change Company Notice”) of the occurrence of the effective date of the Fundamental Change and of an offer to the resulting repurchase right (the Notes as a result thereof. In the case of Physical Notes, any such “Fundamental Change Company Notice shall be by first class mail or, in the case of Global Notes, any such Fundamental Change Company Notice shall be delivered in accordance with the applicable procedures of the Depository. As promptly as reasonably practicable after providing any such Fundamental Change Company Repurchase Right Notice, the Company shall publish a press release containing the information set forth in the Fundamental Change Company Notice, as the case may be, or publish such information on the Company’s website or through such other public medium as the Company may use at that time”). Each Fundamental Change Company Repurchase Right Notice shall specifystate:
(i1) the events causing the Fundamental Change;
(ii2) if the date Company is required to adjust the Conversion Rate and related conversion obligation as described in Section 6.5(e) hereof pursuant to a Fundamental Change that falls under clause (2), (3) or (4) of the definition of Fundamental Change;
(iii) the last date on which a Holder may exercise the repurchase right pursuant to this Article 15;
(iv) the Fundamental Change Repurchase Price;
(v) the Fundamental Change Repurchase Date;
(vi) the name and address of the Paying Agent and the Conversion Agent, if applicable;
(vii) if applicable, the Conversion Rate and any adjustments to the Conversion Rate;
(viii3) the Effective Date, if applicable, that ;
(4) the last date on which a Holder may exercise such repurchase right;
(5) the Fundamental Change is a Permitted Sale Transaction for purposes of Article 11 of this Indenturerepurchase price;
(ix6) the Fundamental Change Repurchase Date;
(7) the name and address of the Paying Agent and the Conversion Agent;
(8) that the Notes with respect to which a the Fundamental Change Repurchase Right Notice has been delivered by a Holder given may be converted only if the Holder thereof withdraws the any Fundamental Change Repurchase Notice previously delivered by such Holder in accordance with the terms of this Indenture; and
(x9) the procedures that Holders must follow to accept the offer from require the Company to repurchase their Notes. No failure .
(c) A Holder may exercise its right specified in Section 3.7(a) upon delivery of a notice of repurchase (a “Fundamental Change Repurchase Notice”) in accordance with the Company requirements below delivered to give the foregoing notices and no defect therein shall limit Paying Agent at any time prior to 5:00 p.m., New York City time, on the Holders’ repurchase rights or affect second Business Day immediately preceding the validity of Fundamental Change Repurchase Date, stating:
(1) the proceedings for Applicable Procedures or, if such Holder holds Definitive Notes, the repurchase certificate numbers of the Notes pursuant which the Holder will deliver to this Section 15.02. At the Company’s request, the Trustee shall give any such Fundamental Change Company Notice in the Company’s name and at the Company’s expense; provided, however, that, in all cases, the text of such Fundamental Change Company Notice shall be prepared by the Company.repurchased;
(d2) Notwithstanding the foregoing, no Notes may be repurchased by the Company on any date at the option portion of the Holders upon a Fundamental Change, if the principal amount of the Notes has been acceleratedwhich the Holder will deliver to be repurchased, and which portion must be in a principal amount of $2,000 or an integral multiple of $1,000 in excess thereof; and
(3) that such acceleration has not been rescinded, on or prior Notes are to such date (except in the case of an acceleration resulting from a Default be purchased by the Company in the payment as of the Fundamental Change Repurchase Price with respect to such Notes). The Paying Agent will promptly return Date pursuant to the respective Holders thereof any Physical Notes held by it during the acceleration of terms and conditions specified in the Notes (except and in the case of an acceleration resulting from a Default by the Company in the payment of the Fundamental Change Repurchase Price with respect to such Notes), and any instructions for book-entry transfer of this Indenture. If the Notes are not in compliance with the procedures of the Depository shall be deemed to have been cancelled, and, upon such return or cancellation, as the case may becertificated form, the Fundamental Change Repurchase Notice must comply with respect thereto shall be deemed to have been withdrawn.
