Payment by Issuance of Common Stock. At the option of the Company, the Purchase Price of Securities in respect of which a Repurchase Notice pursuant to Section 3.08(a) has been given, or a specified percentage thereof, may be paid by the Company by the issuance of a number of shares of Common Stock equal to the quotient obtained by dividing (i) the amount of Cash to which the Holders would have been entitled had the Company elected to pay all or such specified percentage, as the case may be, of the Purchase Price of such Securities in Cash by (ii) the Market Price of a share of Common Stock, subject to the next succeeding paragraph. The Company will not issue a fractional share of Common Stock in payment of the Purchase Price. Instead the Company will pay Cash for the current market value of the fractional share. The current market value of a fraction of a share shall be determined by multiplying the Market Price by such fraction and rounding the product to the nearest whole cent. It is understood that if a Holder elects to have more than one Security repurchased, the number of shares of Common Stock shall be based on the aggregate amount of Securities to be repurchased. If the Company elects to repurchase the Securities by the issuance of shares of Common Stock, a Company Notice as provided in Section 3.08(e) shall be sent to the Holders (and to beneficial owners as required by applicable law) not later than the Company Notice Date. The Company's right to exercise its election to repurchase the Securities pursuant to Section 3.08 through the issuance of shares of Common Stock shall be conditioned upon: (i) the Company having given timely Company Notice of election to purchase all or a specified percentage of the Securities with Common Stock as provided herein; (ii) the registration of the shares of Common Stock to be issued in respect of the payment of the specified percentage of the Purchase Price under the Securities Act; unless the shares of Common Stock so issued can be freely resold by the Holder (unless such Holder is the Company or an Affiliate of the Company) receiving such shares without registration under the Securities Act; (iii) any necessary qualification or registration under applicable state securities laws or the availability of an exemption from such qualification and registration; and (iv) the receipt by the Trustee of an Officers' Certificate and an Opinion of Counsel each stating that (A) the terms of the issuance of the Common Stock are in conformity with this Indenture and (B) the shares of Common Stock to be issued by the Company in payment of the specified percentage of the Purchase Price in respect of Securities have been duly authorized and, when issued and delivered pursuant to the terms of this Indenture in payment of the specified percentage of the Purchase Price in respect of Securities, will be validly issued, fully paid and nonassessable, and, in the case of such Officers' Certificate, stating that conditions (i), (ii) and (iii) above have been satisfied and, in the case of such Opinion of Counsel, stating that conditions (ii) and (iii) above have been satisfied. Such Officers' Certificate shall also set forth the number of shares of Common Stock to be issued for each $1,000 Principal Amount of Securities and the Sale Price of a share of Common Stock on each Trading Day during the period during which the Market Price is calculated and ending on the Repurchase Date. The Company may elect to pay the Purchase Price (or any portion thereof) in Common Stock only if the information necessary to calculate the Market Price is reported in a daily newspaper of national circulation. If such conditions are not satisfied with respect to a Holder or Holders prior to or on the Repurchase Date and the Company elected to repurchase the Securities to be repurchased as of such Repurchase Date pursuant to this Section 3.08 through the issuance of shares of Common Stock, the Company shall pay the entire Purchase Price in respect of such Securities of such Holder or Holders in Cash.
Appears in 2 contracts
Samples: Indenture (Wellpoint Health Networks Inc /De/), Indenture (Wellpoint Health Networks Inc /De/)
Payment by Issuance of Common Stock. At On each Purchase Date, at ----------------------------------- the option of the Company, the Purchase Price of Securities in respect of which a Repurchase Purchase Notice pursuant to Section 3.08(a) has been given, or a specified percentage thereof, may be paid by the Company by the issuance of a number of shares of Common Stock equal to the quotient obtained by dividing (i) the amount of Cash cash to which the Holders Securityholders would have been entitled had the Company elected to pay all or such specified percentage, as the case may be, of the Purchase Price of such Securities in Cash cash by (ii) the Market Price of a share of Common Stock, subject to the next succeeding paragraph. The Company will not issue a fractional share of Common Stock in payment of the Purchase Price. Instead the Company will pay Cash cash for the current market value of the fractional share. The current market value of a fraction of a share shall be determined by multiplying the Market Price by such fraction and rounding the product to the nearest whole cent. It is understood that if a Holder elects to have more than one Security repurchasedpurchased, the number of shares of Common Stock shall be based on the aggregate amount of Securities to be repurchasedpurchased. If the Company elects to repurchase purchase the Securities by the issuance of shares of Common Stock, a the Company Notice Notice, as provided in Section 3.08(e) ), shall be sent to the Holders (and to beneficial owners as required by applicable law) not later than the Company Notice Date. The Company's right to exercise its election to repurchase purchase the Securities pursuant to Section 3.08 through the issuance of shares of Common Stock shall be conditioned upon:
(i) the Company Company's not having given its Company Notice of an election to pay entirely in cash and its giving of timely Company Notice of election to purchase all or a specified percentage of the Securities with Common Stock as provided herein;
(ii) the shares of Common Stock having been admitted for listing or admitted for listing subject to notice of issuance on the principal United States securities exchange on which the Common Stock is then listed or, if the Common Stock is not then listed on a national or regional securities exchange, as quoted on the National Association of Securities Dealers Automated Quotation System;
(iii) the registration of the shares of Common Stock to be issued in respect of the payment of the specified percentage of the Purchase Price under the Securities Act of 1933, as amended (the "Securities Act; unless the shares of Common Stock so issued can be freely resold by the Holder (unless such Holder is the Company "), or an Affiliate of the Company) receiving such shares without registration under the Securities Exchange Act of 1934, as amended (the "Exchange Act"), in each case, if required;
(iiiiv) any necessary qualification or registration under applicable state securities laws or the availability of an exemption from such qualification and registration; and
(ivv) the receipt by the Trustee of an Officers' Certificate and an Opinion of Counsel each stating that (A) the terms of the issuance of the Common Stock are in conformity with this Indenture and (B) the shares of Common Stock to be issued by the Company in payment of the specified percentage of the Purchase Price in respect of Securities have been duly authorized and, when issued and delivered pursuant to the terms of this Indenture in payment of the specified percentage of the Purchase Price in respect of the Securities, will be validly issued, fully paid and nonassessablenon-assessable and, to the best of such counsel's knowledge, free from preemptive rights, and, in the case of such Officers' Certificate, stating that conditions (i), (ii), (iii) and (iiiiv) above and the condition set forth in the second succeeding sentence have been satisfied and, in the case of such Opinion of Counsel, stating that conditions (ii), (iii) and (iiiiv) above have been satisfied. Such Officers' Certificate shall also set forth the number of shares of Common Stock to be issued for each $1,000 Principal Amount at Maturity of Securities and the Sale Price of a share of Common Stock on each Trading Day trading day during the period during for which the Market Price is calculated and ending on the Repurchase Datecalculated. The Company may elect to pay the Purchase Price (or any portion thereof) in Common Stock only if the information necessary to calculate the Market Price is reported published in a The Wall Street Journal or another daily newspaper of national circulation. If such the foregoing conditions are not satisfied with respect to a Holder or Holders prior to or the close of business on the Repurchase Purchase Date and the Company has elected to repurchase purchase the Securities to be repurchased as of such Repurchase Date pursuant to this Section 3.08 through the issuance of shares of Common Stock, the Company shall pay the entire Purchase Price in respect of such the Securities of such Holder or Holders in Cashcash.
Appears in 2 contracts
Samples: Indenture (Lowes Companies Inc), Indenture (Lowes Companies Inc)
Payment by Issuance of Common Stock. At On each Purchase Date, at the option of the Company, the Purchase Price of Securities Notes in respect of which a Repurchase Purchase Notice pursuant to Section 3.08(a) 701 has been given, or a specified percentage thereof, may be paid by the Company by the issuance of a number of shares of Common Stock equal to the quotient obtained by dividing (i) the amount of Cash cash to which the Holders would have been entitled had the Company elected to pay all or such specified percentage, as the case may be, of the Purchase Price of such Securities Notes in Cash cash by (ii) 95% of the Market Price of a share of Common Stock, subject to the next succeeding paragraph. The Company will not issue a fractional share of Common Stock in payment of the Purchase Price. Instead the Company will pay Cash cash for the current market value of the fractional share. The current market value of a fraction of a share of Common Stock shall be determined by multiplying the Market Price by such fraction and rounding the product to the nearest whole centcent with one half cent being rounded upwards. It is understood that if a Holder elects to have more than one Security repurchasedNote purchased, the number of shares of Common Stock shall be based on the aggregate amount of Securities Notes to be repurchasedpurchased. If Upon determination of the Company elects to repurchase the Securities by the issuance actual number of shares of Common StockStock issuable in accordance with the provisions of this Section 704, a Company Notice as provided in Section 3.08(e) shall be sent to the Holders (and to beneficial owners as required by applicable law) not later than the Company Notice Dateshall publish such information in The Wall Street Journal or another daily newspaper of national circulation. The Company's right to exercise its election to repurchase purchase the Securities Notes pursuant to Section 3.08 this Article through the issuance of shares of Common Stock shall be conditioned upon:
(i1) the Company not having given timely its Company Notice of an election to pay entirely in cash and timely having given its Company Notice of an election to purchase all or a specified percentage of the Securities Notes with Common Stock as provided herein;
(ii2) the listing of shares of Common Stock on the principal United States securities exchange on which the Common Stock is then listed or the inclusion of such shares on NASDAQ if the Common Stock is then so included;
(3) the registration of the shares of Common Stock to be issued in respect of the payment of the specified percentage of the Purchase Price under the Securities Act and the Exchange Act, in each case, if required for the initial issuance thereof; unless the shares of Common Stock so issued can be freely resold by the Holder (unless such Holder is the Company or an Affiliate of the Company) receiving such shares without registration under the Securities Act;and
(iii4) any necessary qualification or registration under applicable state securities laws law or the availability of an exemption from such qualification and registration; and
(iv) the receipt by the Trustee of an Officers' Certificate and an Opinion of Counsel each stating that (A) the terms of the issuance of the Common Stock are in conformity with this Indenture and (B) the shares of Common Stock to be issued by the Company in payment of the specified percentage of the Purchase Price in respect of Securities have been duly authorized and, when issued and delivered pursuant to the terms of this Indenture in payment of the specified percentage of the Purchase Price in respect of Securities, will be validly issued, fully paid and nonassessable, and, in the case of such Officers' Certificate, stating that conditions (i), (ii) and (iii) above have been satisfied and, in the case of such Opinion of Counsel, stating that conditions (ii) and (iii) above have been satisfied. Such Officers' Certificate shall also set forth the number of shares of Common Stock to be issued for each $1,000 Principal Amount of Securities and the Sale Price of a share of Common Stock on each Trading Day during the period during which the Market Price is calculated and ending on the Repurchase Date. The Company may elect to pay the Purchase Price (or any portion thereof) in Common Stock only if the information necessary to calculate the Market Price is reported in a daily newspaper of national circulation. If such the foregoing conditions are not satisfied with respect to a Holder or Holders prior to or the close of business on the Repurchase Purchase Date and the Company has elected to repurchase purchase the Securities to be repurchased as of such Repurchase Date Notes pursuant to this Section 3.08 Article through the issuance of shares of Common Stock, the Company shall pay pay, without further notice, the entire Purchase Price in respect of such Securities the Notes of such Holder or Holders in Cashcash.
Appears in 2 contracts
Samples: Supplemental Indenture (Dte Energy Co), Supplemental Indenture (Dte Energy Co)
Payment by Issuance of Common Stock. At On each Purchase Date, at the ----------------------------------- option of the Company, the Purchase Price of Securities Notes in respect of which a Repurchase Purchase Notice pursuant to Section 3.08(a1107(a) has been given, or a specified percentage thereof, may be paid by the Company by the issuance of a number of shares of Common Stock equal to the quotient obtained by dividing (i) the amount of Cash cash to which the Holders Noteholders would have been entitled had the Company elected to pay all or such specified percentage, as the case may be, of the Purchase Price of such Securities Notes in Cash cash by (ii) the Market Price of a share of Common Stock, subject to the next succeeding paragraph. The Company will not issue a fractional share of Common Stock in payment of the Purchase Price. Instead the Company will pay Cash cash for the current market value of the fractional share. The current market value of a fraction of a share shall be determined by multiplying the Market Price by such fraction and rounding the product to the nearest whole cent. It is understood that if a Holder elects to have more than one Security repurchasedNote purchased, the number of shares of Common Stock shall be based on the aggregate amount of Securities Notes to be repurchasedpurchased. Upon a payment by Common Stock pursuant to the terms hereof, that portion of accrued Original Issue Discount or cash interest attributable to the period from the Issue Date to the Purchase Date with respect to the purchased Note shall not be cancelled, extinguished or forfeited but rather shall be deemed paid in full to the Holder through the delivery of the Common Stock in exchange for the Note being purchased pursuant to the terms hereof, and the fair market value of such Common Stock (together with any cash payments in lieu of fractional shares of Common Stock) shall be treated as issued, to the extent thereof, first in exchange for the accrued Original Issue Discount or cash interest through the Purchase Date, and the balance, if any, of the fair market value of such shares of Common Stock shall be treated as issued in exchange for the Issue Price of the Note being purchased pursuant to the provisions hereof. If the Company elects to repurchase purchase the Securities Notes by the issuance of shares of Common Stock, a the Company Notice Notice, as provided in Section 3.08(e) 1107(e), shall be sent to the Holders (and to beneficial owners as required by applicable law) not later than the Company Notice Date. The Company's right to exercise its election to repurchase purchase the Securities Notes pursuant to this Section 3.08 1107 through the issuance of shares of Common Stock shall be conditioned upon:
(i1) the Company Company's not having given a Company Notice stating its election to pay entirely in cash for the Notes and its giving of timely Company Notice of election to purchase all or a specified percentage of the Securities Notes with Common Stock as provided herein;
(ii2) the shares of Common Stock having been admitted for listing or admitted for listing subject to notice of issuance on the principal United States securities exchange on which the Common Stock is then listed or, if the Common Stock is not then listed on a national or regional securities exchange, admitted for quotation on the National Association of Securities Dealers Automated Quotation System;
(3) the registration of the shares of Common Stock to be issued in respect of the payment of the specified percentage of the Purchase Price under the Securities Act and the Exchange Act; unless the shares of Common Stock so issued can be freely resold by the Holder (unless such Holder is the Company or an Affiliate of the Company) receiving such shares without registration under the Securities Act, in each case, if required;
(iii4) any necessary qualification or registration of the Common Stock under applicable state securities laws or the availability of an exemption from such qualification and registration; and
(iv5) the receipt by the Trustee of an Officers' Certificate and an Opinion of Counsel each stating that (A) the terms of the issuance of the Common Stock are in conformity with this Indenture and (B) the shares of Common Stock to be issued by the Company in payment of the specified percentage of the Purchase Price in respect of Securities Notes have been duly authorized and, when issued and delivered pursuant to the terms of this Indenture in payment of the specified percentage of the Purchase Price in respect of Securitiesthe Notes, will be validly issued, fully paid and nonassessablenonassessable and shall be free of any preemptive rights and any lien or adverse claim (provided that such Opinion of Counsel may state that, insofar as it relates to the absence of such preemptive rights, liens and adverse claims, it is given upon the best knowledge of such counsel), and, in the case of such Officers' Certificate, stating that conditions (i1), (ii2), (3) and (iii4) above and the condition set forth in the second succeeding sentence have been satisfied and, in the case of such Opinion of Counsel, stating that conditions (ii2), (3) and (iii4) above have been satisfied. Such Officers' Certificate shall also set forth the number of shares of Common Stock to be issued for each $1,000 Principal Amount at Maturity of Securities Notes and the Sale Price of a share of Common Stock on each Trading Day during the period during for which the Market Price is calculated and ending on the Repurchase Datecalculated. The Company may elect to pay the Purchase Price (or any portion thereof) in Common Stock only if the information necessary to calculate the Market Price is reported published in a daily newspaper of national circulationcirculation or by other appropriate means. If such the foregoing conditions are not satisfied with respect to a Holder or Holders prior to or the close of business on the Repurchase Purchase Date and the Company has elected to repurchase purchase the Securities to be repurchased as of such Repurchase Date Notes pursuant to this Section 3.08 1107 through the issuance of shares of Common Stock, the Company shall pay the entire Purchase Price in respect of such Securities the Notes of such Holder or Holders in Cashcash.
