Offer to Repurchase Upon Change in Control. (a) Upon the occurrence of a Change in Control, the Company shall make an offer (a “Change in Control Offer”) to each Holder to repurchase all or any part (equal to $1,000 or an integral multiple thereof) of each Holder’s Notes at a purchase price equal to 100% of the aggregate principal amount thereof plus accrued and unpaid interest to, but excluding, the date of purchase (the “Change in Control Payment”). Within 10 Business Days following any Change in Control, the Company shall mail a notice to the Trustee and to each Holder stating: (1) that the Change in Control Offer is being made pursuant to this Section 6.09 and that all Notes tendered will be accepted for payment; (2) the purchase price and the purchase date, which shall be no later than 30 Business Days after the occurrence of a Change in Control (the “Change in Control Payment Date”); (3) that any Note not tendered will continue to accrue interest; (4) the name and address of each Paying Agent and Conversion Agent; (5) the Conversion Price and any adjustments thereto and information concerning the Holder’s right to convert the Notes; (6) that, unless the Company defaults in the payment of the Change in Control Payment, all Notes accepted for payment pursuant to the Change in Control Offer shall cease to accrue interest after the Change in Control Payment Date; (7) that Holders electing to have any Notes purchased pursuant to a Change in Control Offer will be required to surrender the Notes, with the form entitled “Option of Holder to Elect Purchase” on the reverse of the Notes completed, to the Paying Agent at the address specified in the notice prior to the close of business on the Business Day preceding the Change in Control Payment Date; (8) that Holders will be entitled to withdraw their election if the Paying Agent receives, not later than the close of business on the Business Day preceding the Change in Control Payment Date, facsimile transmission, letter or any other written form setting forth the name of the Holder, the principal amount of Notes delivered for purchase, and a statement that such Holder is withdrawing its Change in Control Payment Notice; (9) that Notes as to which a Change in Control Payment Notice has been given may be converted into Shares of Common Stock pursuant to this Section 6.09 only to the extent that any Change in Control Payment Notice given by the Holder has been withdrawn in accordance with the terms of this Indenture; and (10) that Holders whose Notes are being purchased only in part will be issued new Notes equal in principal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 $1,000 in principal amount or an integral multiple thereof. The Company shall comply with the requirements of Rule 13e-4 and Rule 14e-1 under the Exchange Act, file a Schedule TO or any successor or similar schedule, if required, under the Exchange Act and comply with any other federal, state and other securities laws and regulations thereunder to the extent such laws and regulations are applicable in connection with the repurchase of Notes in connection with a Change in Control. A “Change in Control” shall be deemed to have occurred if any of the following occurs after the date hereof: (i) any “person” or “group” (as such terms are defined below) is or becomes the “beneficial owner” (as defined below), directly or indirectly of shares of Voting Stock of the Company representing 50% or more of the total voting power of all outstanding classes of Voting Stock of the Company or has the power, directly or indirectly, to elect a majority of the members of the Board of Directors of the Company; (ii) during any consecutive two-year period, individuals who at the beginning of that two-year period constituted the Company’s Board of Directors (together with any new trustees whose election to the Company’s Board of Directors, or whose nomination for election by the Company’s shareholders, was approved by a vote of a majority of the trustees who were either trustees at the beginning of such period or whose election or nomination for election was approved by the Board of Directors or nominating committee thereof, the majority of the members of which meet the above criteria) cease for any reason to constitute a majority of the Company’s Board of Directors then in office; (iii) the Company consolidates with, or merges with or into, another Person or the Company sells, assigns, conveys, transfers, leases or otherwise disposes of all or substantially all of the assets of the Company, or any Person consolidates with, or merges with or into, the Company, in any such event other than pursuant to a transaction in which the Persons that “beneficially owned” (as defined below), directly or indirectly, shares of Voting Stock of the Company immediately prior to such transaction “beneficially own” (as defined below), directly or indirectly, shares of Voting Stock of the Company representing at least a majority of the total voting power of all outstanding classes of Voting Stock of the surviving or transferee Person; or (iv) holders of the Capital Stock of the Company approve any plan or proposal for the liquidation or dissolution of the Company (whether or not otherwise in compliance with this Indenture). A Change in Control shall not be deemed to have occurred if: (i) the Closing Sale Price of Shares of Common Stock for any five Trading Days during the ten Trading Days immediately preceding the consummation of the Change in Control is at least equal to 105% of the Conversion Price in effect on such day; or (ii) in the case of a merger or consolidation, all of the consideration (excluding cash payments for fractional shares and cash payments pursuant to dissenters’ appraisal rights) in the merger or consolidation constituting the Change in Control consists of common stock traded on a United States national securities exchange or on the Toronto Stock Exchange, or any successor thereto (or which will be so traded or quoted when issued or exchanged in connection with such change in control) and as a result of such transaction or transactions the Notes become convertible solely into such common stock. For the purpose of the definition of “Change in Control”, (i) “person” and “group” have the meanings given such terms under Section 13(d) and 14(d) of the Exchange Act or any successor provision to either of the foregoing, and the term “group” includes any group acting for the purpose of acquiring, holding or disposing of securities within the meaning of Rule 13d-5(b)(1) under the Exchange Act or any successor provision thereto, (ii) a “beneficial owner” shall be determined in accordance with Rule 13d-3 under the Exchange Act, as in effect on the date of this Indenture, except that the number of shares of Voting Stock of the Company shall be deemed to include, in addition to all outstanding shares of Voting Stock of the Company and Unissued Shares (as defined below) deemed to be held by the “person” or “group” (as such terms are defined above) or other Person with respect to which the Change in Control determination is
Appears in 2 contracts
Samples: Exchange Agreement (Mercer International Inc.), Exchange Agreement (Mercer International Inc.)