the Applicable Procedures. The delivery of such Notes (eeither through the surrender of Definitive Notes or through the delivery of beneficial interests in a Global Note in accordance with the Applicable Procedures) Notwithstanding anything to the contrary herein, the Company will not be required to repurchasePaying Agent with, or to make an offer to repurchaseat any time after delivery of, the Notes upon a Fundamental Change if a third party makes such an offer in the same manner, at the same time and otherwise in compliance with the requirements for an offer made by the Company as set forth in this Indenture (including, without limitation, the requirement to comply with applicable securities laws as set forth in this Indenture), and such third party purchases all Notes properly surrendered, and not validly withdrawn, under its offer in the same manner, at the same time and otherwise in compliance with the requirements for an offer made by the Company as set forth in this Indenture (including the requirement to pay the Fundamental Change Repurchase Price on Notice (together with all necessary endorsements) at the offices of the Paying Agent shall be a condition to the receipt by the Holder of payment therefor; provided, however, that such payment shall be so paid pursuant to this Section 3.7 only if the Notes so delivered to the Paying Agent shall conform in all respects to the description thereof in the related Fundamental Change Repurchase Notice. Any repurchase by the Company pursuant to the provisions of this Section 3.7 shall be consummated by the delivery of the consideration to be received by the Holder promptly following the later of the applicable Fundamental Change Repurchase Date and the time of delivery of the Notes. Unless the Company defaults in the payment for the Notes to be repurchased pursuant to this Section 3.7, and provided that the Company or a Subsidiary thereof is not serving as the Paying Agent and the Paying Agent holds money or securities sufficient to pay the repurchase price of such Notes on the Fundamental Change Repurchase Date, such Notes will cease to be outstanding and interest, if any, shall cease to accrue on the Notes or portions thereof delivered for repurchase on the Fundamental Change Repurchase Date (whether or not book-entry transfer or delivery of the relevant Notes is made or whether or not the Notes are delivered to the Paying Agent) and all other rights of the Holders of the Notes to be repurchased pursuant to this Section 3.7 shall terminate (other than the right to receive payment upon delivery or transfer of the Notes).
(d) The Company will comply with the requirements of Rule 13e-4 and Rule 14e-1 under the Exchange Act, including the filing of a Schedule TO if required, and will comply with the requirements of any other federal and state securities laws and regulations thereunder to the extent those laws and regulations are applicable in connection with the repurchase of the Notes by the Company as a result of a Fundamental Change. To the extent that the provisions of any securities laws or regulations conflict with the provisions of this Section 3.7, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under this Section 3.7 by virtue of such conflict.
(e) On or before the Fundamental Change Repurchase Date, the Company will, to the extent lawful:
(1) accept for payment all Notes or portions thereof properly tendered;
(2) deposit with the Paying Agent an amount equal to the payment in respect of all Notes or portions of Notes properly 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 of Notes being purchased by the Company in accordance with the terms of this Section 3.7. The Paying Agent will promptly mail to each Holder of Notes properly tendered the payment for such Notes, and the Trustee 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 new Note will be in a principal amount of $2,000 and integral multiples of $1,000 in excess thereof. Notwithstanding anything contained herein to the contrary, Holders of the Notes will not have the right to require the Company to repurchase any Notes pursuant to the occurrence of any of the events identified in clauses (2) or (3) of the definition of Fundamental Change (and the Company will continue not be required to be obligated to (x) deliver the applicable Fundamental Change Repurchase Right Notice incidental thereto), if at least 90% of the consideration paid for the Common Stock (excluding cash payments for fractional shares, cash payments made pursuant to the Holders (which dissenters’ appraisal rights and cash dividends) in a Fundamental Change Notice under clause (2) and/or clause (3) of the definition of Fundamental Change consists of shares of common stock traded on the NYSE or another U.S. national securities exchange or quoted on NASDAQ or another established automated over-the-counter trading market in the United States (or will state that such third party will make such an offer to purchase be so traded or quoted immediately following the Notesmerger or consolidation) and, simultaneously with the delivery as a result of such Fundamental Change NoticeChange, to publish the Notes become convertible into such shares of such common stock.
(f) Upon receipt by the Paying Agent of a notice containing such information on the Company’s website or through such other public medium as the Company may use at that time, (y) comply with applicable securities laws as set forth in this Indenture in connection with any such purchase and (z) pay the applicable Fundamental Change Repurchase Price Notice specified in Section 3.7(c) hereof, the Holder of the Notes in respect of which such Fundamental Change Repurchase Notice was given shall (unless such Fundamental Change Repurchase Notice is withdrawn as specified in Section 3.7(g) hereof) thereafter be entitled to receive solely the payment described in Section 3.7(a) hereof with respect to such Notes. Such payment shall be paid to such Holder, subject to the Paying Agent holding money or securities sufficient to make such payment on the Fundamental Change Repurchase Date, promptly following the later of (a) the applicable Fundamental Change Repurchase Date (provided the conditions in Section 3.7(c) have been satisfied) and (b) the time of book-entry transfer or the delivery of such Notes to the relevant notes Paying Agent by the Holder thereof in the event manner required by Section 3.7(c). Notes in respect of which a Fundamental Change Repurchase Notice has been given by the Holder thereof may not be converted pursuant to Article VI on or after the date of the delivery of such third party fails Fundamental Change Repurchase Notice unless such Fundamental Change Repurchase Notice has first been validly withdrawn as specified in Section 3.7(g) hereof.