Appears in 1 contract
Samples: Second Supplemental Indenture (Lowes Companies Inc)
Payment by Issuance of Common Stock. At On each Purchase Date, at the option of the Company, subject to Section 3.04(c), the Purchase Price of Securities Notes in respect of which a Repurchase Purchase Notice pursuant to Section 3.08(a3.04(a) has been given, or a specified percentage thereof, may be paid by the Company by the issuance of a number of shares of Common Stock equal to the quotient obtained by dividing (ix) the amount of Cash to which the Holders would have been entitled had the Company elected to pay all or such specified percentage, as the case may be, of the Purchase Price of such Securities Notes in Cash by (iiy) the Market Price of a share of Common StockStock calculated as of the relevant Purchase Date, subject to the next succeeding paragraph. The Company will shall not issue a fractional share of Common Stock in payment of the Purchase Price. Instead the Company will shall pay Cash for the current market value of the fractional share. The current market value of a fraction of a share shall be determined by multiplying the Market Price by such fraction and rounding the product to the nearest whole cent. It is understood that if a Holder elects to have more than one Security repurchasedNote purchased, the number of shares of Common Stock shall be based on the aggregate amount of Securities Notes to be repurchased. If the Company elects to repurchase the Securities by the issuance of shares of Common Stock, a Company Notice as provided in Section 3.08(e) shall be sent to the Holders (and to beneficial owners as required by applicable law) not later than the Company Notice Datepurchased. The Company's right to exercise its election to repurchase purchase the Securities Notes pursuant to Section 3.08 3.04 through the issuance of shares of Common Stock shall be conditioned upon:
(i1) the Company having given timely Company Notice notice in accordance with Section 3.04(f) of its election to purchase all or a specified percentage of the Securities Notes with Common Stock as provided herein;
(ii2) the shares of Common Stock having been admitted for listing or admitted for listing subject to notice of issuance on the United States national securities exchange on which the Common Stock is then listed or, if the Common Stock is not then listed on a national securities exchange, having been approved for trading on the Nasdaq National Market;
(3) (A)
(1) the registration of the shares of Common Stock to be issued in respect of the payment of the specified percentage of the Purchase Price under the Securities Act; unless Act or (2) the issuance of the shares of Common Stock so issued can be freely resold by in a transaction which is exempt from the Holder (unless such Holder is the Company or an Affiliate registration requirements of the Company) receiving Securities Act and which will not result in such shares without registration of Common Stock being deemed "restricted securities" under the Securities Act or otherwise and (B) the registration of the shares of Common Stock under the Exchange Act, each to the extent required thereby;
(iii4) any necessary qualification or registration under applicable state securities laws or the availability of an exemption from such qualification and registration; and
(iv) and the receipt by the Trustee on or prior to the Purchase Date of an Officers' Certificate and an Opinion of Counsel each stating that (A) the terms of the issuance of the Common Stock are in conformity with this Indenture and (B) the shares of Common Stock to be issued by the Company in payment of the specified percentage of the Purchase Price in respect of Securities Notes have been duly authorized and, when issued and delivered pursuant to the terms of this Indenture in payment of the specified percentage of the Purchase Price in respect of SecuritiesNotes, will shall be validly issued, fully paid and nonassessable, and, to the best of such counsel's knowledge, free from preemptive rights, and in the case of such Officers' Certificate, stating that conditions (i1), (ii2), (3) and (iii4) above have been satisfied and, in the case of such Opinion of Counsel, stating that conditions condition (ii3) and (iii) above have has been satisfied. Such Officers' Certificate shall also set forth the number of shares of Common Stock to be issued for each $1,000 Principal Amount of Securities Notes and the Sale Price of a share of Common Stock on each Trading Day during the period during which the Market Price is calculated and ending on the Repurchase Datecalculated. The Company may elect to pay the Purchase Price (or any portion thereof) in Common Stock only if the information necessary to calculate the Market Price is reported in a daily newspaper of national circulationpublicly reported. If such any of the conditions set forth in this Section 3.04(e) are not satisfied with respect to a Holder or Holders prior to or on the Repurchase Purchase Date and the Company elected to repurchase purchase the Securities Notes to be repurchased purchased as of such Repurchase Purchase Date pursuant to this Section 3.08 3.04 through the issuance of shares of Common Stock, the Company shall pay the entire Purchase Price in respect of such Securities Notes of such Holder or Holders in Cash. Upon determination of the actual number of shares of Common Stock which the Holder of each $1,000 Principal Amount of the Notes shall receive, the Company shall provide notice of such determination.
Appears in 1 contract
Samples: Indenture (Lear Corp /De/)
Payment by Issuance of Common Stock. At the option of the ----------------------------------- Company, subject to Section 4.03(c), the Purchase Price of Securities Notes in respect of which a Repurchase Purchase Notice pursuant to Section 3.08(a4.03(a) or Fundamental Change Purchase Notice has been given, or a specified percentage thereof, may be paid by the Company by the issuance of a number of shares of Common Stock equal to the quotient obtained by dividing (ix) the amount of Cash to which the Holders would have been entitled had the Company elected to pay all or such specified percentage, as the case may be, of the Purchase Price or Fundamental Change Purchase Price of such Securities Notes in Cash by (iiy) 0.95 times the Market Price of a share of Common Stock, subject to the next succeeding paragraph. The Company will shall not issue a fractional share of Common Stock in payment of the Purchase Price or Fundamental Change Purchase Price. Instead the Company will shall pay Cash for the current market value of the fractional share. The current market value of a fraction of a share shall be determined by multiplying the Market Price by such fraction and rounding the product to the nearest whole cent. It is understood that if a Holder elects to have more than one Security repurchasedNote purchased, the number of shares of Common Stock shall be based on the aggregate amount of Securities Notes to be repurchased. If the Company elects to repurchase the Securities by the issuance of shares of Common Stock, a Company Notice as provided in Section 3.08(e) shall be sent to the Holders (and to beneficial owners as required by applicable law) not later than the Company Notice Datepurchased. The Company's right to exercise its election to repurchase purchase the Securities Notes pursuant to Section 3.08 4.02 or Section 4.03 through the issuance of shares of Common Stock shall be conditioned upon:
(i) the Company having given timely Company Notice written notice in accordance with Section 4.03(f) of its election to purchase all or a specified percentage of the Securities Notes with Common Stock as provided herein;
(ii) (A)(1) the registration of the shares of Common Stock to be issued in respect of the payment of the specified percentage of the Purchase Price or Fundamental Change Purchase Price under the Securities Act; unless Act of 1933 or (2) the issuance of the shares of Common Stock so issued can be freely resold by in an action which is exempt from the Holder (unless such Holder is the Company or an Affiliate registration re- quirements of the Company) receiving Securities Act of 1933 and which will not result in such shares without registration of Common Stock being deemed" restricted securities" under the Securities ActAct of 1933 or otherwise and (B) the registration of the shares of Common Stock under the Securities Exchange Act of 1934;
(iii) any necessary qualification or registration under applicable state securities laws or the availability of an exemption from such qualification and registration; and
(iv) the receipt by the Trustee of an Officers' Certificate and an Opinion of Counsel each stating that (A) the terms of the issuance of the Common Stock are in conformity with this Supplemental Indenture and (B) the shares of Common Stock to be issued by the Company in payment of the specified percentage of the Purchase Price or Fundamental Change Purchase Price in respect of Securities Notes have been duly authorized and, when issued and delivered pursuant to the terms of this Supplemental Indenture in payment of the specified percentage of the Purchase Price or Fundamental Change Purchase Price in respect of SecuritiesNotes, will shall be validly issued, fully paid and nonassessable, and, to the best of such counsel's knowledge, free from preemptive rights, and in the case of such Officers' Certificate, stating that conditions (i), (ii) and (iii) above have been satisfied and, in the case of such Opinion of Counsel, stating that conditions (ii) and (iii) above have been satisfied. Such Officers' Certificate shall also set forth the number of shares of Common Stock to be issued for each $1,000 Principal Amount at Final Maturity of Securities Notes and the Sale Price of a share of Common Stock on each Trading Day during the period during which the Market Price is calculated and ending on the Repurchase Purchase Date or Fundamental Change Purchase Date. The Company may elect to pay the Purchase Price or Fundamental Change Purchase Price (or any portion thereof) in Common Stock only if the information necessary to calculate the Market Price is reported in a daily newspaper of national circulation. If such any of the conditions set forth in this Section 4.03(e) are not satisfied with respect to a Holder or Holders prior to or on the Purchase Date or Fundamental Change Repurchase Date and the Company elected to repurchase purchase the Securities Notes to be repurchased purchased as of such Purchase Date or Fundamental Change Repurchase Date pursuant to Section 4.02 or this Section 3.08 4.03 through the issuance of shares of Common Stock, the Company shall pay the entire Purchase Price or Fundamental Change Purchase Price in respect of such Securities Notes of such Holder or Holders in Cash. Upon determination of the actual number of shares of Common Stock which the Holder of each $1,000 Principal Amount at Final Maturity of the Notes shall receive, the Company shall publish such determination in a daily newspaper of national circulation.
Appears in 1 contract
Samples: Eleventh Supplemental Indenture (Horton D R Inc /De/)
Payment by Issuance of Common Stock. At the option of the Company, the Purchase Price of Securities in respect of which a Repurchase Purchase Notice pursuant to Section 3.08(a3.07(a) has been given, or a specified percentage thereof, may be paid by the Company by the issuance of a number of shares of Common Stock equal to the quotient obtained by dividing (i) the amount of Cash to which the Holders would have been entitled had the Company elected to pay all or such specified percentage, as the case may be, portion of the Purchase Price of such Securities to be paid in Cash Common Stock by (ii) the Market Price of a one share of Common StockStock as determined by the Company in the Company Notice, subject to the next succeeding paragraph. The Company will not issue a fractional share of Common Stock in payment of the Purchase Price. Instead Instead, the Company will pay Cash for cash based on the current market value of the Market Price for all fractional shareshares. The current market value of a fraction of a fractional share shall be determined to the nearest 1/1,000th of a share, by multiplying the Market Price of a full share by such fraction the fractional amount and rounding the product to the nearest whole cent. It is understood that if a Holder elects to have more than one Security repurchasedpurchased, the number of shares of Common Stock shall be based on the aggregate amount of Securities to be repurchasedpurchased. If the Company elects to repurchase purchase the Securities in whole or in part by the issuance of shares of Common Stock, a the Company Notice Notice, as provided in Section 3.08(e) 3.07(e), shall be sent to the Holders (and to beneficial owners as and to the extent required by applicable law) not later less than 20 Business Days prior to such Purchase Date (the "Company Notice Date"). The Company's right to exercise its election to repurchase the purchase Securities pursuant to Section 3.08 through the issuance of shares of Common Stock shall be conditioned upon:
(i) the Company Company's having given a timely Company Notice of an election to purchase all or a specified percentage of the Securities with Common Stock as provided herein;
(ii) the registration of the shares of such Common Stock to be issued in respect of the payment of the specified percentage of the Purchase Price under the Securities Act of 1933, as amended (the "Securities Act; unless the shares of Common Stock so issued can be freely resold by the Holder (unless such Holder is the Company "), or an Affiliate of the Company) receiving such shares without registration under the Securities Exchange Act of 1934, as amended (the "Exchange Act"), in each case, if required;
(iii) the listing of such Common Stock on the principal national securities exchange (currently the NYSE) on which the Common Stock are listed;
(iv) any necessary qualification or registration under applicable state securities laws or the availability of an exemption from such qualification and registration; and
(ivv) the receipt by the Trustee of an Officers' Certificate and an Opinion of Counsel each stating that (A) the terms of the issuance of the Common Stock are in conformity with this Indenture and (B) the shares of Common Stock to be issued by the Company in payment of the specified percentage of the Purchase Price in respect of Securities have been duly authorized and, when issued and delivered pursuant to the terms of this Indenture in payment of the specified percentage of the Purchase Price in respect of the Securities, will be validly issued, fully paid and nonassessablenon-assessable, except as set forth in Wis. Stat. §180.0622(2)(b), and, to such counsel's knowledge, free from preemptive rights, and, in the case of such Officers' Certificate, stating that the conditions (i), (ii) above and (iii) above the condition set forth in the second succeeding sentence have been satisfied and, in the case of such Opinion of Counsel, stating that the conditions in clauses (iii) and through (iiiiv) above have been satisfied. Such Officers' Certificate shall also set forth the number of shares of Common Stock to be issued for each $1,000 Principal Amount at Maturity of Securities and the Sale Price of a share of the Common Stock on each Trading Day trading day during the period beginning on the first trading day of the period during which the Market Price is calculated and ending on the Repurchase third day prior to the applicable Purchase Date. The Company may elect to pay the Purchase Price (or any portion thereof) in Common Stock only if the information necessary to calculate the Market Price is reported published in a daily newspaper of national circulationcirculation in the United States or is otherwise publicly available. If such the foregoing conditions are not satisfied with respect to a Holder or Holders prior to or the close of business on the Repurchase Date last day prior to the Purchase Date, and the Company has elected to repurchase purchase the Securities to be repurchased as of such Repurchase Date pursuant to this Section 3.08 3.07 through the issuance of shares of Common Stock, the Company shall pay the entire Purchase Price in respect of such the Securities of such Holder or Holders in Cashcash. The "Market Price," with respect to any Purchase Date or Change in Control Purchase Date, means the average of the Sale Prices of the Common Stock for the five trading day period ending on the third Business Day prior to such Purchase Date or Change in Control Purchase Date (if the third Business Day prior to such Purchase Date or Change in Control Purchase Date is a trading day, or if not, then on the last trading day prior to the third Business Day), appropriately adjusted to take into account the occurrence, during the period commencing on the first of the trading days during the five trading day period and ending on such Purchase Date or Change in Control Purchase Date, of any event described in Sections 10.06, 10.07 or 10.08; subject, however, to the conditions set forth in Sections 10.10 and 10.11. The "Sale Price" of the Common Stock on any date means the closing per share sale price (or, if no closing sale price is reported, the average of the bid and ask prices or, if more than one in either case, the average of the average bid and the average asked prices) on such date as reported on the NYSE or, if the Common Stock is not listed on the NYSE, then on the principal other national or regional securities exchange on which the Common Stock then is listed, or if the Common Stock is not listed on a U.S. national or regional exchange, as reported on the National Association of Securities Dealers Automated Quotation System, or if the Common Stock is not quoted on the National Association of Securities Dealers Automated Quotation System, as reported on the principal other market on which the Common Stock is then traded. In the absence of such quotations, the Company shall be entitled to determine the sales price on the basis of such quotations as it considers appropriate. Upon determination of the actual number of shares of Common Stock to be issued upon redemption of Securities, the Company will disseminate a press release through Dow Xxxxx & Company, Inc. or Bloomberg Business News containing this information or publish the information on the Company's website or through such other public medium as the Company may use at that time.
Appears in 1 contract
Samples: Indenture (Manpower Inc /Wi/)
Payment by Issuance of Common Stock. At On each Repurchase Date, at the option of the Company, the Purchase Repurchase Price of Securities 2015 Debentures in respect of which a Repurchase Notice pursuant to Section 3.08(a) 1501 has been given, or a specified percentage thereof, may be paid by the Company by the issuance of a number of shares of Common Stock equal to the quotient obtained by dividing (i) the amount of Cash cash to which the Holders would have been entitled had the Company elected to pay all or such specified percentage, as the case may be, of the Purchase Repurchase Price of such Securities 2015 Debentures in Cash cash by (ii) either (A) the Market Price of a share of Common StockStock in the event of an Optional Repurchase or (B) 95% of the Market Price of a share of Common Stock in the event of a Change of Control Purchase, subject to the next succeeding paragraph. The Company will not issue a fractional share of Common Stock in payment of the Purchase Repurchase Price. Instead the Company will pay Cash cash for the current market value of the fractional share. The current market value of a fraction of a share of Common Stock shall be determined by multiplying the Market Price by such fraction and rounding the product to the nearest whole centcent with one half cent being rounded upwards. It is understood that if a Holder elects to have more than one Security 2015 Debenture repurchased, the number of shares of Common Stock shall be based on the aggregate amount of Securities 2015 Debentures to be repurchased. If the Company elects to repurchase purchase the Securities 2015 Debentures by the issuance of shares of Common Stock, a the Company Notice Notice, as provided in Section 3.08(e) 1505, shall be sent to the Holders (and to beneficial owners as required by applicable law) not later than the Company Notice Date. The Company's right to exercise its election to repurchase purchase the Securities 2015 Debentures pursuant to Section 3.08 this Article Fifteen through the issuance of shares of Common Stock shall be conditioned upon:
(i) the Company not having given its Company Notice of an election to pay entirely in cash and its giving of timely Company Notice of election to purchase all or a specified percentage of the Securities 2015 Debentures with Common Stock as provided herein;
(ii) the registration of the shares of Common Stock to be issued in respect of the payment of the specified percentage of the Purchase Repurchase Price under the Securities Act or the Exchange Act; unless , in each case, if required for the shares of Common Stock so issued can be freely resold by the Holder (unless such Holder is the Company or an Affiliate of the Company) receiving such shares without registration under the Securities Actinitial issuance thereof;
(iii) any necessary qualification or registration under applicable state securities laws or the availability of an exemption from such qualification and registration; and
(iv) the receipt by the Trustee of an Officers' Certificate and an Opinion of Counsel each stating that (A) the terms of the issuance of the Common Stock are in conformity with this Indenture and (B) the shares of Common Stock to be issued by the Company in payment of the specified percentage of the Purchase Repurchase Price in respect of Securities have 2015 Debentures has been duly authorized and, when issued and delivered pursuant to the terms of this Indenture in payment of the specified percentage of the Purchase Repurchase Price in respect of Securitiesthe 2015 Debentures, will be validly issued, fully paid and nonassessablenon-assessable and, to the best of such counsel's knowledge, free from preemptive rights, and, in the case of such Officers' Officer's Certificate, stating that conditions (i), (ii) and (iii) above and the condition set forth in the second sentence of the following paragraph have been satisfied and, in the case of such Opinion of Counsel, stating that conditions (ii) and (iii) above have been satisfied. Such Officers' Certificate shall also set forth the number of shares of Common Stock to be issued for each $1,000 Principal Amount of Securities and the Sale Price of a share of Common Stock on each Trading Day during the period during which the Market Price is calculated and ending on the Repurchase Date. The Company may elect to pay the Purchase Price (or any portion thereof) in Common Stock only if the information necessary to calculate the Market Price is reported in a daily newspaper of national circulation. If such conditions are not satisfied with respect to a Holder or Holders prior to or on the Repurchase Date and the Company elected to repurchase the Securities to be repurchased as of such Repurchase Date pursuant to this Section 3.08 through the issuance of shares of Common Stock, the Company shall pay the entire Purchase Price in respect of such Securities of such Holder or Holders in Cash.