Offer to Repurchase Upon Change in Control. Unless otherwise specified in a Board Resolution or supplemental indenture with respect to a series of Securities:
(a) Upon the occurrence of a Change in Control, the Company shall make an offer (a “"Change in Control Offer”") to each Holder to repurchase all or any part (equal to $1,000 or an integral multiple thereof) of each Holder’s Notes 's Securities at a purchase price equal to 100% of the aggregate principal amount thereof plus accrued and unpaid interest interest, if any, to, but excluding, the date of purchase (the “"Change in Control Payment”"). Within Unless otherwise set forth in a supplemental indenture, within 10 Business Days following any a Change in Control, the Company shall mail a notice to the Trustee and to each Holder stating:
: (1) that the Change in Control Offer is being made pursuant to this Section 6.09 10.07 and that all Notes Securities tendered will be accepted for payment;
; (2) the purchase price and the purchase date, which shall be no later than 30 Business Days after the occurrence of a Change in Control (the “"Change in Control Payment Date”");
; (3) that any Note Security not tendered will continue to accrue interest;
; (4) the name and address of each Paying Agent and Conversion Agent;
, if any; (5) if applicable, the Conversion Price and any adjustments thereto and information concerning the Holder’s 's right to convert the Notes;
Securities; (6) if applicable, that Securities as to which a Change in Control Payment Notice has been given may be converted into Class A Subordinate Voting Stock pursuant to this Section 10.07 only to the extent that the Change in Control Payment Notice has been withdrawn in accordance with the terms of this Indenture; (7) that, unless the Company defaults in the payment of the Change in Control Payment, all Notes Securities accepted for payment pursuant to the Change in Control Offer shall cease to accrue interest after the Change in Control Payment Date;
; (7) 8) that Holders electing to have any Notes Securities purchased pursuant to a Change in Control Offer will be required to surrender the NotesSecurities, with the form entitled “"Option of Holder to Elect Purchase” " on the reverse of the Notes Security completed, to the Paying Agent at the address specified in the notice prior to the close of business on the Business Day preceding the Change in Control Payment Date;
; (8) 9) that Holders will be entitled to withdraw their election if the Paying Agent receives, not later than the close of business on the Business Day preceding the Change in Control Payment Date, facsimile transmission, letter or any other written form setting forth the name of the Holder, the principal amount of Notes Securities delivered for purchase, and a statement that such Holder is withdrawing its Change in Control Payment Notice;
(9) that Notes as election to which a Change in Control Payment Notice has been given may be converted into Shares of Common Stock pursuant to this Section 6.09 only to have the extent that any Change in Control Payment Notice given by the Holder has been withdrawn in accordance with the terms of this IndentureSecurities purchased; and
and (10) that Holders whose Notes Securities are being purchased only in part will be issued new Notes Securities equal in principal amount to the unpurchased portion of the Notes Securities surrendered, which unpurchased portion must be equal to $1,000 in principal amount or an integral multiple thereof. The Company shall comply with the requirements of Rule 13e-4 and Rule 14e-1 under the Exchange Act, file a Schedule TO or any successor or similar schedule, if required, under the Exchange Act and comply with any other federal, federal and state and other securities laws and regulations thereunder to the extent such laws and regulations are applicable in connection with the repurchase of Notes Securities in connection with a Change in Control. A “"Change in Control” " shall be deemed to have occurred if any of the following occurs after the date hereof:
(i) any “"person” " or “"group” " (as such terms are defined below) is or becomes the “"beneficial owner” " (as defined below), directly or indirectly of shares of Voting Stock of the Company representing 50% or more of the total voting power of all outstanding classes of Voting Stock of the Company or has the power, directly or indirectly, to elect a majority of the members of the Board of Directors of the Company;; or
(ii) during any consecutive two-year period, individuals who at the beginning of that two-year period constituted the Company’s Board of Directors (together with any new trustees whose election to the Company’s Board of Directors, or whose nomination for election by the Company’s shareholders, was approved by a vote of a majority of the trustees who were either trustees at the beginning of such period or whose election or nomination for election was approved by the Board of Directors or nominating committee thereof, the majority of the members of which meet the above criteria) cease for any reason to constitute a majority of the Company’s Board of Directors then in office;
(iii) the Company consolidates with, or merges with or into, another Person or the Company sells, assigns, conveys, transfers, leases or otherwise disposes of all or substantially all of the assets of the Company, or any Person consolidates with, or merges with or into, the Company, in any such event other than pursuant to a transaction in which the Persons that “"beneficially owned” " (as defined below), directly or indirectly, shares of Voting Stock of the Company immediately prior to such transaction “"beneficially own” " (as defined below), directly or indirectly, shares of Voting Stock of the Company representing at least a majority of the total voting power of all outstanding classes of Voting Stock of the surviving or transferee Person; or
(iviii) holders of the Capital Stock of the Company approve any plan or proposal for the liquidation or dissolution of the Company (whether or not otherwise in compliance with this Indenture). A Change in Control shall not be deemed to have occurred if:
(i) the Closing Sale Price of Shares of Common Stock for any five Trading Days during the ten Trading Days immediately preceding the consummation of the Change in Control is at least equal to 105% of the Conversion Price in effect on such day; or
(ii) in the case of a merger or consolidation, all of the consideration (excluding cash payments for fractional shares and cash payments pursuant to dissenters’ appraisal rights) in the merger or consolidation constituting the Change in Control consists of common stock traded on a United States national securities exchange or on the Toronto Stock Exchange, or any successor thereto (or which will be so traded or quoted when issued or exchanged in connection with such change in control) and as a result of such transaction or transactions the Notes become convertible solely into such common stock. For the purpose of the definition of “Change in Control”, (i) “person” and “group” have the meanings given such terms under Section 13(d) and 14(d) of the Exchange Act or any successor provision to either of the foregoing, and the term “group” includes any group acting for the purpose of acquiring, holding or disposing of securities within the meaning of Rule 13d-5(b)(1) under the Exchange Act or any successor provision thereto, (ii) a “beneficial owner” shall be determined in accordance with Rule 13d-3 under the Exchange Act, as in effect on the date of this Indenture, except that the number of shares of Voting Stock of the Company shall be deemed to include, in addition to all outstanding shares of Voting Stock of the Company and Unissued Shares (as defined below) deemed to be held by the “person” or “group” (as such terms are defined above) or other Person with respect to which the Change in Control determination is.