(g) Notwithstanding anything contained herein to make the contrary, any Holder that has delivered to the Paying Agent the Fundamental Change Repurchase Notice contemplated by Section 3.7(c) hereof shall have the right to withdraw such payment Fundamental Change Repurchase Notice, in whole or in part, by means of a written notice of withdrawal delivered to the Paying Agent at any time prior to 5:00 p.m., New York City time, on the second Business Day immediately preceding the Fundamental Change Repurchase Date, specifying:
(1) the principal amount of the Notes with respect to which such amount at notice of withdrawal is being submitted;
(2) the certificate numbers of the Definitive Notes, if any, in respect of which such timenotice of withdrawal is being submitted; and
(3) the principal amount, if any, of such Notes that remain subject to the original Fundamental Change Repurchase Notice and which have been or will be delivered for repurchase by the Company. If the Notes with respect to which the notice of withdrawal is being submitted are not in certificated form, the notice of withdrawal must comply with the Applicable Procedures.
(h) The Trustee shall be under no obligation to ascertain the occurrence of a Fundamental Change or to give notice to the Holders with respect thereto. The Trustee may conclusively assume, in the absence of written notice to the contrary from the Company, that no Fundamental Change has occurred.
Appears in 1 contract
Samples: Indenture (Ciena Corp)
Offer to Repurchase Upon a Fundamental Change. (a) If Upon the occurrence of a Fundamental Change occurs at any time prior to (i) from the Maturity Datedate hereof until October 14, 2013, the Company shall be required to make an offer to each Holder to repurchase for cash all or any part of the outstanding NotesUnits at the prices (expressed as percentages of the sum of principal amount, accrued but unpaid Payment-in-Kind Interest, and default interest that has theretofore been paid in Payment-in-Kind Interest) set forth for the applicable period in Section 3.07 hereof plus accrued and unpaid cash interest, and (ii) at all other times, the Company shall make an offer to each Holder to repurchase all or any portion of the principal amount thereof that a Holder determines to sell to the Company that is part (equal to $1,000 500 or an integral multiple of $1,000500 in excess thereof; provided that PIK Notes may be repurchased in denominations of $1.00 or an integral multiple of $1.00 in excess thereof) of that Holder’s Notes (such offer in the foregoing clause (i) or (ii), on the date (the a “Fundamental Change Repurchase DateOffer”) specified by the Company that is not less than 20 calendar days or more than 35 calendar days following the date of the Fundamental Change Company Notice at a repurchase purchase price equal to 100% of the aggregate principal amount thereof, plus accrued and unpaid interest thereon (if any) up to, but excluding, the Fundamental Change Repurchase Date (the “Fundamental Change Repurchase Price”), unless the Fundamental Change Repurchase Date falls after a Regular Record Date but on or prior to the Interest Payment Date to which such Regular Record Date relates, in which case the Company shall instead pay the full amount of accrued and unpaid interest to Holders of record as of the close of business such Regular Record Date, and the Fundamental Change Repurchase Price shall be cash equal to 100% of the aggregate principal amount of Notes to be repurchased, plus accrued and unpaid cash interest and Payment-In-Kind Interest, if any, on the Notes repurchased pursuant to this Article 15.