Appears in 1 contract
Payment by Issuance of Common Stock. At On each Purchase Date, at the ------------------------------------ option of the Company, the Purchase Price of Securities in respect of which a Repurchase Purchase Notice pursuant to Section 3.08(a) has been given, or a specified percentage thereof, may be paid by the Company by the issuance of a number of shares of Common Stock equal to the quotient obtained by dividing (i) the amount of Cash cash to which the Holders Securityholders would have been entitled had the Company elected to pay all or such specified percentage, as the case may be, of the Purchase Price of such Securities in Cash cash by (ii) the Market Price of a share of Common Stock, subject to the next succeeding paragraph. The Company will not issue a fractional share of Common Stock in payment of the Purchase Price. Instead the Company will pay Cash cash for the current market value of the fractional share. The current market value of a fraction of a share shall be determined by multiplying the Market Price by such fraction and rounding the product to the nearest whole cent. It is understood that if a Holder elects to have more than one Security repurchasedpurchased, the number of shares of Common Stock shall be based on the aggregate amount of Securities to be repurchasedpurchased. Upon a payment by Common Stock pursuant to the terms hereof, that portion of Accrued Original Issue Discount and accrued Tax Original Issue Discount attributable to the period from the Issue Date to the Purchase Date with respect to the purchased Security shall not be cancelled, extinguished or forfeited but rather shall be deemed paid in full to the Holder through the delivery of the Common Stock in exchange for the Security being purchased pursuant to the terms hereof, and the fair market value of such Common Stock (together with any cash payments in lieu of fractional shares of Common Stock) shall be treated as issued, to the extent thereof, first in exchange for the Accrued Original Issue Discount and Tax Original Issue Discount accrued through the Purchase Date, and the balance, if any, of the fair market value of such shares of Common Stock shall be treated as issued in exchange for the Issue Price of the Security being purchased pursuant to the provisions hereof. If the Company elects to repurchase purchase the Securities by the issuance of shares of Common Stock, a the Company Notice Notice, as provided in Section 3.08(e) ), shall be sent to the Holders (and to beneficial owners as required by applicable law) not later than the Company Notice Date. The Company's right to exercise its election to repurchase purchase the Securities pursuant to Section 3.08 through the issuance of shares of Common Stock shall be conditioned upon:
(i1) the Company Company's not having given a Company Notice stating its election to pay entirely in cash for the Securities and its giving of timely Company Notice of election to purchase all or a specified percentage of the Securities with Common Stock as provided herein;
(ii2) the shares of Common Stock having been admitted for listing or admitted for listing subject to notice of issuance on the principal United States securities exchange on which the Common Stock is then listed or, if the Common Stock is not then listed on a national or regional securities exchange, admitted for quotation on the National Association of Securities Dealers Automated Quotation System;
(3) the registration of the shares of Common Stock to be issued in respect of the payment of the specified percentage of the Purchase Price under the Securities Act of 1933, as amended (the "Securities Act; unless the shares of Common Stock so issued can be freely resold by the Holder (unless such Holder is the Company or an Affiliate of the Company) receiving such shares without registration under "), and the Securities Exchange Act of 1934, as amended (the "Exchange Act;"), in each case, if required; ------------
(iii4) any necessary qualification or registration of the Common Stock under applicable state securities laws or the availability of an exemption from such qualification and registration; and
(iv5) the receipt by the Trustee of an Officers' Certificate and an Opinion of Counsel each stating that (A) the terms of the issuance of the Common Stock are in conformity with this Indenture and (B) the shares of Common Stock to be issued by the Company in payment of the specified percentage of the Purchase Price in respect of Securities have been duly authorized and, when issued and delivered pursuant to the terms of this Indenture in payment of the specified percentage of the Purchase Price in respect of the Securities, will be validly issued, fully paid and nonassessablenonassessable and shall be free of any preemptive rights and any lien or adverse claim (provided that such Opinion of Counsel may state that, insofar as it relates to the absence of such preemptive rights, liens and adverse claims, it is given upon the best knowledge of such counsel), and, in the case of such Officers' Certificate, stating that conditions (i1), (ii2), (3) and (iii4) above and the condition set forth in the second succeeding sentence have been satisfied and, in the case of such Opinion of Counsel, stating that conditions (ii2), (3) and (iii4) above have been satisfied. Such Officers' Certificate shall also set forth the number of shares of Common Stock to be issued for each $1,000 Principal Amount of Securities and the Sale Price of a share of Common Stock on each Trading Day during the period during for which the Market Price is calculated and ending on the Repurchase Datecalculated. The Company may elect to pay the Purchase Price (or any portion thereof) in Common Stock only if the information necessary to calculate the Market Price is reported published in a daily newspaper of national circulationcirculation or by other appropriate means. If such the foregoing conditions are not satisfied with respect to a Holder or Holders prior to or the close of business on the Repurchase Purchase Date and the Company has elected to repurchase purchase the Securities to be repurchased as of such Repurchase Date pursuant to this Section 3.08 through the issuance of shares of Common Stock, the Company shall pay the entire Purchase Price in respect of such the Securities of such Holder or Holders in Cashcash.
Appears in 1 contract
Samples: Indenture (Merrill Lynch & Co Inc)
Payment by Issuance of Common Stock. At On each Purchase Date, at the option of the Company, the Purchase Price of Securities in respect of which a Repurchase Purchase Notice pursuant to Section 3.08(a) has been given, or a specified percentage thereof, may be paid by the Company by the issuance of a number of shares of Common Stock equal to the quotient obtained by dividing (i) the amount of Cash cash to which the Holders Securityholders would have been entitled had the Company elected to pay all or such specified percentage, as the case may be, of the Purchase Price of such Securities in Cash cash by (ii) the Market Price of a share of Common Stock, subject to the next succeeding paragraph. The Company will not issue a fractional share of Common Stock in payment of the Purchase Price. Instead the Company will pay Cash cash for the current market value of the fractional share. The current market value of a fraction of a share shall be determined by multiplying the Market Price by such fraction and rounding the product to the nearest whole cent. It is understood that if a Holder elects to have more than one Security repurchasedpurchased, the number of shares of Common Stock shall be based on the aggregate amount of Securities to be repurchasedpurchased. If Upon a payment by Common Stock pursuant to the Company elects terms hereof, that portion of Accrued Original Issue Discount and accrued Tax Original Issue Discount attributable to repurchase the Securities by period from the issuance Issue Date to the Purchase Date with respect to the purchased Security shall not be cancelled, extinguished or forfeited but rather shall be deemed paid in full to the Holder through the delivery of the Common Stock in exchange for the Security being purchased pursuant to the terms hereof, and the fair market value of such Common Stock (together with any cash payments in lieu of fractional shares of Common Stock, a Company Notice as provided in Section 3.08(e) shall be sent treated as issued, to the Holders (extent thereof, first in exchange for the Accrued Original Issue Discount and Tax Original Issue Discount accrued through the Purchase Date, and the balance, if any, of the fair market value of such shares of Common Stock shall be treated as issued in exchange for the Issue Price of the Security being purchased pursuant to beneficial owners as required by applicable law) not later than the Company Notice Dateprovisions hereof. The Company's right to exercise its election to repurchase purchase the Securities pursuant to Section 3.08 through the issuance of shares of Common Stock shall be conditioned upon:
(i) the Company Company's not having given its Company Notice of an election to pay entirely in cash and its giving of timely Company Notice of election to purchase all or a specified percentage of the Securities with Common Stock as provided herein;
(ii) the shares of Common Stock having been admitted for listing or admitted for listing subject to notice of issuance on the principal United States securities exchange on which the Common Stock is then listed or, if the Common Stock is not then listed on a national or regional securities exchange, as quoted on the National Association of Securities Dealers Automated Quotation System;
(iii) the registration of the shares of Common Stock to be issued in respect of the payment of the specified percentage of the Purchase Price under the Securities Act of 1933, as amended (the "Securities Act; unless the shares of Common Stock so issued can be freely resold by the Holder (unless such Holder is the Company "), or an Affiliate of the Company) receiving such shares without registration under the Securities Exchange Act of 1934, as amended (the "Exchange Act"), in each case, if required;
(iiiiv) any necessary qualification or registration under applicable state securities laws or the availability of an exemption from such qualification and registration; and
(ivv) the receipt by the Trustee of an Officers' Certificate and an Opinion of Counsel each stating that (A) the terms of the issuance of the Common Stock are in conformity with this Indenture and (B) the shares of Common Stock to be issued by the Company in payment of the specified percentage of the Purchase Price in respect of Securities have been duly authorized and, when issued and delivered pursuant to the terms of this Indenture in payment of the specified percentage of the Purchase Price in respect of the Securities, will be validly issued, fully paid and nonassessablenon-assessable and, to the best of such counsel's knowledge, free from preemptive rights, and, in the case of such Officers' Certificate, stating that conditions (i), (ii), (iii) and (iiiiv) above and the condition set forth in the second succeeding sentence have been satisfied and, in the case of such Opinion of Counsel, stating that conditions (ii), (iii) and (iiiiv) above have been satisfied. Such Officers' Certificate shall also set forth the number of shares of Common Stock to be issued for each $1,000 Principal Amount at Maturity of Securities and the Sale Price of a share of Common Stock on each Trading Day trading day during the period during for which the Market Price is calculated and ending on the Repurchase Datecalculated. The Company may elect to pay the Purchase Price (or any portion thereof) in Common Stock only if the information necessary to calculate the Market Price is reported published in a daily newspaper of national circulationcirculation or by other appropriate means. If such the foregoing conditions are not satisfied with respect to a Holder or Holders prior to or the close of business on the Repurchase Purchase Date and the Company has elected to repurchase purchase the Securities to be repurchased as of such Repurchase Date pursuant to this Section 3.08 through the issuance of shares of Common Stock, the Company shall pay the entire Purchase Price in respect of such the Securities of such Holder or Holders in Cashcash.
Appears in 1 contract
Payment by Issuance of Common Stock. At On each Purchase Date, at the option of the Company, the Purchase Price of Securities Notes in respect of which a Repurchase Purchase Notice pursuant to Section 3.08(a) 701 has been given, or a specified percentage thereof, may be paid by the Company by the issuance of a number of shares of Common Stock equal to the quotient obtained by dividing (i) the amount of Cash cash to which the Holders would have been entitled had the Company elected to pay all or such specified percentage, as the case may be, of the Purchase Price of such Securities Notes in Cash cash by (ii) 95% of the Market Price of a share of Common Stock, subject to the next succeeding paragraph. The Company will not issue a fractional share of Common Stock in payment of the Purchase Price. Instead the Company will pay Cash cash for the current market value of the fractional share. The current market value of a fraction of a share of Common Stock shall be determined by multiplying the Market Price by such fraction and rounding the product to the nearest whole centcent with one half cent being rounded upwards. It is understood that if a Holder elects to have more than one Security repurchasedNote purchased, the number of shares of Common Stock shall be based on the aggregate amount of Securities Notes to be repurchasedpurchased. If Upon determination of the Company elects to repurchase the Securities by the issuance actual number of shares of Common StockStock issuable in accordance with the provisions of this Section 704, a Company Notice as provided in Section 3.08(e) shall be sent to the Holders (and to beneficial owners as required by applicable law) not later than the Company Notice Dateshall publish such information in The Wall Street Journal or another daily newspaper of national circulation. The Company's right to exercise its election to repurchase purchase the Securities Notes pursuant to Section 3.08 this Article through the issuance of shares of Common Stock shall be conditioned upon:
(i1) the Company not having given timely its Company Notice of an election to pay entirely in cash and timely having given its Company Notice of an election to purchase all or a specified percentage of the Securities Notes with Common Stock as provided herein;
(ii2) the listing of shares of Common Stock on the principal United States securities exchange on which the Common Stock is then listed;
(3) the registration of the shares of Common Stock to be issued in respect of the payment of the specified percentage of the Purchase Price under the Securities Act and the Exchange Act, in each case, if required for the initial issuance thereof; unless the shares of Common Stock so issued can be freely resold by the Holder (unless such Holder is the Company or an Affiliate of the Company) receiving such shares without registration under the Securities Act;and
(iii4) any necessary qualification or registration under applicable state securities laws law or the availability of an exemption from such qualification and registration; and
(iv) the receipt by the Trustee of an Officers' Certificate and an Opinion of Counsel each stating that (A) the terms of the issuance of the Common Stock are in conformity with this Indenture and (B) the shares of Common Stock to be issued by the Company in payment of the specified percentage of the Purchase Price in respect of Securities have been duly authorized and, when issued and delivered pursuant to the terms of this Indenture in payment of the specified percentage of the Purchase Price in respect of Securities, will be validly issued, fully paid and nonassessable, and, in the case of such Officers' Certificate, stating that conditions (i), (ii) and (iii) above have been satisfied and, in the case of such Opinion of Counsel, stating that conditions (ii) and (iii) above have been satisfied. Such Officers' Certificate shall also set forth the number of shares of Common Stock to be issued for each $1,000 Principal Amount of Securities and the Sale Price of a share of Common Stock on each Trading Day during the period during which the Market Price is calculated and ending on the Repurchase Date. The Company may elect to pay the Purchase Price (or any portion thereof) in Common Stock only if the information necessary to calculate the Market Price is reported in a daily newspaper of national circulation. If such the foregoing conditions are not satisfied with respect to a Holder or Holders prior to or the close of business on the Repurchase Purchase Date and the Company has elected to repurchase purchase the Securities to be repurchased as of such Repurchase Date Notes pursuant to this Section 3.08 Article through the issuance of shares of Common Stock, the Company shall pay pay, without further notice, the entire Purchase Price in respect of such Securities the Notes of such Holder or Holders in Cashcash.
Appears in 1 contract
Payment by Issuance of Common Stock. At On each Purchase Date, at the option of the Company, the Purchase Price of Securities in respect of which a Repurchase Purchase Notice pursuant to Section 3.08(a) 12.1 has been given, or a specified percentage thereof, may be paid by the Company by the issuance of a number of shares of Common Stock equal to the quotient obtained by dividing (i) the amount of Cash cash to which the Holders would have been entitled had the Company elected to pay all or such specified percentage, as the case may be, of the Purchase Price of such Securities in Cash cash by (ii) the Market Price of a share of Common Stock, subject to the next succeeding paragraph. The Company will not issue a fractional share of Common Stock in payment of the Purchase Price. Instead the Company will pay Cash cash for the current market value of the fractional 58 share. The current market value of a fraction of a share of Common Stock shall be determined by multiplying the Market Price by such fraction and rounding the product to the nearest whole centcent with one half cent being rounded upwards. It is understood that if a Holder elects to have more than one Security repurchasedpurchased, the number of shares of Common Stock shall be based on the aggregate amount of Securities to be repurchasedpurchased. If the Company elects to repurchase purchase the Securities by the issuance of shares of Common Stock, a the Company Notice Notice, as provided in Section 3.08(e) 12.5, shall be sent to the Holders (and to beneficial owners as required by applicable law) not later than the Company Notice Date. The Company's right to exercise its election to repurchase purchase the Securities pursuant to Section 3.08 this Article through the issuance of shares of Common Stock shall be conditioned upon:
(i) the Company Company's not having given its Company Notice of an election to pay entirely in cash and its giving of timely Company Notice of election to purchase all or a specified percentage of the Securities with Common Stock as provided herein;
(ii) the listing of shares of Common Stock to be issued in respect of the payment of the Purchase Price on the principal United States securities exchange on which the Common Stock is then listed or, if not so listed, the quotation of such shares on NASDAQ;
(iii) the registration of the shares of Common Stock to be issued in respect of the payment of the specified percentage of the Purchase Price under the Securities Act or the Exchange Act; unless , in each case, if required for the shares of Common Stock so issued can be freely resold by the Holder (unless such Holder is the Company or an Affiliate of the Company) receiving such shares without registration under the Securities Actinitial issuance thereof;
(iiiiv) any necessary qualification or registration under applicable state securities laws or the availability of an exemption from such qualification and registration; and
(ivv) the receipt by the Trustee of an Officers' Certificate and an Opinion of Counsel each stating that (A) the terms of the issuance of the Common Stock are in conformity in all material respects with this Indenture and (B) the shares of Common Stock to be issued by the Company in payment of the specified percentage of the Purchase Price in respect of Securities have been duly authorized and, when issued and delivered pursuant to the terms of this Indenture in payment of the specified percentage of the Purchase Price in respect of the Securities, will be validly issued, fully paid and nonassessablenon-assessable, free from statutory preemptive rights and preemptive rights set forth in the Company's organizational documents and, in the case of such Officers' Officer's Certificate, stating that conditions (i), (ii) and (iii) and (iv) above and the condition set forth in the second succeeding sentence have been satisfied and, in the case of such Opinion of Counsel, stating that conditions (ii) and (iii) above have been satisfied. Such Officers' Certificate shall also set forth the number of shares of Common Stock to be issued for each $1,000 Principal Amount of Securities and the Sale Price of a share of Common Stock on each Trading Day trading day during the period commencing on the first trading day of the period during which the Market Price is calculated and ending on three Business Days prior to the Repurchase applicable Purchase Date. The Company may elect to shall pay the Purchase Price (or any portion thereof) in Common Stock only if the information necessary to calculate the Market Price is reported in a daily newspaper of national circulationpublished an Authorized Newspaper or is otherwise readily publicly available. If such the foregoing conditions are not satisfied with respect to a Holder or Holders prior to or the close of business on the Repurchase Purchase Date and the Company has elected to repurchase purchase the Securities to be repurchased as of such Repurchase Date pursuant to this Section 3.08 Article through the issuance of shares of Common Stock, the Company shall pay pay, without further notice, the entire Purchase Price in respect of such the Securities of such Holder or Holders in Cashcash.