Appears in 2 contracts
Samples: Senior Indenture (Magna Entertainment Corp), Subordinated Indenture (Magna Entertainment Corp)
Offer to Repurchase Upon Change in Control. (a) Upon the occurrence of a Change in Control, the Company shall make an offer (a “"Change in Control Offer”") to each Holder to repurchase all or any part (equal to $1,000 or an integral multiple thereof) of each Holder’s 's Notes at a purchase price equal to 100% of the aggregate principal amount thereof plus accrued and unpaid interest and Additional Interest thereon, if any, to, but excluding, the date of purchase (the “"Change in Control Payment”"). Within 10 Business Days following any Change in Control, the Company shall mail a notice to the Trustee and to each Holder stating:
(1) that the Change in Control Offer is being made pursuant to this Section 6.09 and that all Notes tendered will be accepted for payment;
(2) the purchase price and the purchase date, which shall be no later than 30 Business Days after the occurrence of a Change in Control (the “"Change in Control Payment Date”");
(3) that any Note not tendered will continue to accrue interest;
(4) the name and address of each Paying Agent and Conversion Agent;
(5) the Conversion Price and any adjustments thereto and information concerning the Holder’s 's right to convert the Notes;
(6) that, unless the Company defaults in the payment of the Change in Control Payment, all Notes accepted for payment pursuant to the Change in Control Offer shall cease to accrue interest after the Change in Control Payment Date;
(7) that Holders electing to have any Notes purchased pursuant to a Change in Control Offer will be required to surrender the Notes, with the form entitled “"Option of Holder to Elect Purchase” " on the reverse of the Notes completed, to the Paying Agent at the address specified in the notice prior to the close of business on the Business Day preceding the Change in Control Payment Date;
(8) that Holders will be entitled to withdraw their election if the Paying Agent receives, not later than the close of business on the Business Day preceding the Change in Control Payment Date, facsimile transmission, letter or any other written form setting forth the name of the Holder, the principal amount of Notes delivered for purchase, and a statement that such Holder is withdrawing its Change in of Control Payment Notice;
(9) that Notes as to which a Change in Control Payment Notice has been given may be converted into Shares of Common Stock Beneficial Interest pursuant to this Section 6.09 only to the extent that any Change in Control Payment Notice given by the Holder has been withdrawn in accordance with the terms of this Indenture; and
(10) 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 $1,000 in principal amount or an integral multiple thereof. The Company shall comply with the requirements of Rule 13e-4 and Rule 14e-1 under the Exchange Act, file a Schedule TO or any successor or similar schedule, if required, under the Exchange Act and comply with any other federal, state and other securities laws and regulations thereunder to the extent such laws and regulations are applicable in connection with the repurchase of Notes in connection with a Change in Control. A “"Change in Control” " shall be deemed to have occurred if any of the following occurs after the date hereof:
(i) any “"person” " or “"group” " (as such terms are defined below) is or becomes the “"beneficial owner” " (as defined below), directly or indirectly of shares of Voting Stock of the Company representing 50% or more of the total voting power of all outstanding classes of Voting Stock of the Company or has the power, directly or indirectly, to elect a majority of the members of the Board of Directors Trustees of the Company;
(ii) during any consecutive two-year period, individuals who at the beginning of that two-year period constituted the Company’s 's Board of Directors Trustees (together with any new trustees whose election to the Company’s 's Board of DirectorsTrustees, or whose nomination for election by the Company’s 's shareholders, was approved by a vote of a majority of the trustees who were either trustees at the beginning of such period or whose election or nomination for election was approved by the Board of Directors Trustees or nominating committee thereof, the majority of the members of which meet the above criteria) cease for any reason to constitute a majority of the Company’s 's Board of Directors Trustees then in office;
(iii) the Company consolidates with, or merges with or into, another Person or the Company sells, assigns, conveys, transfers, leases or otherwise disposes of all or substantially all of the assets of the Company, or any Person consolidates with, or merges with or into, the Company, in any such event other than pursuant to a transaction in which the Persons that “"beneficially owned” " (as defined below), directly or indirectly, shares of Voting Stock of the Company immediately prior to such transaction “"beneficially own” " (as defined below), directly or indirectly, shares of Voting Stock of the Company representing at least a majority of the total voting power of all outstanding classes of Voting Stock of the surviving or transferee Person; or
(iv) holders of the Capital Stock of the Company approve any plan or proposal for the liquidation or dissolution of the Company (whether or not otherwise in compliance with this Indenture). A Change in Control shall not be deemed to have occurred if:
(i) the Closing Sale Price of Shares of Common Stock Beneficial Interest for any five Trading Days during the ten Trading Days immediately preceding the consummation of the Change in Control is at least equal to 105% of the Conversion Price in effect on such day; or
(ii) in the case of a merger or consolidation, all of the consideration (excluding cash payments for fractional shares and cash payments pursuant to dissenters’ ' appraisal rights) in the merger or consolidation constituting the Change in Control consists of common stock traded on a United States national securities exchange exchange, quoted on the Nasdaq National Market or traded on the Toronto Stock Exchange, or any successor thereto (or which will be so traded or quoted when issued or exchanged in connection with such change in control) and as a result of such transaction or transactions the Notes become convertible solely into such common stock. For the purpose of the definition of “Change in Control”, (i) “person” and “group” have the meanings given such terms under Section 13(d) and 14(d) of the Exchange Act or any successor provision to either of the foregoing, and the term “group” includes any group acting for the purpose of acquiring, holding or disposing of securities within the meaning of Rule 13d-5(b)(1) under the Exchange Act or any successor provision thereto, (ii) a “beneficial owner” shall be determined in accordance with Rule 13d-3 under the Exchange Act, as in effect on the date of this Indenture, except that the number of shares of Voting Stock of the Company shall be deemed to include, in addition to all outstanding shares of Voting Stock of the Company and Unissued Shares (as defined below) deemed to be held by the “person” or “group” (as such terms are defined above) or other Person with respect to which the Change in Control determination is.