(b) Acceptance of the repurchase offer contained in the Fundamental Change Company Notice and resulting repurchases under this Section 15.02 shall be made, at the option of the Holder thereof, upon:
(i) delivery to the Paying Agent by a Holder date of a duly completed notice purchase, subject to the rights of Holders of Notes on the relevant record date to receive interest due on the relevant interest payment date (the “Fundamental Change Repurchase NoticePayment”) in ). Within ten days following any Fundamental Change, the form set forth in Attachment 2 Company will mail a notice to each Holder describing the Form of Note attached hereto as Exhibit A, if the Notes are Physical Notes, transaction or in compliance with the Depository’s procedures for surrendering interests in Global Notes, if the Notes are Global Notes, in each case on or before the close of business on the Business Day immediately preceding transactions that constitute the Fundamental Change Repurchase Date; andand stating:
(ii1) delivery that the Fundamental Change Offer is being made pursuant to this Section 4.15 and that all Notes tendered will be accepted for payment;
(2) the purchase price and the purchase date, which shall be no earlier than 30 days and no later than 60 days from the date such notice is mailed (the “Fundamental Change Payment Date”);
(3) that any Note not tendered will continue to accrue interest;
(4) that, unless the Company defaults in the payment of the Fundamental Change Payment, all Notes accepted for payment pursuant to the Fundamental Change Offer will cease to accrue interest after the Fundamental Change Payment Date;
(5) that Holders electing to have any Notes purchased pursuant to a Fundamental Change Offer will be required to surrender the Notes, if with the form entitled “Option of Holder to Elect Purchase” attached to the Notes are Physical Notescompleted, or transfer by book-entry transfer, to the Paying Agent at any time after delivery of the Fundamental Change Repurchase Notice (together with all necessary endorsements for transfer) at the Corporate Trust Office of the Paying Agent, or book-entry transfer of the Notes, if the Notes are Global Notes, in compliance with the procedures of the Depository, in each case such delivery being a condition to receipt by the Holder of the Fundamental Change Repurchase Price therefor. The Fundamental Change Repurchase Notice in respect of any Notes to be repurchased shall state:
(i) address specified in the case of Physical Notes, the certificate numbers of the Notes to be delivered for repurchase;
(ii) the portion of the principal amount of Notes to be repurchased, which must be $1,000 or an integral multiple thereof; and
(iii) that the Notes are to be repurchased by the Company pursuant to the applicable provisions of the Notes and this Indenture; provided, however, that if the Notes are Global Notes, the Fundamental Change Repurchase Notice must comply with appropriate Depository procedures. Notwithstanding anything herein to the contrary, any Holder delivering to the Paying Agent the Fundamental Change Repurchase Notice contemplated by this Section 15.02 shall have the right to withdraw, in whole or in part, such Fundamental Change Repurchase Notice at any time notice prior to the close of business on the third Business Day immediately preceding the Fundamental Change Repurchase Date by delivery of a written notice of withdrawal Payment Date;
(6) that Holders will be entitled to withdraw their election if the Paying Agent (at receives, not later than the address specified in close of business on the applicable second Business Day preceding the Fundamental Change Company Notice) in accordance with Section 15.03. The Paying Agent shall promptly notify Payment Date, facsimile transmission or letter setting forth the Company name of the receipt by it Holder, the principal amount of any Fundamental Change Repurchase Notice or written notice of withdrawal thereof.Notes delivered for purchase, and a statement that such Holder is withdrawing his election to have the Notes purchased; and
(c7) On or before that Holders whose Notes are being purchased only in part will be issued new Notes equal in principal amount to the 20th calendar day after the occurrence unpurchased portion of the effective date Notes surrendered, which unpurchased portion must be equal to $500 in principal amount or an integral multiple of a Fundamental Change, the Company shall provide to all Holders of Notes and the Trustee and the Paying Agent ($500 in excess thereof; provided that in the case of a Paying Agent PIK Notes, such portion may be equal to $1.00 or an integral multiple of $1.00 in excess thereof. The Company will comply with the requirements of Rule 14e-1 under the Exchange Act and any other than securities laws and regulations thereunder to the Trustee) a notice (extent those laws and regulations are applicable in connection with the “Fundamental Change Company Notice”) repurchase of the occurrence of the effective date of the Fundamental Change and of an offer to repurchase the Notes as a result thereofof a Fundamental Change. In To the case extent that the provisions of Physical Notesany securities laws or regulations conflict with the provisions of this Section 4.15, any such Fundamental Change the Company Notice shall be by first class mail or, in the case of Global Notes, any such Fundamental Change Company Notice shall be delivered in accordance will comply with the applicable procedures securities laws and regulations and will not be deemed to have breached its obligations under this Section 4.15 by virtue of such compliance.