Appears in 1 contract
Payment by Issuance of Common Stock. At On each Repurchase Date, at the option of the Company, the Purchase Repurchase Price of Securities 2020 Debentures in respect of which a Repurchase Notice pursuant to Section 3.08(a) 12.01 has been given, or a specified percentage thereof, may be paid by the Company by the issuance of a number of shares of Common Stock equal to the quotient obtained by dividing (i) the amount of Cash cash to which the Holders would have been entitled had the Company elected to pay all or such specified percentage, as the case may be, of the Purchase Repurchase Price of such Securities 2020 Debentures in Cash cash by (ii) the Market Price of a share of Common Stock, subject to the next succeeding paragraph. The Company will not issue a fractional share of Common Stock in payment of the Purchase Repurchase Price. Instead the Company will pay Cash cash for the current market value of the fractional share. The current market value of a fraction of a share of Common Stock shall be determined by multiplying the Market Price by such fraction and rounding the product to the nearest whole centcent with one half cent being rounded upwards. It is understood that if a Holder elects to have more than one Security 2020 Debenture repurchased, the number of shares of Common Stock shall be based on the aggregate amount of Securities 2020 Debentures to be repurchased. If the Company elects to repurchase purchase the Securities 2020 Debentures by the issuance of shares of Common Stock, a the Company Notice Notice, as provided in Section 3.08(e) 12.05, shall be sent to the Holders (and to beneficial owners as required by applicable law) not later than the Company Notice Date. The Company's right to exercise its election to repurchase purchase the Securities 2020 Debentures pursuant to Section 3.08 this Article XII through the issuance of shares of Common Stock shall be conditioned upon:
(i) the Company Company's not having given its Company Notice of an election to pay entirely in cash and its giving of timely Company Notice of election to purchase all or a specified percentage of the Securities 2020 Debentures with Common Stock as provided herein;
(ii) the registration of the shares of Common Stock to be issued in respect of the payment of the specified percentage of the Purchase Repurchase Price under the Securities Act or the Exchange Act; unless , in each case, if required for the shares of Common Stock so issued can be freely resold by the Holder (unless such Holder is the Company or an Affiliate of the Company) receiving such shares without registration under the Securities Actinitial issuance thereof;
(iii) any necessary qualification or registration under applicable state securities laws or the availability of an exemption from such qualification and registration; and
(iv) the receipt by the Trustee of an Officers' Certificate and an Opinion of Counsel each stating that (A) the terms of the issuance of the Common Stock are in conformity with this Indenture and (B) the shares of Common Stock to be issued by the Company in payment of the specified percentage of the Purchase Repurchase Price in respect of Securities 2020 Debentures have been duly authorized and, when issued and delivered pursuant to the terms of this Indenture in payment of the specified percentage of the Purchase Repurchase Price in respect of Securitiesthe 2020 Debentures, will be validly issued, fully paid and nonassessablenonassessable and, to the best of such counsel's knowledge, free from preemptive rights, and, in the case of such Officers' Officer's Certificate, stating that conditions (i), (ii) and (iii) above and the condition set forth in the second succeeding sentence have been satisfied and, in the case of such Opinion of Counsel, stating that conditions (ii) and (iii) above have been satisfied. Such Officers' Certificate shall also set forth the number of shares of Common Stock to be issued for each $1,000 Principal Amount of Securities and the Sale Price of a share of Common Stock on each Trading Day during the period during which the Market Price is calculated and ending on the Repurchase Date. The Company may elect to pay the Purchase Price (or any portion thereof) in Common Stock only if the information necessary to calculate the Market Price is reported in a daily newspaper of national circulation. If such conditions are not satisfied with respect to a Holder or Holders prior to or on the Repurchase Date and the Company elected to repurchase the Securities to be repurchased as of such Repurchase Date pursuant to this Section 3.08 through the issuance of shares of Common Stock, the Company shall pay the entire Purchase Price in respect of such Securities of such Holder or Holders in Cash.
Appears in 1 contract
Payment by Issuance of Common Stock. At the option of the ----------------------------------- Company, subject to Section 4.03(c), the Purchase Price of Securities Notes in respect of which a Repurchase Purchase Notice pursuant to Section 3.08(a4.03(a) or Fundamental Change Purchase Notice has been given, or a specified percentage thereof, may be paid by the Company by the issuance of a number of shares of Common Stock equal to the quotient obtained by dividing (ix) the amount of Cash to which the Holders would have been entitled had the Company elected to pay all or such specified percentage, as the case may be, of the Purchase Price or Fundamental Change Purchase Price of such Securities Notes in Cash by (iiy) 0.95 times the Market Price of a share of Common Stock, subject to the next succeeding paragraph. The Company will shall not issue a fractional share of Common Stock in payment of the Purchase Price or Fundamental Change Purchase Price. Instead the Company will shall pay Cash for the current market value of the fractional share. The current market value of a fraction of a share shall be determined by multiplying the Market Price by such fraction and rounding the product to the nearest whole cent. It is understood that if a Holder elects to have more than one Security repurchasedNote purchased, the number of shares of Common Stock shall be based on the aggregate amount of Securities Notes to be repurchased. If the Company elects to repurchase the Securities by the issuance of shares of Common Stock, a Company Notice as provided in Section 3.08(e) shall be sent to the Holders (and to beneficial owners as required by applicable law) not later than the Company Notice Datepurchased. The Company's right to exercise its election to repurchase purchase the Securities Notes pursuant to Section 3.08 4.02 or Section 4.03 through the issuance of shares of Common Stock shall be conditioned upon:
(i) the Company having given timely Company Notice written notice in accordance with Section 4.03(f) of its election to purchase all or a specified percentage of the Securities Notes with Common Stock as provided herein;
(ii) (A)(1) the registration of the shares of Common Stock to be issued in respect of the payment of the specified percentage of the Purchase Price or Fundamental Change Purchase Price under the Securities Act; unless Act of 1933 or (2) the issuance of the shares of Common Stock so issued can be freely resold by in an action which is exempt from the Holder (unless such Holder is the Company or an Affiliate registration re- quirements of the Company) receiving Securities Act of 1933 and which will not result in such shares without registration of Common Stock being deemed "restricted securities" under the Securities ActAct of 1933 or otherwise and (B) the registration of the shares of Common Stock under the Securities Exchange Act of 1934, to the extent required thereby;
(iii) any necessary qualification or registration under applicable state securities laws or the availability of an exemption from such qualification and registration; and
(iv) the receipt by the Trustee of an Officers' Certificate and an Opinion of Counsel each stating that (A) the terms of the issuance of the Common Stock are in conformity with this Supplemental Indenture and (B) the shares of Common Stock to be issued by the Company in payment of the specified percentage of the Purchase Price or Fundamental Change Purchase Price in respect of Securities Notes have been duly authorized and, when issued and delivered pursuant to the terms of this Supplemental Indenture in payment of the specified percentage of the Purchase Price or Fundamental Change Purchase Price in respect of SecuritiesNotes, will shall be validly issued, fully paid and nonassessable, and, to the best of such counsel's knowledge, free from preemptive rights, and in the case of such Officers' Certificate, stating that conditions (i), (ii) and (iii) above have been satisfied and, in the case of such Opinion of Counsel, stating that conditions condition (ii) and (iii) above have has been satisfied. Such Officers' Certificate shall also set forth the number of shares of Common Stock to be issued for each $1,000 Principal Amount of Securities Notes and the Sale Price of a share of Common Stock on each Trading Day during the period during which the Market Price is calculated and ending on the Repurchase Purchase Date or Fundamental Change Purchase Date. The Company may elect to pay the Purchase Price or Fundamental Change Purchase Price (or any portion thereof) in Common Stock only if the information necessary to calculate the Market Price is reported in a daily newspaper of national circulation. If such any of the conditions set forth in this Section 4.03(e) are not satisfied with respect to a Holder or Holders prior to or on the Purchase Date or Fundamental Change Repurchase Date and the Company elected to repurchase purchase the Securities Notes to be repurchased purchased as of such Purchase Date or Fundamental Change Repurchase Date pursuant to Section 4.02 or this Section 3.08 4.03 through the issuance of shares of Common Stock, the Company shall pay the entire Purchase Price or Fundamental Change Purchase Price in respect of such Securities Notes of such Holder or Holders in Cash. Upon determination of the actual number of shares of Common Stock which the Holder of each $1,000 Principal Amount of the Notes shall receive, the Company shall publish such determination in a daily newspaper of national circulation.
Appears in 1 contract
Samples: Eleventh Supplemental Indenture (Horton D R Inc /De/)
Payment by Issuance of Common Stock. At Except for _________, 2004, on each Purchase Date, at the option of the Company, the Purchase Price of Securities Notes in respect of which a Repurchase Purchase Notice pursuant to Section 3.08(a310(a) of this Supplemental Indenture has been given, or a specified percentage thereof, may be paid by the Company by the issuance of a number of shares of Common Stock equal to the quotient obtained by dividing (i) the amount of Cash cash to which the Holders would have been entitled had the Company elected to pay all or such specified percentage, as the case may be, of the Purchase Price of such Securities Notes in Cash cash by (ii) 0.975 times the Market Price of a share of Common Stock, subject to the next succeeding paragraph. All Notes purchased on ________, 2004, pursuant to Section 310(a) of this Supplemental Indenture, will be paid in cash. The Company will not issue a fractional share of Common Stock in payment of the Purchase Price. Instead the Company will pay Cash cash for the current market value of the fractional share. The current market value of a fraction of a share shall be determined determined, to the nearest 1/1,000th of a share, by multiplying the Market Price by such fraction and rounding the product to the nearest whole cent. It is understood that if a Holder elects to have more than one Security repurchasedNote purchased, the number of shares of Common Stock shall be based on the aggregate amount of Securities Notes to be repurchased. If the Company elects to repurchase the Securities by the issuance of shares of Common Stock, a Company Notice as provided in Section 3.08(e) shall be sent to the Holders (and to beneficial owners as required by applicable law) not later than the Company Notice Datepurchased. The Company's right to exercise its election to repurchase purchase the Securities Notes pursuant to Section 3.08 310 of this Supplemental Indenture through the issuance by the Company of shares of Common Stock shall be conditioned upon:
(i) the Company not having given its Company's Notice of an election to pay entirely in cash and its timely Company giving of its Company's Notice of election to purchase all or a specified percentage of the Securities Notes with Common Stock as provided herein;
(ii) the registration of the shares of Common Stock to be issued in respect of the payment of the specified percentage of the Purchase Price under the Securities Act or the Exchange Act; unless the shares of Common Stock so issued can be freely resold by the Holder (unless such Holder is the Company or an Affiliate of the Company) receiving such shares without registration under the Securities Act, in each case if required;
(iii) any necessary qualification or registration under applicable state securities laws or the availability of an exemption from such qualification and registration; and
(iv) the receipt by the Trustee of an Officers' Certificate and an Opinion of Counsel Counsel, each stating that (A) the terms of the issuance of the Common Stock are in conformity with this Indenture and (B) the shares of Common Stock to be issued by the Company in payment of the specified percentage of the Purchase Price in respect of Securities Notes have been duly authorized and, when issued and delivered pursuant to the terms of this Indenture in payment of the specified percentage of the Purchase Price in respect of Securitiesthe Notes, will be validly issued, fully paid and nonassessable, and, in the case of such Officers' Certificate, stating that conditions (i), (ii) and (iii) above have been satisfied and, in the case of such Opinion of Counsel, stating that conditions (ii) and (iii) above have been satisfied. Such Officers' Certificate shall also set forth the number of shares of Common Stock to be issued for each $1,000 Principal Amount of Securities and the Sale Price of a share of Common Stock on each Trading Day during the period during which the Market Price is calculated and ending on the Repurchase Date. The Company may elect to pay the Purchase Price (or any portion thereof) in Common Stock only if the information necessary to calculate the Market Price is reported in a daily newspaper of national circulation. If such conditions are not satisfied with respect to a Holder or Holders prior to or on the Repurchase Date and the Company elected to repurchase the Securities to be repurchased as of such Repurchase Date pursuant to this Section 3.08 through the issuance of shares of Common Stock, the Company shall pay the entire Purchase Price in respect of such Securities of such Holder or Holders in Cash.non-
Appears in 1 contract
Payment by Issuance of Common Stock. At On each Purchase Date, at the option of the Company, the Purchase Price of Securities in respect of which a Repurchase Purchase Notice pursuant to Section 3.08(a) hereof has been given, or a specified percentage thereof, may be paid by the Company by the issuance of a number of shares of Common Stock equal to the quotient obtained by dividing (i) the amount of Cash cash to which the Holders Securityholders would have been entitled had the Company elected to pay all or such specified percentage, as the case may be, of the Purchase Price of such Securities in Cash cash by (ii) the Market Price of a share of Common Stock, subject to the next succeeding paragraph. The Company will not issue a fractional share of Common Stock in payment of the Purchase Price. Instead the Company will pay Cash cash for the current market value of the fractional share. The current market value of a fraction of a share shall be determined by multiplying the Market Price by such fraction and rounding the product to the nearest whole cent. It is understood that if a Holder elects to have more than one Security repurchasedpurchased, the number of shares of Common Stock shall be based on the aggregate amount of Securities to be repurchasedpurchased. Upon a payment by Common Stock pursuant to the terms hereof, that portion of accrued Original Issue Discount, cash interest or Contingent Cash Interest, if any, attributable to the period from the Issue Date to the Purchase Date with respect to the purchased Security shall not be cancelled, extinguished or forfeited but rather shall be deemed paid in full to the Holder through the delivery of the Common Stock in exchange for the Security being purchased pursuant to the terms hereof, and the fair market value of such Common Stock (together with any cash payments in lieu of fractional shares of Common Stock) shall be treated as issued, to the extent thereof, first in exchange for the accrued Original Issue Discount, cash interest or Contingent Cash Interest, if any, through the Purchase Date, and the balance, if any, of the fair market value of such shares of Common Stock shall be treated as issued in exchange for the Issue Price of the Security being purchased pursuant to the provisions hereof. If the Company elects to repurchase purchase the Securities by the issuance of shares of Common Stock, a the Company Notice Notice, as provided in Section 3.08(e) hereof, shall be sent to the Holders (and to beneficial owners as required by applicable law) not later than the Company Notice Date. The Company's right to exercise its election to repurchase purchase the Securities pursuant to this Section 3.08 through the issuance of shares of Common Stock shall be conditioned upon:
(i) the Company Company's not having given its Company Notice of an election to pay entirely in cash and its giving of timely Company Notice of election to purchase all or a specified percentage of the Securities with Common Stock as provided herein;
(ii) the shares of Common Stock having been admitted for listing or admitted for listing subject to notice of issuance on the principal United States securities exchange on which the Common Stock is then listed or, if the Common Stock is not then listed on a national or regional securities exchange, as quoted on the National Association of Securities Dealers Automated Quotation System;
(iii) the registration of the shares of Common Stock to be issued in respect of the payment of the specified percentage of the Purchase Price under the Securities Act of 1933, as amended (the "Securities Act; unless the shares of Common Stock so issued can be freely resold by the Holder (unless such Holder is the Company "), or an Affiliate of the Company) receiving such shares without registration under the Securities Exchange Act of 1934, as amended (the "Exchange Act"), in each case, if required;
(iiiiv) any necessary qualification or registration under applicable state securities laws or the availability of an exemption from such qualification and registration; and
(ivv) the receipt by the Trustee of an Officers' Certificate and an Opinion of Counsel each stating that (A) the terms of the issuance of the Common Stock are in conformity with this Indenture and (B) the shares of Common Stock to be issued by the Company in payment of the specified percentage of the Purchase Price in respect of Securities have been duly authorized and, when issued and delivered pursuant to the terms of this Indenture in payment of the specified percentage of the Purchase Price in respect of the Securities, will be validly issued, fully paid and nonassessablenon-assessable and, to the best of such counsel's knowledge, free from preemptive rights under law or material contracts, and, in the case of such Officers' Certificate, stating that conditions (i), (ii), (iii) and (iiiiv) above and the condition set forth in the second succeeding sentence have been satisfied and, in the case of such Opinion of Counsel, stating that conditions (ii) and (iii) above have been satisfied. Such Officers' Certificate shall also set forth the number of shares of Common Stock to be issued for each $1,000 Principal Amount of Securities and the Sale Price of a share of Common Stock on each Trading Day during the period during which the Market Price is calculated and ending on the Repurchase Date. The Company may elect to pay the Purchase Price (or any portion thereof) in Common Stock only if the information necessary to calculate the Market Price is reported in a daily newspaper of national circulation. If such conditions are not satisfied with respect to a Holder or Holders prior to or on the Repurchase Date and the Company elected to repurchase the Securities to be repurchased as of such Repurchase Date pursuant to this Section 3.08 through the issuance of shares of Common Stock, the Company shall pay the entire Purchase Price in respect of such Securities of such Holder or Holders in Cash.