Appears in 1 contract
Samples: Indenture (Mercer International Inc)
Offer to Repurchase Upon Change in Control. (a) Upon the occurrence of If a Change in ControlControl occurs, each Lender shall have the Company shall make right to require the Borrower to repurchase all (but not less than all) of that Lender's Loans pursuant to an offer by the Borrower (a “"Change in Control Offer”) to each Holder to repurchase all or any part (equal to $1,000 or an integral multiple thereof) of each Holder’s Notes at a purchase price equal to 100% of the aggregate principal amount thereof plus accrued and unpaid interest to, but excluding, the date of purchase (the “Change in Control Payment”"). Within 10 two Business Days following any Change in Control, the Company Borrower shall mail a give written notice to each Lender describing the Trustee transaction or transactions that constitute the Change in Control and offering to repurchase the Loans on the date specified in such notice (the "Change in Control Payment Date"), which shall be no earlier than five Business Days and no later than ten Business Days after the date such notice is given. In the Change in Control Offer, the Borrower shall offer payment to each Holder stating:Lender (a "Change in Control Payment") in cash equal to 101% of the aggregate principal amount of that Lender's Loans, plus accrued and unpaid interest thereon to the date of repurchase.
(1b) Each notice of a Change in Control Offer (i) must specify the amount of the Change in Control Payment offered and the Change in Control Payment Date; (ii) must provide that the Change in Control Offer is being made pursuant to this Section 6.09 and that all Notes tendered will be accepted for payment;
(2) remain open until the purchase price and the purchase date, which shall be no later than 30 second Business Days after the occurrence of a Change in Control (the “Change in Control Payment Date”);
(3) that any Note not tendered will continue to accrue interest;
(4) the name and address of each Paying Agent and Conversion Agent;
(5) the Conversion Price and any adjustments thereto and information concerning the Holder’s right to convert the Notes;
(6) that, unless the Company defaults in the payment of the Change in Control Payment, all Notes accepted for payment pursuant to the Change in Control Offer shall cease to accrue interest after Day preceding the Change in Control Payment Date;
(7) Date and that Holders electing to have any Notes purchased pursuant to a acceptance of such Change in Control Offer will be required to surrender remain revocable by each Lender until the Notes, with the form entitled “Option of Holder to Elect Purchase” on the reverse of the Notes completed, to the Paying Agent at the address specified in the notice prior to the close of business on the second Business Day preceding the Change in Control Payment Date;; and (iii) must contain all instructions and materials necessary to enable each Lender to tender its Loans pursuant to the Change in Control Offer.
(8) that Holders will be entitled to withdraw their election if the Paying Agent receives, not later than the close of business c) By 11:00 a.m. New York Time on the Business Day preceding the Change in Control Payment Date, facsimile transmission, letter or any other written form setting forth the name of Borrower shall (i) accept for payment all Loans tendered pursuant to the Holder, the principal amount of Notes delivered for purchaseChange in Control Offer, and a statement that such Holder is withdrawing its (ii) deposit with the Administrative Agent an amount equal to the Change in Control Payment Notice;
(9) in respect of all Loans so tendered. The Administrative Agent shall promptly transfer to each Lender that Notes as to which a has tendered Loans the Change in Control Payment Notice has been given may be converted into Shares of Common Stock pursuant to this Section 6.09 only to the extent that any Change in Control Payment Notice given by the Holder has been withdrawn in accordance with the terms of this Indenture; andfor such Loans.