(b) On the Depository. As promptly as reasonably practicable after providing any such Fundamental Change Company NoticePayment Date, the Company shall publish a press release containing will, to the information set forth in extent lawful:
(1) accept for payment all Notes or portions of Notes properly tendered pursuant to the Fundamental Change Company Notice, as the case may be, or publish such information on the Company’s website or through such other public medium as the Company may use at that time. Each Fundamental Change Company Notice shall specify:
(i) the events causing the Fundamental ChangeOffer;
(ii2) deposit with the date of the Fundamental Change;
(iii) the last date on which a Holder may exercise the repurchase right pursuant Paying Agent an amount in same day funds in United States dollars equal to this Article 15;
(iv) the Fundamental Change Repurchase Price;
(v) the Fundamental Change Repurchase Date;
(vi) the name and address Payment in respect of the Paying Agent and the Conversion Agent, if applicable;
(vii) if applicable, the Conversion Rate and any adjustments to the Conversion Rate;
(viii) if applicable, that the Fundamental Change is a Permitted Sale Transaction for purposes all Notes or portions of Article 11 of this Indenture;
(ix) that the Notes with respect to which a Fundamental Change Repurchase Notice has been delivered by a Holder may be converted only if the Holder withdraws the Fundamental Change Repurchase Notice in accordance with the terms of this Indentureproperly tendered; and
(x3) deliver or cause to be delivered to the procedures that Holders must follow to accept the offer from the Company to repurchase their Notes. No failure of the Company to give the foregoing notices and no defect therein shall limit the Holders’ repurchase rights or affect the validity of the proceedings for the repurchase of Trustee the Notes pursuant to this Section 15.02. At properly accepted together with an Officers’ Certificate stating the Company’s request, the Trustee shall give any such Fundamental Change Company Notice in the Company’s name and at the Company’s expense; provided, however, that, in all cases, the text aggregate principal amount of such Fundamental Change Company Notice shall be prepared Notes or portions of Notes being purchased by the Company.
(d) Notwithstanding the foregoing, no Notes may be repurchased by the Company on any date at the option of the Holders upon a Fundamental Change, if the principal amount of the Notes has been accelerated, and such acceleration has not been rescinded, on or prior to such date (except in the case of an acceleration resulting from a Default by the Company in the payment of the Fundamental Change Repurchase Price with respect to such Notes). The Paying Agent will promptly return (but in any case not later than five days after the Fundamental Change Payment Date) mail to each Holder of Notes properly tendered the respective Holders thereof Fundamental Change Payment for such Notes, and upon receipt of an Authentication Order, the Trustee 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 Physical Notes held by it during the acceleration unpurchased portion of the Notes (except in surrendered, if any. The Company will publicly announce the case of an acceleration resulting from a Default by the Company in the payment results of the Fundamental Change Repurchase Price with respect to such Notes), and any instructions for book-entry transfer of the Notes in compliance with the procedures of the Depository shall be deemed to have been cancelled, and, upon such return Offer on or cancellation, as the case may be, soon as practicable after the Fundamental Change Repurchase Notice with respect thereto shall be deemed to have been withdrawnPayment Date.
(ec) Notwithstanding anything to the contrary hereinin this Section 4.15, the Company will not be required to repurchase, or to make an offer to repurchase, the Notes a Fundamental Change Offer upon a Fundamental Change if (1) a third party makes such an offer the Fundamental Change Offer in the same manner, at the same time times and otherwise in compliance with the requirements for an offer made by the Company as set forth in this Indenture (including, without limitation, the requirement to comply with applicable securities laws as set forth in this Indenture), Section 4.15 and such third party purchases all Notes properly surrendered, tendered and not validly withdrawn, withdrawn under its offer in the same manner, at the same time and otherwise in compliance with the requirements for an offer made by the Company as set forth in this Indenture (including the requirement to pay the Fundamental Change Repurchase Price on the later Offer, or (2) notice of redemption has been given pursuant to Section 3.07 hereof, unless and until there is a default in payment of the applicable redemption price.
(d) Notwithstanding anything to the contrary contained herein, a Fundamental Change Repurchase Date and Offer may be commenced no more than 30 Business Days in advance of a Fundamental Change, conditioned upon the time of book-entry transfer or delivery of the relevant Notes); provided that the Company will continue to be obligated to (x) deliver the applicable Fundamental Change Notice to the Holders (which Fundamental Change Notice will state that such third party will make such an offer to purchase the Notes) and, simultaneously with the delivery consummation of such Fundamental Change NoticeChange, to publish if a notice containing such information on definitive agreement is in place for the Company’s website or through such other public medium as the Company may use at that time, (y) comply with applicable securities laws as set forth in this Indenture in connection with any such purchase and (z) pay the applicable Fundamental Change Repurchase Price on at the later of time the applicable Fundamental Change Repurchase Date and the time of book-entry transfer or delivery of the relevant notes in the event such third party fails to make such payment in such amount at such timeOffer is made.
Appears in 1 contract
Samples: Indenture (WHX Corp)