Appears in 1 contract
Payment by Issuance of Common Stock. At If, pursuant to Section 1117(b), the option of the Company, Company elects to pay the Purchase Price of Securities Notes in respect of which a Repurchase Notice pursuant to Section 3.08(a1117(a) has been given, or a specified percentage thereof, may be paid by the Company by the issuance of a number of shares of Common Stock, such number of shares of Common Stock shall be equal to the quotient obtained by dividing (i) the amount of Cash cash to which the Holders would have been entitled had the Company elected to pay all or such specified percentage, as the case may be, of the Purchase Price of such Securities Notes in Cash cash by (ii) the Market Price of a share of Common StockStock as of the applicable Repurchase Date, subject to the next succeeding paragraph. The Company will not issue a fractional share of Common Stock in payment of the Purchase Price. Instead the Company will pay Cash cash for the current market value of the fractional share. The current market value of a fraction of a share shall be determined by multiplying the Market Price as of the applicable Repurchase Date by such fraction and rounding the product to the nearest whole cent. It is understood that if a Holder elects to have more than one Security Note repurchased, the number of shares of Common Stock shall be based on the aggregate amount of Securities Notes to be repurchased. If the Company elects to repurchase the Securities by the issuance of shares of Common Stock, a Company Notice as provided in Section 3.08(e) shall be sent to the Holders (and to beneficial owners as required by applicable law) not later than the Company Notice Date. The Company's right to exercise its election to repurchase the Securities Notes pursuant to Section 3.08 1117 through the issuance of shares of Common Stock shall be conditioned upon:
(i) the Company having given timely Company Notice of election to purchase all or a specified percentage of the Securities with Common Stock as provided herein;
(ii) the registration of the shares of Common Stock to be issued in respect of the payment of the specified percentage of the Purchase Price under the Securities Act; unless the shares of Common Stock so issued can be freely resold by the Holder (unless such Holder is the Company or an Affiliate of the Company) receiving such shares without registration under Exchange Act and the Securities Act, in each case, if required for the initial issuance thereof;
(iii) any necessary qualification or registration under applicable state securities laws or the availability of an exemption from such qualification and registration; and
(iv) the receipt by the Trustee of an Officers' Certificate and an Opinion of Counsel each stating that (A) the terms of the issuance of the Common Stock are in conformity with this Indenture and (B) the shares of Common Stock to be issued by the Company in payment of the specified percentage of the Purchase Price in respect of Securities the Notes have been duly authorized and, when issued and delivered pursuant to the terms of this Indenture in payment of the specified percentage of the Purchase Price in respect of Securitiesthe Notes, will be validly issued, fully paid and nonassessable, and, in the case of such Officers' Certificate, stating that conditions (i), (ii) and (iii) above have been satisfied and, in the case of such Opinion of Counsel, stating that conditions (ii) and (iii) above have been satisfied. Such Officers' Certificate shall also set forth the number of shares of Common Stock to be issued for each $1,000 Principal Amount of Securities and the Sale Price of a share of Common Stock on each Trading Day during the period during which the Market Price is calculated and ending on the Repurchase Date. The Company may elect to pay the Purchase Price (or any portion thereof) in Common Stock only if the information necessary to calculate the Market Price Common Stock is reported listed on a United States national securities exchange or quoted in a daily newspaper an inter-dealer quotation system of any registered United States national circulationsecurities association. If such conditions are not satisfied with respect to a Holder or Holders prior to or on the Repurchase Date and the Company elected to repurchase the Securities Notes to be repurchased as of such Repurchase Date pursuant to this Section 3.08 1117 through the issuance of shares of Common Stock, the Company shall pay the entire Purchase Price in respect of such Securities Notes of such Holder or Holders in Cashcash. If required, the Company shall (i) disseminate the number of shares of Common Stock to be issued for each $1,000 Principal Amount of Notes as soon as practicable after determination thereof by news release or via the Company's website in accordance with the Company's customary practices and (ii) concurrently notify each securities exchange on which the Common Stock is then listed of such information.
Appears in 1 contract
Samples: Sixth Supplemental Indenture (Pride International Inc)
Payment by Issuance of Common Stock. At On each Fundamental Change Repurchase Date, at the option of the Company, the Purchase Fundamental Change Repurchase Price of Securities in respect of which a Fundamental Change Repurchase Notice pursuant to Section 3.08(a11.09(a) has been given, or a specified percentage thereof, may be paid by the Company by the issuance of a number of shares of Common Stock equal to the quotient obtained by dividing (i) the amount of Cash cash to which the Holders Securityholders would have been entitled had the Company elected to pay all or such specified percentage, as the case may be, of the Purchase Fundamental Change Repurchase Price of such Securities in Cash cash by (ii) 0.975 times the Market Price of a share of Common Stock, subject to the next succeeding paragraph. The Company will not issue a fractional share of Common Stock in payment of the Purchase Fundamental Change Repurchase Price. Instead the Company will pay Cash cash for the current market value of the fractional share. The current market value of a fraction of a share shall be determined determined, to the nearest 1/1,000th of a share, by multiplying the Market Price by such fraction and rounding the product to the nearest whole cent. It is understood that if a Holder elects to have more than one Security repurchasedpurchased, the number of shares of Common Stock shall be based on the aggregate amount of Securities to be repurchased. If the Company elects to repurchase the Securities by the issuance of shares of Common Stock, a Company Notice as provided in Section 3.08(e) shall be sent to the Holders (and to beneficial owners as required by applicable law) not later than the Company Notice Datepurchased. The Company's right to exercise its election to repurchase purchase the Securities pursuant to Section 3.08 11.09 through the issuance of shares of Common Stock shall be conditioned upon:
(i) the Company Company's not having given its Fundamental Change Company Notice of an election to pay entirely in cash and its giving of timely Fundamental Change Company Notice of election to purchase all or a specified percentage of the Securities with Common Stock as provided herein;
(ii) the registration of the shares of Common Stock to be issued in respect of the payment of the specified percentage of the Purchase Fundamental Change Repurchase Price under the Securities Act or the Exchange Act; unless the shares of Common Stock so issued can be freely resold by the Holder (unless such Holder is the Company or an Affiliate of the Company) receiving such shares without registration under the Securities Act, in each case if required;
(iii) any necessary qualification or registration under applicable state securities laws or the availability of an exemption from such qualification and registration; and
(iv) the receipt by the Trustee of an Officers' Certificate and an Opinion of Counsel Counsel, each stating that (A) the terms of the issuance of the Common Stock are in conformity with this Indenture and (B) the shares of Common Stock to be issued by the Company in payment of the specified percentage of the Purchase Fundamental Change Repurchase Price in respect of Securities have been duly authorized and, when issued and delivered pursuant to the terms of this Indenture in payment of the specified percentage of the Purchase Fundamental Change Repurchase Price in respect of the Securities, will be validly issued, fully paid and nonassessablenon-assessable and, to the best of such counsel's knowledge, free from preemptive rights, and, in the case of such Officers' Certificate, stating that conditions (i), (ii) and (iii) above and the condition set forth in the second succeeding sentence have been satisfied and, in the case of such Opinion of Counsel, stating that conditions (ii) and (iii) above have has been satisfied. Such Officers' Certificate shall also set forth the number of shares of Common Stock to be issued for each $1,000 Principal Amount of Securities and the Sale Price of a share of Common Stock on each Trading Day during the period during which the Market Price is calculated and ending on the Repurchase Date. The Company may elect to pay the Purchase Price (or any portion thereof) in Common Stock only if the information necessary to calculate the Market Price is reported in a daily newspaper of national circulation. If such conditions are not satisfied with respect to a Holder or Holders prior to or on the Repurchase Date and the Company elected to repurchase the Securities to be repurchased as of such Repurchase Date pursuant to this Section 3.08 through the issuance of shares of Common Stock, the Company shall pay the entire Purchase Price in respect of such Securities of such Holder or Holders in Cash.
Appears in 1 contract
Samples: Indenture (Avon Products Inc)
Payment by Issuance of Common Stock. At On the Fundamental Change Purchase Date, at the option of the Company, subject to Section 3.03(d), the Fundamental Change Purchase Price of Securities Notes in respect of which a Repurchase Fundamental Change Purchase Notice pursuant to Section 3.08(a3.03(c) has been given, or a specified percentage thereof, may be paid by the Company by the issuance of a number of shares of Common Stock equal to the quotient obtained by dividing (ix) the amount of Cash to which the Holders would have been entitled had the Company elected to pay all or such specified percentage, as the case may be, of the Fundamental Change Purchase Price of such Securities Notes in Cash by (iiy) the Market Price of a share of Common StockStock calculated as of the Fundamental Change Purchase Date, subject to the next succeeding paragraph. The Company will shall not issue a fractional share of Common Stock in payment of the Fundamental Change Purchase Price. Instead the Company will shall pay Cash for the current market value of the fractional share. The current market value of a fraction of a share shall be determined by multiplying the Market Price by such fraction and rounding the product to the nearest whole cent. It is understood that if a Holder elects to have more than one Security repurchasedNote purchased, the number of shares of Common Stock shall be based on the aggregate amount of Securities Notes to be repurchased. If the Company elects to repurchase the Securities by the issuance of shares of Common Stock, a Company Notice as provided in Section 3.08(e) shall be sent to the Holders (and to beneficial owners as required by applicable law) not later than the Company Notice Datepurchased. The Company's right to exercise its election to repurchase purchase the Securities Notes pursuant to Section 3.08 3.03 through the issuance of shares of Common Stock shall be conditioned upon:
(i1) the Company having given timely Company Notice notice in accordance with Section 3.03(g) of its election to purchase all or a specified percentage of the Securities Notes with Common Stock as provided herein;
(ii2) the shares of Common Stock having been admitted for listing or admitted for listing subject to notice of issuance on the United States national securities exchange on which the Common Stock is then listed or, if the Common Stock is not then listed on a national securities exchange, having been approved for trading on the Nasdaq National Market;
(3) (A)
(1) the registration of the shares of Common Stock to be issued in respect of the payment of the specified percentage of the Fundamental Change Purchase Price under the Securities Act; unless Act or (2) the issuance of the shares of Common Stock so issued can be freely resold by in a transaction which is exempt from the Holder (unless such Holder is the Company or an Affiliate registration requirements of the Company) receiving Securities Act and which will not result in such shares without registration of Common Stock being deemed "restricted securities" under the Securities Act or otherwise and (B) the registration of the shares of Common Stock under the Exchange Act, each to the extent required thereby;
(iii4) any necessary qualification or registration under applicable state securities laws or the availability of an exemption from such qualification and registration; and
(iv) and the receipt by the Trustee on or prior to the Fundamental Change Purchase Date of an Officers' Certificate and an Opinion of Counsel each stating that (A) the terms of the issuance of the Common Stock are in conformity with this Indenture and (B) the shares of Common Stock to be issued by the Company in payment of the specified percentage of the Fundamental Change Purchase Price in respect of Securities Notes have been duly authorized and, when issued and delivered pursuant to the terms of this Indenture in payment of the specified percentage of the Fundamental Change Purchase Price in respect of SecuritiesNotes, will shall be validly issued, fully paid and nonassessable, and, to the best of such counsel's knowledge, free from preemptive rights, and in the case of such Officers' Certificate, stating that conditions (i1), (ii2), (3) and (iii4) above have been satisfied and, in the case of such Opinion of Counsel, stating that conditions condition (ii3) and (iii) above have has been satisfied. Such Officers' Certificate shall also set forth the number of shares of Common Stock to be issued for each $1,000 Principal Amount of Securities Notes and the Sale Price of a share of Common Stock on each Trading Day during the period during which the Market Price is calculated and ending on the Repurchase Datecalculated. The Company may elect to pay the Fundamental Change Purchase Price (or any portion thereof) in Common Stock only if the information necessary to calculate the Market Price is reported in a daily newspaper of national circulationpublicly reported. If such any of the conditions set forth in this Section 3.03(f) are not satisfied with respect to a Holder or Holders prior to or on the Repurchase Fundamental Change Purchase Date and the Company elected to repurchase purchase the Securities Notes to be repurchased purchased as of such Repurchase Fundamental Change Purchase Date pursuant to this Section 3.08 3.03 through the issuance of shares of Common Stock, the Company shall pay the entire Fundamental Change Purchase Price in respect of such Securities Notes of such Holder or Holders in Cash. Upon determination of the actual number of shares of Common Stock which the Holder of each $1,000 Principal Amount of the Notes shall receive, the Company shall provide notice of such determination.
Appears in 1 contract
Samples: Indenture (Lear Corp /De/)
Payment by Issuance of Common Stock. At On each Purchase ----------------------------------- Date other than initial one, at the option of the Company, subject to Section 3.3(c), the Purchase Price of Securities Notes in respect of which a Repurchase Purchase Notice pursuant to Section 3.08(a3.3(a) has been given, or a specified percentage thereof, may be paid by the Company by the issuance of a number of shares of Common Stock equal to the quotient obtained by dividing (ix) the amount of Cash to which the Holders would have been entitled had the Company elected to pay all or such specified percentage, as the case may be, of the Purchase Price of such Securities Notes in Cash by (iiy) the Market Price of a share of Common Stock, subject to the next succeeding paragraph. The Company will shall not issue a fractional share of Common Stock in payment of the Purchase Price. Instead the Company will shall pay Cash for the current market value of the fractional share. The current market value of a fraction of a share shall be determined by multiplying the Market Price by such fraction and rounding the product to the nearest whole cent. It is understood that if a Holder elects to have more than one Security repurchasedNote purchased, the number of shares of Common Stock shall be based on the aggregate amount of Securities Notes to be repurchased. If the Company elects to repurchase the Securities by the issuance of shares of Common Stock, a Company Notice as provided in Section 3.08(e) shall be sent to the Holders (and to beneficial owners as required by applicable law) not later than the Company Notice Datepurchased. The Company's right to exercise its election to repurchase purchase the Securities Notes pursuant to Section 3.08 3.3 through the issuance of shares of Common Stock shall be conditioned upon:
(i) the Company having given timely Company Notice notice in accordance with Section 3.3(f) of its election to purchase all or a specified percentage of the Securities Notes with Common Stock as provided herein;
(ii) the shares of Common Stock having been admitted for listing or admitted for listing subject to notice of issuance on the United States national securities exchange on which the Common Stock is then listed on or, if the Common Stock is not then listed on a national securities exchange, having been approved for trading on the Nasdaq National Market;
(iii) (A)(1) the registration of the shares of Common Stock to be issued in respect of the payment of the specified percentage of the Purchase Price under the Securities Act; unless Act of 1933 or (2) the issuanceof the shares of Common Stock so issued can be freely resold by in a transaction which is exempt from the Holder (unless such Holder is the Company or an Affiliate registration requirements of the Company) receiving Securities Act of 1933 and which will not result in such shares without registration of Common Stock being deemed "restricted securities" under the Securities Act of 1933 or otherwise and (B) the registration of the shares of Common Stock under the Exchange Act, to the extent required thereby;
(iiiiv) any necessary qualification or registration under applicable state securities laws or the availability of an exemption from such qualification and registration; and
(ivv) the receipt by the Trustee of an Officers' Certificate and an Opinion of Counsel each stating that (A) the terms of the issuance of the Common Stock are in conformity with this Third Supplemental Indenture and (B) the shares of Common Stock to be issued by the Company in payment of the specified percentage of the Purchase Price in respect of Securities Notes have been duly authorized and, when issued and delivered pursuant to the terms of this Third Supplemental Indenture in payment of the specified percentage of the Purchase Price in respect of SecuritiesNotes, will shall be validly issued, fully paid and nonassessable, and, to the best of such counsel's knowledge, free from preemptive rights, and in the case of such Officers' Certificate, stating that conditions (i), (ii), (iii) and (iiiiv) above have been satisfied and, in the case of such Opinion of Counsel, stating that conditions (ii) and condition (iii) above have has been satisfied. Such Officers' Certificate shall also set forth the number of shares of Common Stock to be issued for each $1,000 Principal Amount of Securities and the Sale Price of a share of Common Stock on each Trading Day during the period during which the Market Price is calculated and ending on the Repurchase Date. The Company may elect to pay the Purchase Price (or any portion thereof) in Common Stock only if the information necessary to calculate the Market Price is reported in a daily newspaper of national circulation. If such conditions are not satisfied with respect to a Holder or Holders prior to or on the Repurchase Date and the Company elected to repurchase the Securities to be repurchased as of such Repurchase Date pursuant to this Section 3.08 through the issuance of shares of Common Stock, the Company shall pay the entire Purchase Price in respect of such Securities of such Holder or Holders in Cash.