(10d) In the event that Holders whose Notes are being purchased only in part will be issued new Notes equal in principal amount the Borrower fails to the unpurchased portion make a Change of the Notes surrenderedControl offer, which unpurchased portion must be equal or to $1,000 in principal amount or an integral multiple thereof. The Company shall comply with the requirements of Rule 13e-4 and Rule 14e-1 under the Exchange Act, file a Schedule TO or any successor or similar schedule, if required, under the Exchange Act and comply with any other federal, state and other securities laws and regulations thereunder to the extent such laws and regulations are applicable in connection with consummate the repurchase of Notes in connection with a Change in Control. A “Change in Control” shall be deemed to have occurred if any of the following occurs after the date hereof:
(i) any “person” or “group” (as such terms are defined below) is or becomes the “beneficial owner” (as defined below), directly or indirectly of shares of Voting Stock of the Company representing 50% or more of the total voting power of all outstanding classes of Voting Stock of the Company or has the power, directly or indirectly, to elect a majority of the members of the Board of Directors of the Company;
(ii) during any consecutive two-year period, individuals who at the beginning of that two-year period constituted the Company’s Board of Directors (together with any new trustees whose election to the Company’s Board of Directors, or whose nomination for election by the Company’s shareholders, was approved by a vote of a majority of the trustees who were either trustees at the beginning of such period or whose election or nomination for election was approved by the Board of Directors or nominating committee thereof, the majority of the members of which meet the above criteria) cease for any reason to constitute a majority of the Company’s Board of Directors then in office;
(iii) the Company consolidates with, or merges with or into, another Person or the Company sells, assigns, conveys, transfers, leases or otherwise disposes of all or substantially all of the assets of the Company, or any Person consolidates with, or merges with or into, the Company, in any such event other than Loans pursuant to a transaction Change of Control Offer, in which the Persons that “beneficially owned” (each case as defined below)provided in this Section 3.06, directly or indirectly, shares of Voting Stock of the Company immediately prior to such transaction “beneficially own” (as defined below), directly or indirectly, shares of Voting Stock of the Company representing at least a majority of the total voting power of all outstanding classes of Voting Stock of the surviving or transferee Person; or
(iv) holders of the Capital Stock of the Company approve any plan or proposal for the liquidation or dissolution of the Company (whether or not otherwise in compliance with this Indenture). A Change in Control shall not be deemed to have occurred if:
(i) the Closing Sale Price of Shares of Common Stock for any five Trading Days during the ten Trading Days immediately preceding the consummation of the Change in Control is at least equal to 105% of the Conversion Price in effect on such day; or
(ii) in the case of a merger or consolidation, all of the consideration (excluding cash payments for fractional shares and cash payments pursuant to dissenters’ appraisal rights) in the merger or consolidation constituting the Change in Control consists of common stock traded on a United States national securities exchange or on the Toronto Stock Exchange, or any successor thereto (or which will be so traded or quoted when issued or exchanged in connection with such change in control) and as a result of such transaction or transactions the Notes become convertible solely into such common stock. For the purpose of the definition of “Change in Control”, (i) “person” and “group” have the meanings given such terms under Section 13(d) and 14(d) of the Exchange Act or any successor provision to either of the foregoing, and the term “group” includes any group acting for the purpose of acquiring, holding or disposing of securities within the meaning of Rule 13d-5(b)(1) under the Exchange Act or any successor provision thereto, (ii) a “beneficial owner” shall be determined in accordance with Rule 13d-3 under the Exchange Act, as in effect on the date of this Indenture, except that the number of shares of Voting Stock of the Company shall be deemed to includethen, in addition to all other Indebtedness owing under the Loan Documents, the Borrower shall be obligated to pay liquidated damages to each Lender equal to the one percent premium that would have been paid by the Borrower to such Lender had such Change of Control Offer been made and consummated as required herein.
(e) Any Loans repurchased by the Borrower pursuant to this Section 3.06 shall, upon completion of such repurchase, be deemed repaid and no longer outstanding shares of Voting Stock for the purposes of the Company and Unissued Shares (as defined below) deemed to be held by the “person” or “group” (as such terms are defined above) or other Person with respect to which the Change in Control determination isLoan Documents.
Appears in 1 contract
Samples: Credit Agreement (Dune Energy Inc)
Offer to Repurchase Upon Change in Control. (a) Upon Not less than five (5) Business Days prior to the scheduled or first anticipated date of the occurrence of a Change in Control, the Company shall make an offer (a “Change in Control Offer”) to each Holder Noteholder to repurchase all or any part (equal to $1,000 or an integral multiple thereof) of each HolderNoteholder’s Notes at a purchase an offer price in cash equal to the sum of 100% of the aggregate outstanding principal amount thereof plus the Change in Control Premium, plus accrued and unpaid interest tointerest, but excludingif any, and fees thereon to the date of purchase Change in Control Payment Date (the “Change in Control Payment”). Within 10 The Change in Control Offer may state that the obligation of the Company to repurchase Notes pursuant to the Change in Control Offer is subject to the occurrence of the Change in Control.
(b) Not less than five (5) Business Days following any prior to the earlier of the scheduled or first anticipated date of the occurrence of a Change in Control, the Company shall mail send, by overnight courier, a notice to the Trustee and to each Holder Noteholder stating:
(1i) that the Change in Control Offer is being made pursuant to this Section 6.09 6.15 and that all Notes tendered will be accepted for payment;
(2ii) the purchase price and the purchase date, which shall be no later than 30 Business Days after the occurrence time and date of a the consummation of such Change in Control (the “Change in Control Payment Date”);
(3iii) that any Note Notes not tendered will continue to accrue interest;
(4) the name and address of each Paying Agent and Conversion Agent;
(5) the Conversion Price and any adjustments thereto and information concerning the Holder’s right to convert the Notes;
(6iv) that, unless the Company defaults in the payment of the Change in Control Payment, all Notes accepted for payment pursuant to the Change in Control Offer shall cease to accrue interest after the Change in Control Payment Date;
(7v) that Holders Noteholders electing to have any Notes purchased pursuant to a Change in Control Offer will shall be required to surrender the Notes, with the form entitled “Option of Holder to Elect Purchase” on the reverse of the Notes completed, to the Paying Agent Company or its designated agent for such purpose at the address specified in the notice prior to the close of business 5:00 p.m. Eastern Time on the Business Day preceding the Change in Control Payment Date;
(8) vi) that Holders Noteholders will be entitled to withdraw their election if the Paying Agent Company or its designated agent for such purpose receives, not later than the close of business 9:00 a.m. Eastern Time on the Business Day preceding the Change in Control Payment Date, a telegram, telex, facsimile transmission, transmission or letter or any other written form setting forth the name of the HolderNoteholder, the principal amount of Notes delivered for purchase, and a statement that such Holder Noteholder is withdrawing its Change in Control Payment Notice;
(9) that his election to have the Notes as to which a Change in Control Payment Notice has been given may be converted into Shares of Common Stock pursuant to this Section 6.09 only to the extent that any Change in Control Payment Notice given by the Holder has been withdrawn in accordance with the terms of this Indenturepurchased; and
(10vii) that Holders whose Noteholders that have elected to have their Notes are being purchased only in part will be issued new Notes equal in principal amount to the unpurchased portion of the Notes surrendered.