Appears in 1 contract
Samples: Third Supplemental Indenture (Electronic Data Systems Corp /De/)
Payment by Issuance of Common Stock. At On each Purchase Date, at ----------------------------------- the option of the Company, the Purchase Price of Securities in respect of which a Repurchase Purchase Notice pursuant to Section 3.08(a) has been given, or a specified percentage thereof, may be paid by the Company by the issuance of a number of shares of Common Stock equal to the quotient obtained by dividing (i) the amount of Cash cash to which the Holders Securityholders would have been entitled had the Company elected to pay all or such specified percentage, as the case may be, of the Purchase Price of such Securities in Cash cash by (ii) the Market Price of a share of Common Stock, subject to the next succeeding paragraph. The Company will not issue a fractional share of Common Stock in payment of the Purchase Price. Instead the Company will pay Cash cash for the current market value of the fractional share. The current market value of a fraction of a share shall be determined by multiplying the Market Price by such fraction and rounding the product to the nearest whole cent. It is understood that if a Holder elects to have more than one Security repurchasedpurchased, the number of shares of Common Stock shall be based on the aggregate amount of Securities to be repurchasedpurchased. If the Company elects to repurchase purchase the Securities by the issuance of shares of Common Stock, a the Company Notice Notice, as provided in Section 3.08(e) ), shall be sent to the Holders (and to beneficial owners as required by applicable law) not later than the Company Notice Date. The Company's right to exercise its election to repurchase purchase the Securities pursuant to Section 3.08 through the issuance of shares of Common Stock shall be conditioned upon:
(i) the Company Company's not having given its Company Notice of an election to pay entirely in cash and its giving of timely Company Notice of election to purchase all or a specified percentage of the Securities with Common Stock as provided herein;
(ii) the shares of Common Stock having been admitted for listing or admitted for listing subject to notice of issuance on the principal United States securities exchange on which the Common Stock is then listed or, if the Common Stock is not then listed on a national or regional securities exchange, as quoted on the National Association of Securities Dealers Automated Quotation System;
(iii) the registration of the shares of Common Stock to be issued in respect of the payment of the specified percentage of the Purchase Price under the Securities Act of 1933, as amended (the "Securities Act; unless the shares of Common Stock so issued can be freely resold by the Holder (unless such Holder is the Company "), or an Affiliate of the Company) receiving such shares without registration under the Securities Exchange Act of 1934, as amended (the "Exchange Act"), in each case, if required;
(iiiiv) any necessary qualification or registration under applicable state securities laws or the availability of an exemption from such qualification and registration; and
(ivv) the receipt by the Trustee of an Officers' Certificate and an Opinion of Counsel each stating that (A) the terms of the issuance of the Common Stock are in conformity with this Indenture and (B) the shares of Common Stock to be issued by the Company in payment of the specified percentage of the Purchase Price in respect of Securities have been duly authorized and, when issued and delivered pursuant to the terms of this Indenture in payment of the specified percentage of the Purchase Price in respect of the Securities, will be validly issued, fully paid and nonassessablenon-assessable and, to the best of such counsel's knowledge, free from preemptive rights, and, in the case of such Officers' Certificate, stating that conditions (i), (ii), (iii) and (iiiiv) above and the condition set forth in the second succeeding sentence have been satisfied and, in the case of such Opinion of Counsel, stating that conditions (ii), (iii) and (iiiiv) above have been satisfied. Such Officers' Certificate shall also set forth the number of shares of Common Stock to be issued for each $1,000 Principal Amount at Maturity of Securities and the Sale Price of a share of Common Stock on each Trading Day trading day during the period during for which the Market Price is calculated and ending on the Repurchase Datecalculated. The Company may elect to pay the Purchase Price (or any portion thereof) in Common Stock only if the information necessary to calculate the Market Price is reported published in a The Wall Street Journal or another daily newspaper of national circulation or in any other comparable medium should such newspapers no longer be in wide circulation. If such the foregoing conditions are not satisfied with respect to a Holder or Holders prior to or the close of business on the Repurchase Purchase Date and the Company has elected to repurchase purchase the Securities to be repurchased as of such Repurchase Date pursuant to this Section 3.08 through the issuance of shares of Common Stock, the Company shall pay the entire Purchase Price in respect of such the Securities of such Holder or Holders in Cashcash.
Appears in 1 contract
Payment by Issuance of Common Stock. At the option of the Company, the Purchase Price of Securities Debentures in respect of which a Repurchase Purchase Notice pursuant to Section 3.08(a3.8(a) has been given, or a specified percentage thereof, may be paid by the Company by the issuance of a number of shares of Common Stock equal to the quotient obtained by dividing (i) the amount of Cash to which the Holders would have been entitled had the Company elected to pay all or such specified percentage, as the case may be, of the Purchase Price of such Securities Debentures in Cash by (ii) the Market Price of a share of Common Stock, subject to the next succeeding paragraph. The Company will not issue a fractional share of Common Stock in payment of the Purchase Price. Instead the Company will pay Cash for the current market value of the fractional share. The current market value of a fraction of a share shall be determined by multiplying the Market Price by such fraction and rounding the product to the nearest whole cent. It is understood that if a Holder elects to have more than one Security repurchasedDebenture purchased, the number of shares of Common Stock shall be based on the aggregate amount of Securities Debentures to be repurchased. If the Company elects to repurchase the Securities by the issuance of shares of Common Stock, a Company Notice as provided in Section 3.08(e) shall be sent to the Holders (and to beneficial owners as required by applicable law) not later than the Company Notice Datepurchased. The Company's right to exercise its election to repurchase purchase the Securities Debentures pursuant to Section 3.08 3.8 through the issuance of shares of Common Stock shall be conditioned upon:
(i) the Company having given timely Company Notice of election to purchase all or a specified percentage of the Securities Debentures with Common Stock as provided herein;
(ii) the registration of the shares of Common Stock to be issued in respect of the payment of the specified percentage of the Purchase Price under the Securities ActAct and the Securities Exchange Act of 1934, as amended; unless the shares of Common Stock so issued can be freely resold by the Holder Debentureholder receiving such shares without registration under the Securities Act pursuant to Rule 144 under the Securities Act or otherwise (unless such Holder Debentureholder is the Company or an Affiliate of the Company) receiving such shares without registration under the Securities Act);
(iii) any necessary qualification or registration under applicable state securities laws or the availability of an exemption from such qualification and registration; and
(iv) the receipt by the Trustee of an Officers' Certificate and an Opinion of Counsel each stating that (A) the terms of the issuance of the Common Stock are in conformity with this Indenture and (B) the shares of Common Stock to be issued by the Company in payment of the specified percentage of the Purchase Price in respect of Securities Debentures have been duly authorized and, when issued and delivered pursuant to the terms of this Indenture in payment of the specified percentage of the Purchase Price in respect of SecuritiesDebentures, will be validly issued, fully paid and nonassessable, and, in the case of such Officers' Certificate, stating that conditions (i), (ii) and (iii) above have been satisfied and, in the case of such Opinion of Counsel, stating that conditions (ii) and (iii) above have been satisfied. Such Officers' Certificate shall also set forth the number of shares of Common Stock to be issued for each $1,000 Principal Amount at Final Maturity of Securities Debentures and the Sale Price of a share of Common Stock on each Trading Day during the period during which the Market Price is calculated and ending on the Repurchase Purchase Date. The Company may elect to pay the Purchase Price (or any portion thereof) in Common Stock only if the information necessary to calculate the Market Price is reported in a daily newspaper of national circulation. If such any of the conditions set forth in this Section 3.8(d) are not satisfied with respect to a Holder or Holders prior to or on the Repurchase Purchase Date and the Company elected to repurchase purchase the Securities Debentures to be repurchased purchased as of such Repurchase Purchase Date pursuant to this Section 3.08 3.8 through the issuance of shares of Common Stock, the Company shall pay the entire Purchase Price in respect of such Securities Debentures of such Holder or Holders in Cash.
Appears in 1 contract
Samples: Indenture (Whole Foods Market Inc)
Payment by Issuance of Common Stock. At On each Purchase Date, at the ----------------------------------- option of the Company, the Purchase Price of Securities in respect of which a Repurchase Purchase Notice pursuant to Section 3.08(a) has been given, or a specified percentage thereof, may be paid by the Company by the issuance of a number of shares of Common Stock equal to the quotient obtained by dividing (i) the amount of Cash cash to which the Holders Securityholders would have been entitled had the Company elected to pay all or such specified percentage, as the case may be, of the Purchase Price of such Securities in Cash cash by (ii) the Market Price of a share of Common Stock, subject to the next succeeding paragraph. The Company will not issue a fractional share of Common Stock in payment of the Purchase Price. Instead the Company will pay Cash cash for the current market value of the fractional share. The current market value of a fraction of a share shall be determined by multiplying the Market Price by such fraction and rounding the product to the nearest whole cent. It is understood that if a Holder elects to have more than one Security repurchasedpurchased, the number of shares of Common Stock shall be based on the aggregate amount of Securities to be repurchasedpurchased. Upon a payment by Common Stock pursuant to the terms hereof, the Original Principal Amount and increases in the Contingent Principal Amount and accrued Tax Original Issue Discount attributable to the period from the Issue Date to the Purchase Date with respect to the purchased Security shall not be cancelled, extinguished or forfeited but rather shall be deemed paid in full to the Holder through the delivery of the Common Stock in exchange for the Security being purchased pursuant to the terms hereof, and the fair market value of such Common Stock (together with any cash payments in lieu of fractional shares of Common Stock) shall be treated as issued, to the extent thereof, first in exchange for increases in the Contingent Principal Amount and Tax Original Issue Discount accrued through the Purchase Date, and the balance, if any, of the fair market value of such shares of Common Stock shall be treated as issued in exchange for the Issue Price of the Security being purchased pursuant to the provisions hereof. If the Company elects to repurchase purchase the Securities by the issuance of shares of Common Stock, a the Company Notice Notice, as provided in Section 3.08(e) ), shall be sent to the Holders (and to beneficial owners as required by applicable law) not later than the Company Notice Date. The Company's right to exercise its election to repurchase purchase the Securities pursuant to Section 3.08 through the issuance of shares of Common Stock shall be conditioned upon:
(i1) the Company Company's not having given a Company Notice stating its election to pay entirely in cash for the Securities and its giving of timely Company Notice of election to purchase all or a specified percentage of the Securities with Common Stock as provided herein;
(ii2) the shares of Common Stock having been admitted for listing or admitted for listing subject to notice of issuance on the principal United States securities exchange on which the Common Stock is then listed or, if the Common Stock is not then listed on a national or regional securities exchange, admitted for quotation on the National Association of Securities Dealers Automated Quotation System;
(3) the registration of the shares of Common Stock to be issued in respect of the payment of the specified percentage of the Purchase Price under the Securities Act of 1933, as amended (the "Securities Act; unless the shares of Common Stock so issued can be freely resold by the Holder (unless such Holder is the Company or an Affiliate of the Company) receiving such shares without registration under "), and the Securities Exchange Act of 1934, as amended (the "Exchange Act"), in each case, if required;
(iii4) any necessary qualification or registration of the Common Stock under applicable state securities laws or the availability of an exemption from such qualification and registration; and
(iv5) the receipt by the Trustee of an Officers' Certificate and an Opinion of Counsel each stating that (A) the terms of the issuance of the Common Stock are in conformity with this Indenture and (B) the shares of Common Stock to be issued by the Company in payment of the specified percentage of the Purchase Price in respect of Securities have been duly authorized and, when issued and delivered pursuant to the terms of this Indenture in payment of the specified percentage of the Purchase Price in respect of the Securities, will be validly issued, fully paid and nonassessablenonassessable and shall be free of any preemptive rights and any lien or adverse claim (provided that such Opinion of Counsel may state that, insofar as it relates to the absence of such preemptive rights, liens and adverse claims, it is given upon the best knowledge of such counsel), and, in the case of such Officers' Certificate, stating that conditions (i1), (ii2), (3) and (iii4) above and the condition set forth in the second succeeding sentence have been satisfied and, in the case of such Opinion of Counsel, stating that conditions (ii2), (3) and (iii4) above have been satisfied. Such Officers' Certificate shall also set forth the number of shares of Common Stock to be issued for each $1,000 Original Principal Amount of Securities and the Sale Price of a share of Common Stock on each Trading Day during the period during for which the Market Price is calculated and ending on the Repurchase Datecalculated. The Company may elect to pay the Purchase Price (or any portion thereof) in Common Stock only if the information necessary to calculate the Market Price is reported published in a daily newspaper of national circulationcirculation or by other appropriate means. If such the foregoing conditions are not satisfied with respect to a Holder or Holders prior to or the close of business on the Repurchase Purchase Date and the Company has elected to repurchase purchase the Securities to be repurchased as of such Repurchase Date pursuant to this Section 3.08 through the issuance of shares of Common Stock, the Company shall pay the entire Purchase Price in respect of such the Securities of such Holder or Holders in Cashcash.
Appears in 1 contract
Samples: Indenture (Merrill Lynch & Co Inc)
Payment by Issuance of Common Stock. At On each Purchase Date, at the option of the Company, the Purchase Price of Securities in respect of which a Repurchase Purchase Notice pursuant to Section 3.08(a) has been given, or a specified percentage thereof, may be paid by the Company by the issuance of a number of shares of Common Stock equal to the quotient obtained by dividing (i) the amount of Cash cash to which the Holders Securityholders would have been entitled had the Company elected to pay all or such specified percentage, as the case may be, of the Purchase Price of such Securities in Cash cash by (ii) the Market Price of a share of Common Stock, subject to the next succeeding paragraph. The Company will not issue a fractional share of Common Stock in payment of the Purchase Price. Instead the Company will pay Cash cash for the current market value of the fractional share. The current market value of a fraction of a share shall be determined by multiplying the Market Price by such fraction and rounding the product to the nearest whole cent. It is understood that if a Holder elects to have more than one Security repurchasedpurchased, the number of shares of Common Stock shall be based on the aggregate amount of Securities to be repurchasedpurchased. If the Company elects to repurchase purchase the Securities by the issuance of shares of Common Stock, a the Company Notice Notice, as provided in Section 3.08(e) ), shall be sent to the Holders (and to beneficial owners as required by applicable law) not later than the Company Notice Date. The Company's right to exercise its election to repurchase purchase the Securities pursuant to Section 3.08 through the issuance of shares of Common Stock shall be conditioned upon:
(i) the Company Company's not having given its Company Notice of an election to pay entirely in cash and its giving of timely Company Notice of election to purchase all or a specified percentage of the Securities with Common Stock as provided herein;
(ii) the registration of the shares of Common Stock to be issued in respect of the payment of the specified percentage of the Purchase Price under the Securities Act of 1933, as amended (the "Securities Act; unless the shares of Common Stock so issued can be freely resold by the Holder (unless such Holder is the Company "), or an Affiliate of the Company) receiving such shares without registration under the Securities Exchange Act of 1934, as amended (the "Exchange Act"), in each case, if required;
(iii) any necessary qualification or registration under applicable state securities laws or the availability of an exemption from such qualification and registration; and
(iv) the receipt by the Trustee of an Officers' Certificate and an Opinion of Counsel each stating that (A) the terms of the issuance of the Common Stock are in conformity with this Indenture and (B) the shares of Common Stock to be issued by the Company in payment of the specified percentage of the Purchase Price in respect of Securities have been duly authorized and, when issued and delivered pursuant to the terms of this Indenture in payment of the specified percentage of the Purchase Price in respect of the Securities, will be validly issued, fully paid and nonassessablenon-assessable and, to the best of such counsel's knowledge, free from preemptive rights, and, in the case of such Officers' Certificate, stating that conditions (i), (ii) and (iii) above and the condition set forth in the second succeeding sentence have been satisfied and, in the case of such Opinion of Counsel, stating that conditions (ii) and (iii) above have has been satisfied. Such Officers' Certificate shall also set forth the number of shares of Common Stock to be issued for each $1,000 Principal Amount of Securities and the Sale Price of a share of Common Stock on each Trading Day during the period during which the Market Price is calculated and ending on the Repurchase Date. The Company may elect to pay the Purchase Price (or any portion thereof) in Common Stock only if the information necessary to calculate the Market Price is reported in a daily newspaper of national circulation. If such conditions are not satisfied with respect to a Holder or Holders prior to or on the Repurchase Date and the Company elected to repurchase the Securities to be repurchased as of such Repurchase Date pursuant to this Section 3.08 through the issuance of shares of Common Stock, the Company shall pay the entire Purchase Price in respect of such Securities of such Holder or Holders in Cash.
Appears in 1 contract
Samples: Indenture (Allergan Inc)
Payment by Issuance of Common Stock. At On each Purchase Date, at the option of the Company, the Purchase Price of Securities in respect of which a Repurchase Purchase Notice pursuant to Section 3.08(a) has been given, or a specified percentage thereof, may be paid by the Company by the issuance of a number of shares of Common Stock equal to the quotient obtained by dividing (i) the amount of Cash cash to which the Holders Securityholders would have been entitled had the Company elected to pay all or such specified percentage, as the case may be, of the Purchase Price of such Securities in Cash cash by (ii) the Market Price of a share of Common Stock, subject to the next succeeding paragraph. The Company will not issue a fractional share of Common Stock in payment of the Purchase Price. Instead the Company will pay Cash cash for the current market value of the fractional share. The current market value of a fraction of a share shall be determined by multiplying the Market Price by such fraction and rounding the product to the nearest whole cent. It is understood that if a Holder elects to have more than one Security repurchasedpurchased, the number of shares of Common Stock shall be based on the aggregate amount of Securities to be repurchasedpurchased. If the Company elects to repurchase purchase the Securities by the issuance of shares of Common Stock, a the Company Notice Notice, as provided in Section 3.08(e) ), shall be sent to the Holders (and to beneficial owners as required by applicable law) not later than the Company Notice Date. The Company's right to exercise its election to repurchase purchase the Securities pursuant to Section 3.08 through the issuance of shares of Common Stock shall be conditioned upon:
(i) the Company Company's not having given its Company Notice of an election to pay entirely in cash and its giving of timely Company Notice of election to purchase all or a specified percentage of the Securities with Common Stock as provided herein;
(ii) the shares of Common Stock having been admitted for listing or admitted for listing subject to notice of issuance on the principal United States securities exchange on which the Common Stock is then listed or, if the Common Stock is not then listed on a national or regional securities exchange, as quoted on the National Association of Securities Dealers Automated Quotation System;
(iii) the registration of the shares of Common Stock to be issued in respect of the payment of the specified percentage of the Purchase Price under the Securities Act of 1933, as amended (the "Securities Act; unless the shares of Common Stock so issued can be freely resold by the Holder (unless such Holder is the Company "), or an Affiliate of the Company) receiving such shares without registration under the Securities Exchange Act of 1934, as amended (the "Exchange Act"), in each case, if required;
(iiiiv) any necessary qualification or registration under applicable state securities laws or the availability of an exemption from such qualification and registration; and
(ivv) the receipt by the Trustee of an Officers' Certificate and an Opinion of Counsel each stating that (A) the terms of the issuance of the Common Stock are in conformity with this Indenture and (B) the shares of Common Stock to be issued by the Company in payment of the specified percentage of the Purchase Price in respect of Securities have been duly authorized and, when issued and delivered pursuant to the terms of this Indenture in payment of the specified percentage of the Purchase Price in respect of the Securities, will be validly issued, fully paid and nonassessablenon-assessable and, to the best of such counsel's knowledge, free from preemptive rights, and, in the case of such Officers' Certificate, stating that conditions (i), (ii), (iii) and (iiiiv) above and the condition set forth in the second succeeding sentence have been satisfied and, in the case of such Opinion of Counsel, stating that conditions (ii), (iii) and (iiiiv) above have been satisfied. Such Officers' Certificate shall also set forth the number of shares of Common Stock to be issued for each $1,000 Principal Amount at Maturity of Securities and the Sale Price of a share of Common Stock on each Trading Day trading day during the period during for which the Market Price is calculated and ending on the Repurchase Datecalculated. The Company may elect to pay the Purchase Price (or any portion thereof) in Common Stock only if the information necessary to calculate the Market Price is reported published in a THE WALL STREET JOURNAL or another daily newspaper of national circulation. If such the foregoing conditions are not satisfied with respect to a Holder or Holders prior to or the close of business on the Repurchase Purchase Date and the Company has elected to repurchase purchase the Securities to be repurchased as of such Repurchase Date pursuant to this Section 3.08 through the issuance of shares of Common Stock, the Company shall pay the entire Purchase Price in respect of such the Securities of such Holder or Holders in Cashcash.
Appears in 1 contract
Samples: Indenture (Neuberger Berman Inc)
Payment by Issuance of Common Stock. At the option of the Company, the Purchase Price of Securities Debentures in respect of which a Repurchase Purchase Notice pursuant to Section 3.08(a2.04(1) has been given, or a specified percentage thereof, may be paid by the Company by the issuance of a number of shares of Common Stock equal to the quotient obtained by dividing (ia) the amount of Cash to which the Holders would have been entitled had the Company elected to pay all or such specified percentage, as the case may be, of the Purchase Price of such Securities Debentures in Cash by (iib) the Market Price of a share of Common Stock, subject to the next succeeding paragraph. The Company will shall not issue a fractional share of Common Stock in payment of the Purchase Price. Instead the Company will shall pay Cash for the current market value of the fractional share. The current market value of a fraction of a share shall be determined by multiplying the Market Price by such fraction and rounding the product to the nearest whole cent. It is understood that if a Holder elects to have more than one Security repurchasedDebenture purchased, the number of shares of Common Stock shall be based on the aggregate amount of Securities Debentures to be repurchased. If the Company elects to repurchase the Securities by the issuance of shares of Common Stock, a Company Notice as provided in Section 3.08(e) shall be sent to the Holders (and to beneficial owners as required by applicable law) not later than the Company Notice Datepurchased. The Company's right to exercise its election to repurchase purchase the Securities Debentures pursuant to Section 3.08 2.04 through the issuance of shares of Common Stock shall be conditioned upon:
(ia) the Company having given timely Company Notice written notice in accordance with Section 2.04(5) to the Trustee of its election to purchase all or a specified percentage of the Securities Debentures with Common Stock as provided herein;
(iib) (i) (A) the registration of the shares of Common Stock to be issued in respect of the payment of the specified percentage of the Purchase Price under the Securities Act; unless Act of 1933 or (B) the issuance of the shares of Common Stock so issued can be freely resold by in an action which is exempt from the Holder (unless such Holder is the Company or an Affiliate registration requirements of the Company) receiving Securities Act of 1933 and which will not result in such shares without registration of Common Stock being deemed "restricted securities" under the Securities Act;Act of 1933 or otherwise and (ii) the registration of
(iiic) any necessary qualification or registration under applicable state securities laws or the availability of an exemption from such qualification and registration; and
(ivd) the receipt by the Trustee of an Officers' Certificate and an Opinion of Counsel each stating that (Ai) the terms of the issuance of the Common Stock are in conformity with this Supplemental Indenture and (Bii) the shares of Common Stock to be issued by the Company in payment of the specified percentage of the Purchase Price in respect of Securities Debentures have been duly authorized and, when issued and delivered pursuant to the terms of this Supplemental Indenture in payment of the specified percentage of the Purchase Price in respect of SecuritiesDebentures, will shall be validly issued, fully paid and nonassessable, and, in the case of such Officers' Certificate, stating that conditions (ia), (iib) and (iiic) above have been satisfied and, in the case of such Opinion of Counsel, stating that conditions (iib) and (iiic) above have been satisfied. Such Officers' Certificate shall also set forth the number of shares of Common Stock to be issued for each $1,000 Principal Amount of Securities and the Sale Price of a share of Common Stock on each Trading Day during the period during which the Market Price is calculated and ending on the Repurchase Date. The Company may elect to pay the Purchase Price (or any portion thereof) in Common Stock only if the information necessary to calculate the Market Price is reported in a daily newspaper of national circulation. If such conditions are not satisfied with respect to a Holder or Holders prior to or on the Repurchase Date and the Company elected to repurchase the Securities to be repurchased as of such Repurchase Date pursuant to this Section 3.08 through the issuance of shares of Common Stock, the Company shall pay the entire Purchase Price in respect of such Securities of such Holder or Holders in Cash.
Appears in 1 contract
Payment by Issuance of Common Stock. At On each Fundamental Change Repurchase Date, at the option of the CompanyIssuers, the Purchase Fundamental Change Repurchase Price of Securities in respect of which a Fundamental Change Repurchase Notice pursuant to Section 3.08(a3.09(a) has been given, or a specified percentage thereof, may be paid by the Company by the issuance of a number of shares of Common Stock equal to the quotient obtained by dividing (i) the amount of Cash cash to which the Holders would have been entitled had the Company Issuers elected to pay all or such specified percentage, as the case may be, of the Purchase Fundamental Change Repurchase Price of such Securities in Cash cash by (ii) 0.95 times the Market Price of a share of Common Stock, subject to the next succeeding paragraph. The Company will not issue a fractional share of Common Stock in payment of the Purchase Fundamental Change Repurchase Price. Instead the Company Issuers will pay Cash cash for the current market value of the fractional share. The current market value of a fraction of a share shall be determined determined, to the nearest 1/1,000th of a share, by multiplying the Market Price by such fraction and rounding the product to the nearest whole cent. It is understood that if a Holder elects to have more than one Security repurchasedpurchased, the number of shares of Common Stock shall be based on the aggregate amount of Securities to be repurchased. If the Company elects to repurchase the Securities by the issuance of shares of Common Stock, a Company Notice as provided in Section 3.08(e) shall be sent to the Holders (and to beneficial owners as required by applicable law) not later than the Company Notice Datepurchased. The Company's Issuers' right to exercise its election to repurchase purchase the Securities pursuant to Section 3.08 3.09 through the issuance by the Company of shares of Common Stock shall be conditioned upon:
(i) the Company Issuers' not having given a Fundamental Change Notice of an election to pay entirely in cash and its giving of timely Company Fundamental Change Notice of election to purchase all or a specified percentage of the Securities with Common Stock as provided herein;
(ii) the registration of the shares of Common Stock to be issued in respect of the payment of the specified percentage of the Purchase Fundamental Change Repurchase Price under the Securities Act or the Exchange Act; unless the shares of Common Stock so issued can be freely resold by the Holder (unless such Holder is the Company or an Affiliate of the Company) receiving such shares without registration under the Securities Act, in each case if required;
(iii) any necessary qualification or registration under applicable state securities laws or the availability of an exemption from such qualification and registration; and
(iv) the receipt by the Trustee of an Officers' Certificate and an Opinion of Counsel Counsel, each stating that (A) the terms of the issuance of the Common Stock are in conformity with this Indenture and (B) the shares of Common Stock to be issued by the Company in payment of the specified percentage of the Purchase Fundamental Change Repurchase Price in respect of Securities have been duly authorized and, when issued and delivered pursuant to the terms of this Indenture in payment of the specified percentage of the Purchase Fundamental Change Repurchase Price in respect of the Securities, will be validly issued, fully paid and nonassessablenon-assessable and, to the best of such counsel's knowledge, free from preemptive rights, and, in the case of such Officers' Certificate, stating that conditions (i), (ii) and (iii) above and the condition set forth in the second succeeding sentence have been satisfied and, in the case of such Opinion of Counsel, stating that conditions condition (ii) and (iii) above have has been satisfied. <PAGE> 33 Such Officers' Certificate shall also set forth the number of shares of Common Stock to be issued for each $1,000 Principal Amount at Maturity of Securities and the Sale Price of a share of Common Stock on each Trading Day trading day during the period during which the Market Price is calculated and ending on the Repurchase Datecalculated. The Company Issuers may elect to pay the Purchase Fundamental Change Repurchase Price (or any portion thereof) in Common Stock only if the information necessary to calculate the Market Price is reported published in a daily newspaper of national circulation. If such the foregoing conditions are not satisfied with respect to a Holder or Holders prior to or the close of business on the Fundamental Change Repurchase Date and the Company Issuers have elected to repurchase purchase the Securities to be repurchased as of such Repurchase Date pursuant to this Section 3.08 3.09 through the issuance by the Company of shares of Common Stock, the Company Issuers shall pay the entire Purchase Fundamental Change Repurchase Price in respect of such the Securities of such Holder or Holders in Cashcash.
Appears in 1 contract
Samples: Indenture (Jones Apparel Group Inc)
Payment by Issuance of Common Stock. At On each Purchase Date, at the option of the Company, the Purchase Price of Securities in respect of which a Repurchase Purchase Notice pursuant to Section 3.08(a) has been given, or a specified percentage thereof, may be paid by the Company by the issuance of a number of shares of Common Stock equal to the quotient obtained by dividing (i) the amount of Cash cash to which the Holders Securityholders would have been entitled had the Company elected to pay all or such specified percentage, as the case may be, of the Purchase Price of such Securities in Cash cash by (ii) the Market Price of a share of Common Stock, subject to the next succeeding paragraph. The Company will not issue a fractional share of Common Stock in payment of the Purchase Price. Instead the Company will pay Cash cash for the current market value of the fractional share. The current market value of a fraction of a share shall be determined by multiplying the Market Price by such fraction and rounding the product to the nearest whole cent. It is understood that if a Holder elects to have more than one Security repurchasedpurchased, the number of shares of Common Stock shall be based on the aggregate amount of Securities to be repurchasedpurchased. If the Company elects to repurchase purchase the Securities by the issuance of shares of Common Stock, a the Company Notice Notice, as provided in Section 3.08(e) ), shall be sent to the Holders (and to beneficial owners as required by applicable law) not later than the Company Notice Date. The Company's right to exercise its election to repurchase purchase the Securities pursuant to Section 3.08 through the issuance of shares of Common Stock shall be conditioned upon:
(i) the Company Company's not having given its Company Notice of an election to pay entirely in cash and its giving of timely Company Notice of election to purchase all or a specified percentage of the Securities with Common Stock as provided herein;
(ii) the shares of Common Stock having been admitted for listing or admitted for listing subject to notice of issuance on the principal United States securities exchange on which the Common Stock is then listed or, if the Common Stock is not then listed on a national or regional securities exchange, as quoted on the National Association of Securities Dealers Automated Quotation System;
(iii) the registration of the shares of Common Stock to be issued in respect of the payment of the specified percentage of the Purchase Price under the Securities Act of 1933, as amended (the "Securities Act; unless the shares of Common Stock so issued can be freely resold by the Holder (unless such Holder is the Company "), or an Affiliate of the Company) receiving such shares without registration under the Securities Exchange Act of 1934, as amended (the "Exchange Act"), in each case, if required;
(iiiiv) any necessary qualification or registration under applicable state securities laws or the availability of an exemption from such qualification and registration; and
(ivv) the receipt by the Trustee of an Officers' Certificate and an Opinion of Counsel each stating that (A) the terms of the issuance of the Common Stock are in conformity with this Indenture and (B) the shares of Common Stock to be issued by the Company in payment of the specified percentage of the Purchase Price in respect of Securities have been duly authorized and, when issued and delivered pursuant to the terms of this Indenture in payment of the specified percentage of the Purchase Price in respect of the Securities, will be validly issued, fully paid and nonassessablenon-assessable and, to the best of such counsel's knowledge, free from preemptive rights, and, in the case of such Officers' Certificate, stating that conditions (i), (ii), (iii) and (iiiiv) above and the condition set forth in the second succeeding sentence have been satisfied and, in the case of such Opinion of Counsel, stating that conditions (ii), (iii) and (iiiiv) above have been satisfied. Such Officers' Certificate shall also set forth the number of shares of Common Stock to be issued for each $1,000 Principal Amount of Securities and the Sale Price of a share of Common Stock on each Trading Day during the period during which the Market Price is calculated and ending on the Repurchase Date. The Company may elect to pay the Purchase Price (or any portion thereof) in Common Stock only if the information necessary to calculate the Market Price is reported in a daily newspaper of national circulation. If such conditions are not satisfied with respect to a Holder or Holders prior to or on the Repurchase Date and the Company elected to repurchase the Securities to be repurchased as of such Repurchase Date pursuant to this Section 3.08 through the issuance of shares of Common Stock, the Company shall pay the entire Purchase Price in respect of such Securities of such Holder or Holders in Cash.