(c) On the Change in Control Payment Date, which unpurchased portion must be the Company shall, to the extent lawful, (i) accept for payment all Notes or portions thereof properly tendered pursuant to the Change in Control Offer, (ii) transmit to each Noteholder so tendered the Change in Control Payment for such Notes by wire transfer in immediately available funds, and (iii) execute and mail to each Noteholder a new Note equal to $1,000 in principal amount or an integral multiple thereofto any unpurchased portion of the Notes surrendered, if any. The Company shall comply with inform the requirements of Rule 13e-4 and Rule 14e-1 under the Exchange Act, file a Schedule TO or any successor or similar schedule, if required, under the Exchange Act and comply with any other federal, state and other securities laws and regulations thereunder to the extent such laws and regulations are applicable Noteholders in connection with the repurchase of Notes in connection with a Change in Control. A “Change in Control” shall be deemed to have occurred if any writing of the following occurs after the date hereof:
(i) any “person” or “group” (as such terms are defined below) is or becomes the “beneficial owner” (as defined below), directly or indirectly of shares of Voting Stock of the Company representing 50% or more of the total voting power of all outstanding classes of Voting Stock of the Company or has the power, directly or indirectly, to elect a majority of the members of the Board of Directors of the Company;
(ii) during any consecutive two-year period, individuals who at the beginning of that two-year period constituted the Company’s Board of Directors (together with any new trustees whose election to the Company’s Board of Directors, or whose nomination for election by the Company’s shareholders, was approved by a vote of a majority of the trustees who were either trustees at the beginning of such period or whose election or nomination for election was approved by the Board of Directors or nominating committee thereof, the majority of the members of which meet the above criteria) cease for any reason to constitute a majority of the Company’s Board of Directors then in office;
(iii) the Company consolidates with, or merges with or into, another Person or the Company sells, assigns, conveys, transfers, leases or otherwise disposes of all or substantially all of the assets of the Company, or any Person consolidates with, or merges with or into, the Company, in any such event other than pursuant to a transaction in which the Persons that “beneficially owned” (as defined below), directly or indirectly, shares of Voting Stock of the Company immediately prior to such transaction “beneficially own” (as defined below), directly or indirectly, shares of Voting Stock of the Company representing at least a majority of the total voting power of all outstanding classes of Voting Stock of the surviving or transferee Person; or
(iv) holders of the Capital Stock of the Company approve any plan or proposal for the liquidation or dissolution of the Company (whether or not otherwise in compliance with this Indenture). A Change in Control shall not be deemed to have occurred if:
(i) the Closing Sale Price of Shares of Common Stock for any five Trading Days during the ten Trading Days immediately preceding the consummation results of the Change in Control is at least equal to 105% of the Conversion Price in effect Offer on such day; or
(ii) in the case of a merger or consolidation, all of the consideration (excluding cash payments for fractional shares and cash payments pursuant to dissenters’ appraisal rights) in the merger or consolidation constituting as soon as practicable after the Change in Control consists of common stock traded on a United States national securities exchange or on the Toronto Stock Exchange, or any successor thereto (or which will be so traded or quoted when issued or exchanged in connection with such change in control) and as a result of such transaction or transactions the Notes become convertible solely into such common stock. For the purpose of the definition of “Change in Control”, (i) “person” and “group” have the meanings given such terms under Section 13(d) and 14(d) of the Exchange Act or any successor provision to either of the foregoing, and the term “group” includes any group acting for the purpose of acquiring, holding or disposing of securities within the meaning of Rule 13d-5(b)(1) under the Exchange Act or any successor provision thereto, (ii) a “beneficial owner” shall be determined in accordance with Rule 13d-3 under the Exchange Act, as in effect on the date of this Indenture, except that the number of shares of Voting Stock of the Company shall be deemed to include, in addition to all outstanding shares of Voting Stock of the Company and Unissued Shares (as defined below) deemed to be held by the “person” or “group” (as such terms are defined above) or other Person with respect to which the Change in Control determination isPayment Date.
Appears in 1 contract
Samples: Purchase Agreement (Digital Domain)
Offer to Repurchase Upon Change in Control. (a) Upon the occurrence of If a Change in ControlControl occurs, the Company shall Issuers will make an offer (a “"Change in Control Offer”") to each Holder to repurchase all or any part (equal to $1,000 or an integral multiple thereofof $1,000) of each that Holder’s 's Notes at a purchase price in cash equal to 100101% of the aggregate principal amount thereof of Notes repurchased, plus accrued and unpaid interest and Liquidated Damages, if any, on the Notes repurchased to, but excluding, the date of purchase repurchase (the “"Change in Control Payment”"), subject to the rights of Holders on the relevant record date to receive interest due on the relevant interest payment date. Within 10 Business Days 30 days following any Change in Control, the Company shall Issuers will mail a notice to each holder describing the Trustee transaction or transactions that constitute the Change in Control and to each Holder stating:
(1) that the Change in Control Offer is being made pursuant to this Section 6.09 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 30 Business Days after 60 days from the occurrence of a Change in Control date such notice is mailed (the “"Change in Control Payment Date”");
(3) that any Note not tendered will continue to accrue interest;
(4) the name and address of each Paying Agent and Conversion Agent;
(5) the Conversion Price and any adjustments thereto and information concerning the Holder’s right to convert the Notes;
(6) that, unless the Company defaults Issuers default in the payment of the Change in Control Payment, all Notes accepted for payment pursuant to the Change in Control Offer shall will cease to accrue interest and Liquidated Damages, if any, after the Change in Control Payment Date;
(75) that Holders electing to have any Notes purchased pursuant to a Change in Control Offer will be required to surrender the Notes, with the form entitled “"Option of Holder to Elect Purchase” on the reverse of " attached to the Notes completed, or transfer by book-entry transfer, to the Paying Agent at the address specified in the notice prior to the close of business on the third Business Day preceding the Change in Control Payment Date;
(8) 6) that Holders will be entitled to withdraw their election if the Paying Agent receives, not later than the close of business on the second Business Day preceding the Change in Control Payment Date, a telegram, telex, facsimile transmission, transmission or letter or any other written form setting forth the name of the Holder, the principal amount of Notes delivered for purchase, and a statement that such Holder is withdrawing its Change in Control Payment Notice;
(9) that his election to have the Notes as to which a Change in Control Payment Notice has been given may be converted into Shares of Common Stock pursuant to this Section 6.09 only to the extent that any Change in Control Payment Notice given by the Holder has been withdrawn in accordance with the terms of this Indenturepurchased; and
(107) 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 $1,000 in principal amount or an integral multiple thereof. The Company shall Issuers will comply with the requirements of Rule 13e-4 and Rule 14e-1 under the Exchange Act, file a Schedule TO or any successor or similar schedule, if required, under the Exchange Act and comply with any other federal, state and other securities laws and regulations thereunder to the extent such those laws and regulations are applicable in connection with the repurchase of the Notes in connection with as a result of a Change in Control. A “Change in Control” shall be deemed to have occurred if To the extent the provisions of any of the following occurs after the date hereof:
(i) any “person” securities laws or “group” (as such terms are defined below) is or becomes the “beneficial owner” (as defined below), directly or indirectly of shares of Voting Stock of the Company representing 50% or more of the total voting power of all outstanding classes of Voting Stock of the Company or has the power, directly or indirectly, to elect a majority of the members of the Board of Directors of the Company;
(ii) during any consecutive two-year period, individuals who at the beginning of that two-year period constituted the Company’s Board of Directors (together regulations conflict with any new trustees whose election to the Company’s Board of Directors, or whose nomination for election by the Company’s shareholders, was approved by a vote of a majority of the trustees who were either trustees at the beginning of such period or whose election or nomination for election was approved by the Board of Directors or nominating committee thereofthis Section 4.15, the majority of Issuers will comply with the members of which meet the above criteria) cease for any reason to constitute a majority of the Company’s Board of Directors then in office;
(iii) the Company consolidates with, or merges with or into, another Person or the Company sells, assigns, conveys, transfers, leases or otherwise disposes of all or substantially all of the assets of the Company, or any Person consolidates with, or merges with or into, the Company, in any such event other than pursuant to a transaction in which the Persons that “beneficially owned” (as defined below), directly or indirectly, shares of Voting Stock of the Company immediately prior to such transaction “beneficially own” (as defined below), directly or indirectly, shares of Voting Stock of the Company representing at least a majority of the total voting power of all outstanding classes of Voting Stock of the surviving or transferee Person; or
(iv) holders of the Capital Stock of the Company approve any plan or proposal for the liquidation or dissolution of the Company (whether or not otherwise in compliance with this Indenture). A Change in Control shall applicable securities laws and regulations and will not be deemed to have occurred ifbreached their obligations under this Section 4.15 by virtue of such compliance.
(b) On the Change in Control Payment Date, the Issuers will, to the extent lawful:
(i1) accept for payment all Notes or portions of Notes properly tendered pursuant to the Closing Sale Price Change in Control Offer;
(2) deposit with the Paying Agent an amount equal to the Change in Control Payment in respect of Shares all Notes or portions of Common Stock Notes properly tendered; and
(3) deliver or cause to be delivered to the Trustee the Notes properly accepted together with an Officers' Certificate stating the aggregate principal amount of Notes or portions of Notes being purchased by the Issuers. Midwest will cause the Paying Agent to promptly mail to each Holder of Notes properly tendered the Change in Control Payment for such Notes, and the Trustee, at the written request of Midwest, 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 five Trading Days during unpurchased portion of the ten Trading Days immediately preceding Notes surrendered, if any; provided, that each new Note will be in a principal amount of $1,000 or an integral multiple of $1,000. The Issuers will publicly announce the consummation results of the Change in Control is at least equal to 105% of the Conversion Price in effect Offer on such day; or
(ii) in the case of a merger or consolidation, all of the consideration (excluding cash payments for fractional shares and cash payments pursuant to dissenters’ appraisal rights) in the merger or consolidation constituting as soon as practicable after the Change in Control consists of common stock traded on Payment Date.
(c) Notwithstanding anything to the contrary in this Section 4.15, the Issuers will not be required to make a United States national securities exchange or on the Toronto Stock Exchange, or any successor thereto (or which will be so traded or quoted when issued or exchanged in connection with such change in control) and as a result of such transaction or transactions the Notes become convertible solely into such common stock. For the purpose of the definition of “Change in Control”, Control Offer upon a Change in Control if (i) “person” and “group” have the meanings given such terms under Section 13(d) and 14(d) of the Exchange Act or any successor provision to either of the foregoing, and the term “group” includes any group acting for the purpose of acquiring, holding or disposing of securities within the meaning of Rule 13d-5(b)(1) under the Exchange Act or any successor provision thereto, (ii1) a “beneficial owner” shall be determined in accordance with Rule 13d-3 under the Exchange Act, as in effect on the date of this Indenture, except that the number of shares of Voting Stock of the Company shall be deemed to include, in addition to all outstanding shares of Voting Stock of the Company and Unissued Shares (as defined below) deemed to be held by the “person” or “group” (as such terms are defined above) or other Person with respect to which third party makes the Change in Control determination isOffer in the manner, at the times and otherwise in compliance with the requirements set forth in this Section 4.15 and purchases all Notes properly tendered and not withdrawn under the Change in Control Offer, or (2) notice of redemption has been given pursuant to Section 3.07 hereof, unless and until there is a default in the payment of the applicable redemption price.
Appears in 1 contract
Samples: Indenture (Midwest Generation LLC)
Offer to Repurchase Upon Change in Control. (a) Upon the occurrence of a Change in Control, the Company shall make an offer (a “Change in Control Offer”) to each Holder to repurchase all or any part (equal to $1,000 or an integral multiple thereof) of each Holder’s Notes at a purchase price equal to 100% of the aggregate principal amount thereof plus accrued and unpaid interest to, but excluding, the date of purchase (the “Change in Control Payment”). Within 10 Business Days following any Change in Control, the Company shall mail a notice to the Trustee and to each Holder stating:
(1) that the Change in Control Offer is being made pursuant to this Section 6.09 and that all Notes tendered will be accepted for payment;
(2) the purchase price and the purchase date, which shall be no later than 30 Business Days after the occurrence of a Change in Control (the “Change in Control Payment Date”);
(3) that any Note not tendered will continue to accrue interest;
(4) the name and address of each Paying Agent and Conversion Agent;
(5) the Conversion Price and any adjustments thereto and information concerning the Holder’s right to convert the Notes;
(6) that, unless the Company defaults in the payment of the Change in Control Payment, all Notes accepted for payment pursuant to the Change in Control Offer shall cease to accrue interest after the Change in Control Payment Date;
(7) that Holders electing to have any Notes purchased pursuant to a Change in Control Offer will be required to surrender the Notes, with the form entitled “Option of Holder to Elect Purchase” on the reverse of the Notes completed, to the Paying Agent at the address specified in the notice prior to the close of business on the Business Day preceding the Change in Control Payment Date;
(8) that Holders will be entitled to withdraw their election if the Paying Agent receives, not later than the close of business on the Business Day preceding the Change in Control Payment Date, facsimile transmission, letter or any other written form setting forth the name of the Holder, the principal amount of Notes delivered for purchase, and a statement that such Holder is withdrawing its Change in Control Payment Notice;
(9) that Notes as to which a Change in Control Payment Notice has been given may be converted into Shares of Common Stock pursuant to this Section 6.09 only to the extent that any Change in Control Payment Notice given by the Holder has been withdrawn in accordance with the terms of this Indenture; and
(10) 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 $1,000 in principal amount or an integral multiple thereof. The Company shall comply with the requirements of Rule 13e-4 and Rule 14e-1 under the Exchange Act, file a Schedule TO or any successor or similar schedule, if required, under the Exchange Act and comply with any other federal, state and other securities laws and regulations thereunder to the extent such laws and regulations are applicable in connection with the repurchase of Notes in connection with a Change in Control. A “Change in Control” shall be deemed to have occurred if any of the following occurs after the date hereof:
(i) any “person” or “group” (as such terms are defined below) is or becomes the “beneficial owner” (as defined below), directly or indirectly of shares of Voting Stock of the Company representing 50% or more of the total voting power of all outstanding classes of Voting Stock of the Company or has the power, directly or indirectly, to elect a majority of the members of the Board of Directors of the Company;
(ii) during any consecutive two-year period, individuals who at the beginning of that two-year period constituted the Company’s Board of Directors (together with any new trustees whose election to the Company’s Board of Directors, or whose nomination for election by the Company’s shareholders, was approved by a vote of a majority of the trustees who were either trustees at the beginning of such period or whose election or nomination for election was approved by the Board of Directors or nominating committee thereof, the majority of the members of which meet the above criteria) cease for any reason to constitute a majority of the Company’s Board of Directors then in office;
(iii) the Company consolidates with, or merges with or into, another Person or the Company sells, assigns, conveys, transfers, leases or otherwise disposes of all or substantially all of the assets of the Company, or any Person consolidates with, or merges with or into, the Company, in any such event other than pursuant to a transaction in which the Persons that “beneficially owned” (as defined below), directly or indirectly, shares of Voting Stock of the Company immediately prior to such transaction “beneficially own” (as defined below), directly or indirectly, shares of Voting Stock of the Company representing at least a majority of the total voting power of all outstanding classes of Voting Stock of the surviving or transferee Person; or
(iv) holders of the Capital Stock of the Company approve any plan or proposal for the liquidation or dissolution of the Company (whether or not otherwise in compliance with this Indenture). A Change in Control shall not be deemed to have occurred if:
(i) the Closing Sale Price of Shares of Common Stock for any five Trading Days during the ten Trading Days immediately preceding the consummation of the Change in Control is at least equal to 105% of the Conversion Price in effect on such day; or
(ii) in the case of a merger or consolidation, all of the consideration (excluding cash payments for fractional shares and cash payments pursuant to dissenters’ appraisal rights) in the merger or consolidation constituting the Change in Control consists of common stock traded on a United States national securities exchange or on the Toronto Stock Exchange, or any successor thereto (or which will be so traded or quoted when issued or exchanged in connection with such change in control) and as a result of such transaction or transactions the Notes become convertible solely into such common stock. For the purpose of the definition of “Change in Control”, (i) “person” and “group” have the meanings given such terms under Section 13(d) and 14(d) of the Exchange Act or any successor provision to either of the foregoing, and the term “group” includes any group acting for the purpose of acquiring, holding or disposing of securities within the meaning of Rule 13d-5(b)(1) under the Exchange Act or any successor provision thereto, (ii) a “beneficial owner” shall be determined in accordance with Rule 13d-3 under the Exchange Act, as in effect on the date of this Indenture, except that the number of shares of Voting Stock of the Company shall be deemed to include, in addition to all outstanding shares of Voting Stock of the Company and Unissued Shares (as defined below) deemed to be held by the “person” or “group” (as such terms are defined above) or other Person with respect to which the Change in Control determination isand
Appears in 1 contract