Appears in 1 contract
Samples: Indenture (Franklin Resources Inc)
Payment by Issuance of Common Stock. At On each Purchase Date, at the option of the Company, the Purchase Price of Securities in respect of which a Repurchase Purchase Notice pursuant to Section 3.08(a3.8(a) hereof has been given, or a specified percentage thereof, may be paid by the Company by the issuance of a number of shares of Common Stock equal to the quotient obtained by dividing (i) the amount of Cash cash to which the Holders Securityholders would have been entitled had the Company elected to pay all or such specified percentage, as the case may be, of the Purchase Price of such Securities in Cash cash by (ii) the Market Price of a share of Common Stock, subject to the next succeeding paragraph. The Company will not issue a fractional share of Common Stock in payment of the Purchase Price. Instead the Company will pay Cash cash for the current market value of the fractional share. The current market value of a fraction of a share shall be determined by multiplying the Market Price by such fraction and rounding the product to the nearest whole cent. It is understood that if a Holder elects to have more than one Security repurchasedpurchased, the number of shares of Common Stock shall be based on the aggregate amount of Securities to be repurchasedpurchased. If Upon a payment by Common Stock pursuant to the Company elects terms hereof, that portion of accrued Original Issue Discount, cash interest or Contingent Cash Interest, if any, attributable to repurchase the Securities by period from the issuance Issue Date to the Purchase Date with respect to the purchased Security shall not be cancelled, extinguished or forfeited but rather shall be deemed paid in full to the Holder through the delivery of the Common Stock in exchange for the Security being purchased pursuant to the terms hereof, and the fair market value of such Common Stock (together with any cash payments in lieu of fractional shares of Common Stock, a Company Notice as provided in Section 3.08(e) shall be sent treated as issued, to the Holders (and to beneficial owners as required by applicable law) not later than extent thereof, first in exchange for the Company Notice Date. The Company's right to exercise its election to repurchase the Securities pursuant to Section 3.08 accrued Original Issue Discount, cash interest or Contingent Cash Interest, if any, through the issuance Purchase Date, and the balance, if any, of the fair market value of such shares of Common Stock shall be conditioned upon:
(i) the Company having given timely Company Notice of election to purchase all or a specified percentage of the Securities with Common Stock treated as provided herein;
(ii) the registration of the shares of Common Stock to be issued in respect of the payment of the specified percentage of the Purchase Price under the Securities Act; unless the shares of Common Stock so issued can be freely resold by the Holder (unless such Holder is the Company or an Affiliate of the Company) receiving such shares without registration under the Securities Act;
(iii) any necessary qualification or registration under applicable state securities laws or the availability of an exemption from such qualification and registration; and
(iv) the receipt by the Trustee of an Officers' Certificate and an Opinion of Counsel each stating that (A) the terms of the issuance of the Common Stock are in conformity with this Indenture and (B) the shares of Common Stock to be issued by the Company in payment of the specified percentage of the Purchase Price in respect of Securities have been duly authorized and, when issued and delivered pursuant to the terms of this Indenture in payment of the specified percentage of the Purchase Price in respect of Securities, will be validly issued, fully paid and nonassessable, and, in the case of such Officers' Certificate, stating that conditions (i), (ii) and (iii) above have been satisfied and, in the case of such Opinion of Counsel, stating that conditions (ii) and (iii) above have been satisfied. Such Officers' Certificate shall also set forth the number of shares of Common Stock to be issued exchange for each $1,000 Principal Amount of Securities and the Sale Price of a share of Common Stock on each Trading Day during the period during which the Market Price is calculated and ending on the Repurchase Date. The Company may elect to pay the Purchase Price (or any portion thereof) in Common Stock only if the information necessary to calculate the Market Price is reported in a daily newspaper of national circulation. If such conditions are not satisfied with respect to a Holder or Holders prior to or on the Repurchase Date and the Company elected to repurchase the Securities to be repurchased as of such Repurchase Date pursuant to this Section 3.08 through the issuance of shares of Common Stock, the Company shall pay the entire Purchase Price in respect of such Securities of such Holder or Holders in Cash.the
Appears in 1 contract
Payment by Issuance of Common Stock. At On each Repurchase Date, at the option of the Company, the Purchase Repurchase Price of Securities in respect of which a Repurchase Notice pursuant to Section 3.08(a) 13.1 has been given, or a specified percentage thereof, may be paid by the Company by the issuance of a number of shares of Common Stock equal to the quotient obtained by dividing (i) the amount of Cash cash to which the Holders Securityholders would have been entitled had the Company elected to pay all or such specified percentage, as the case may be, of the Purchase Repurchase Price of such Securities in Cash cash by (ii) the Market Price of a share of Common Stock, subject to the next succeeding paragraph. The Company will not issue a fractional share of Common Stock in payment of the Purchase Repurchase Price. Instead the Company will pay Cash cash for the current market value of the fractional share. The current market value of a fraction of a share shall be determined by multiplying the Market Price by such fraction and rounding the product to the nearest whole cent. It is understood that if a Holder elects to have more than one Security repurchasedpurchased, the number of shares of Common Stock shall be based on the aggregate amount of Securities to be repurchasedpurchased. If the Company elects to repurchase purchase the Securities by the issuance of shares of Common Stock, a the Company Notice Notice, as provided in Section 3.08(e) 13.5, shall be sent to the Holders (and to beneficial owners as required by applicable law) not later than the Company Notice Date. The Company's right to exercise its election to repurchase purchase the Securities pursuant to Section 3.08 Article 13 through the issuance of shares of Common Stock shall be conditioned upon:
(i1) the Company Company's not having given its Company Notice of an election to pay entirely in cash and its giving of timely Company Notice of election to purchase all or a specified percentage of the Securities with Common Stock as provided herein;
(ii2) the registration of the shares of Common Stock to be issued in respect of the payment of the specified percentage of the Purchase Repurchase Price under the Securities Act or the Exchange Act; unless the shares of Common Stock so issued can be freely resold by the Holder (unless such Holder is the Company or an Affiliate of the Company) receiving such shares without registration under the Securities Act, in each case, if required;
(iii3) any necessary qualification or registration under applicable state securities laws or the availability of an exemption from such qualification and registration; and
(iv4) the receipt by the Trustee of an Officers' Certificate and an Opinion of Counsel each stating that (A) the terms of the issuance of the Common Stock are in conformity with this Indenture and (B) the shares of Common Stock to be issued by the Company in payment of the specified percentage of the Purchase Repurchase Price in respect of Securities have been duly authorized and, when issued and delivered pursuant to the terms of this Indenture in payment of the specified percentage of the Purchase Repurchase Price in respect of the Securities, will be validly issued, fully paid and nonassessablenon-assessable and, to the best of such counsel's knowledge, free from preemptive rights, and, in the case of such Officers' Certificate, stating that conditions (i1), (ii2) and (iii3) above and the notice provision set forth in the second succeeding sentence below have been satisfied and, in the case of such Opinion of Counsel, stating that conditions (ii2) and (iii3) above have been satisfied. Such Officers' Certificate shall also set forth the number of shares of Common Stock to be issued for each $1,000 Principal Amount of Securities and the Sale Price of a share of Common Stock on each Trading Day during the period during which the Market Price is calculated and ending on the Repurchase Date. The Company may elect to pay the Purchase Price (or any portion thereof) in Common Stock only if the information necessary to calculate the Market Price is reported in a daily newspaper of national circulation. If such conditions are not satisfied with respect to a Holder or Holders prior to or on the Repurchase Date and the Company elected to repurchase the Securities to be repurchased as of such Repurchase Date pursuant to this Section 3.08 through the issuance of shares of Common Stock, the Company shall pay the entire Purchase Price in respect of such Securities of such Holder or Holders in Cash.
Appears in 1 contract
Samples: Indenture (Alza Corp)
Payment by Issuance of Common Stock. At On each Repurchase Date, at the option of the Company, the Purchase Repurchase Price of Securities 2008 Debentures in respect of which a Repurchase Notice pursuant to Section 3.08(a) 5.01 hereof has been given, or a specified percentage thereof, may be paid by the Company by the issuance of a number of shares of Common Stock equal to the quotient obtained by dividing (i) the amount of Cash cash to which the Holders would have been entitled had the Company elected to pay all or such specified percentage, as the case may be, of the Purchase Repurchase Price of such Securities 2008 Debentures in Cash cash by (ii) 95% of the Market Price of a share of Common Stock, subject to the next immediately succeeding paragraph. The Company will not issue a fractional share of Common Stock in payment of the Purchase Repurchase Price. Instead the Company will pay Cash cash for the current market value of the fractional share. The current market value of a fraction fractional shares of a share Common Stock shall be determined by multiplying the Market Price by such fraction and rounding the product to the nearest whole centcent with one half cent being rounded upwards. It is understood that if a Holder elects to have more than one Security 2008 Debenture repurchased, the number of shares of Common Stock shall be based on the aggregate amount of Securities 2008 Debentures to be repurchased. If the Company elects to repurchase the Securities 2008 Debentures by the issuance of shares of Common Stock, a the Company Notice Notice, as provided in Section 3.08(e) 5.05 of this Second Supplemental Indenture, shall be sent to the Holders (and to beneficial owners as required by applicable law) not later than the Company Notice Date. The Company's right to exercise its election to repurchase the Securities 2008 Debentures pursuant to Section 3.08 this Article Five through the issuance of shares of Common Stock shall be conditioned upon:
(i) the Company not having given its Company Notice of an election to pay entirely in cash and its giving of timely Company Notice of election to purchase repurchase all or a specified percentage of the Securities 2008 Debentures with Common Stock as provided herein;
(ii) the registration of the shares of Common Stock to be issued in respect of the payment of the specified percentage of the Purchase Repurchase Price under the Securities Act or the Exchange Act; unless , in each case, if required for the shares of Common Stock so issued can be freely resold by the Holder (unless such Holder is the Company or an Affiliate of the Company) receiving such shares without registration under the Securities Actinitial issuance thereof;
(iii) any necessary qualification or registration under applicable state securities laws or the availability of an exemption from such qualification and registration; and
(iv) the receipt by the Trustee of an Officers' Certificate and an Opinion of Counsel each stating that (A) the terms of the issuance of the Common Stock are in conformity with this Second Supplemental Indenture and (B) the shares of Common Stock to be issued by the Company in payment of the specified percentage of the Purchase Repurchase Price in respect of Securities have 2008 Debentures has been duly authorized and, when issued and delivered pursuant to the terms of this Second Supplemental Indenture in payment of the specified percentage of the Purchase Repurchase Price in respect of Securitiesthe 2008 Debentures, will be validly issued, fully paid and nonassessablenon-assessable and, to the best of such counsel's knowledge, free from preemptive rights, and, in the case of such Officers' Officer's Certificate, stating that conditions (i), (ii) and (iii) above and the condition set forth in the second sentence of the following paragraph have been satisfied and, in the case of such Opinion of Counsel, stating that conditions (ii) and (iii) above have been satisfied. Such Officers' Certificate shall also set forth the number of shares of Common Stock to be issued for each $1,000 Principal Amount principal amount of Securities 2008 Debentures and the Sale Price of a share of Common Stock on each Trading Day during the period commencing on the first Trading Day of the period during which the Market Price is calculated and ending on the third Trading Days prior to the applicable Repurchase Date. The Company may elect to pay the Purchase Repurchase Price (or any portion thereof) in Common Stock only if the information necessary to calculate the Market Price is reported published in a The Wall Street Journal or another daily newspaper of national circulation. If such the foregoing conditions are not satisfied with respect to a Holder or Holders prior to or the close of business on the Repurchase Date and the Company has elected to repurchase the Securities to be repurchased as of such Repurchase Date 2008 Debentures pursuant to this Section 3.08 Article Five in whole or in part through the issuance of shares of Common Stock, the Company shall pay pay, without further notice, the entire Purchase Repurchase Price in respect of such Securities the 2008 Debentures of such Holder or Holders in Cashcash. The "Market Price" in this Article Five means the average of the Sale Prices of the Common Stock for the five Trading Day period immediately preceding and including the third Trading Day prior to the applicable Repurchase Date appropriately adjusted to take into account the occurrence of any event described in Section 4.05 hereof, during the period commencing on the first of such Trading Days during such five Trading Day period and ending on such Repurchase Date.
Appears in 1 contract
Payment by Issuance of Common Stock. At the option of the Company, subject to Section 4.03(c), the Purchase Price of Securities Notes in respect of which a Repurchase Purchase Notice pursuant to Section 3.08(a4.03(a) or Fundamental Change Purchase Notice has been given, or a specified percentage thereof, may be paid by the Company by the issuance of a number of shares of Common Stock equal to the quotient obtained by dividing (ix) the amount of Cash to which the Holders would have been entitled had the Company elected to pay all or such specified percentage, as the case may be, of the Purchase Price or Fundamental Change Purchase Price of such Securities Notes in Cash by (iiy) the Market Price of a share of Common Stock, subject to the next succeeding paragraph. The Company will shall not issue a fractional share of Common Stock in payment of the Purchase Price or Fundamental Change Purchase Price. Instead the Company will shall pay Cash for the current market value of the fractional share. The current market value of a fraction of a share shall be determined by multiplying the Market Price by such fraction and rounding the product to the nearest whole cent. It is understood that if a Holder elects to have more than one Security repurchasedNote purchased, the number of shares of Common Stock shall be based on the aggregate amount of Securities Notes to be repurchased. If the Company elects to repurchase the Securities by the issuance of shares of Common Stock, a Company Notice as provided in Section 3.08(e) shall be sent to the Holders (and to beneficial owners as required by applicable law) not later than the Company Notice Datepurchased. The Company's right to exercise its election to repurchase purchase the Securities Notes pursuant to Section 3.08 4.02 or Section 4.03 through the issuance of shares of Common Stock shall be conditioned upon:
(i) the Company having given timely Company Notice in accordance with Section 4.03(f) of its election to purchase all or a specified percentage of the Securities Notes with Common Stock as provided herein;
(ii) (A) (1) the registration of the shares of Common Stock to be issued in respect of the payment of the specified percentage of the Purchase Price or Fundamental Change Purchase Price under the Securities Act; unless Act of 1933 or (2) the issuance of the shares of Common Stock so issued can be freely resold by in an action which is exempt from the Holder (unless such Holder is the Company or an Affiliate registration requirements of the Company) receiving Securities Act of 1933 and which will not result in such shares without registration of Common Stock being deemed "restricted securities" under the Securities Act of 1933 or otherwise and (B) the registration of the shares of Common Stock under the Exchange Act, to the extent required thereby;
(iii) any necessary qualification or registration under applicable state securities laws or the availability of an exemption from such qualification and registration; and
(iv) the receipt by the Trustee of an Officers' Certificate and an Opinion of Counsel each stating that (A) the terms of the issuance of the Common Stock are in conformity with this Supplemental Indenture and (B) the shares of Common Stock to be issued by the Company in payment of the specified percentage of the Purchase Price or Fundamental Change Purchase Price in respect of Securities Notes have been duly authorized and, when issued and delivered pursuant to the terms of this Supplemental Indenture in payment of the specified percentage of the Purchase Price or Fundamental Change Purchase Price in respect of SecuritiesNotes, will shall be validly issued, fully paid and nonassessable, and, to the best of such counsel's knowledge, free from preemptive rights, and in the case of such Officers' Certificate, stating that conditions (i), (ii) and (iii) above have been satisfied and, in the case of such Opinion of Counsel, stating that conditions condition (ii) and (iii) above have has been satisfied. Such Officers' Certificate shall also set forth the number of shares of Common Stock to be issued for each $1,000 Principal Amount of Securities Notes and the Sale Price of a share of Common Stock on each Trading Day during the period during which the Market Price is calculated and ending on the Repurchase Purchase Date or Fundamental Change Purchase Date. The Company may elect to pay the Purchase Price or Fundamental Change Purchase Price (or any portion thereof) in Common Stock only if the information necessary to calculate the Market Price is reported in a daily newspaper of national circulationpublicly reported. If such any of the conditions set forth in this Section 4.03(e) are not satisfied with respect to a Holder or Holders prior to or on the Purchase Date or Fundamental Change Repurchase Date and the Company elected to repurchase purchase the Securities Notes to be repurchased purchased as of such Purchase Date or Fundamental Change Repurchase Date pursuant to Section 4.02 or this Section 3.08 4.03 through the issuance of shares of Common Stock, the Company shall pay the entire Purchase Price or Fundamental Change Purchase Price in respect of such Securities Notes of such Holder or Holders in Cash. Upon determination of the actual number of shares of Common Stock which the Holder of each $1,000 Principal Amount of the Notes shall receive, the Company shall provide Notice of such determination.
Appears in 1 contract
Payment by Issuance of Common Stock. At the option of the Company, subject to Section 4.03(c), the Purchase Price of Securities Notes in respect of which a Repurchase Purchase Notice pursuant to Section 3.08(a4.03(a) or Fundamental Change Purchase Notice has been given, or a specified percentage thereof, may be paid by the Company by the issuance of a number of shares of Common Stock equal to the quotient obtained by dividing (ix) the amount of Cash to which the Holders would have been entitled had the Company elected to pay all or such specified percentage, as the case may be, of the Purchase Price or Fundamental Change Purchase Price of such Securities Notes in Cash by (iiy) the Market Price of a share of Common Stock, subject to the next succeeding paragraph. The Company will shall not issue a fractional share of Common Stock in payment of the Purchase Price or Fundamental Change Purchase Price. Instead the Company will shall pay Cash for the current market value of the fractional share. The current market value of a fraction of a share shall be determined by multiplying the Market Price by such fraction and rounding the product to the nearest whole cent. It is understood that if a Holder elects to have more than one Security repurchasedNote purchased, the number of shares of Common Stock shall be based on the aggregate amount of Securities Notes to be repurchased. If the Company elects to repurchase the Securities by the issuance of shares of Common Stock, a Company Notice as provided in Section 3.08(e) shall be sent to the Holders (and to beneficial owners as required by applicable law) not later than the Company Notice Datepurchased. The Company's right to exercise its election to repurchase purchase the Securities Notes pursuant to Section 3.08 4.02 or Section 4.03 through the issuance of shares of Common Stock shall be conditioned upon:
(i) the Company having given timely Company Notice in accordance with Section 4.03(f) of its election to purchase all or a specified percentage of the Securities Notes with Common Stock as provided herein;
(ii) (A) (1) the registration of the shares of Common Stock to be issued in respect of the payment of the specified percentage of the Purchase Price or Fundamental Change Purchase Price under the Securities Act; unless Act of 1933 or (2) the issuance of the shares of Common Stock so issued can be freely resold by in an action which is exempt from the Holder (unless such Holder is the Company or an Affiliate registration requirements of the Company) receiving Securities Act of 1933 and which will not result in such shares without registration of Common Stock being deemed "restricted securities" under the Securities Act of 1933 or otherwise, and (B) the registration of the shares of Common Stock under the Exchange Act, to the extent required thereby;
(iii) any necessary qualification or registration under applicable state securities laws or the availability of an exemption from such qualification and registration; and
(iv) the receipt by the Trustee of an Officers' Certificate and an Opinion of Counsel each stating that (A) the terms of the issuance of the Common Stock are in conformity with this Supplemental Indenture and (B) the shares of Common Stock to be issued by the Company in payment of the specified percentage of the Purchase Price or Fundamental Change Purchase Price in respect of Securities Notes have been duly authorized and, when issued and delivered pursuant to the terms of this Supplemental Indenture in payment of the specified percentage of the Purchase Price or Fundamental Change Purchase Price in respect of SecuritiesNotes, will shall be validly issued, fully paid and nonassessable, and, to the best of such counsel's knowledge, free from preemptive rights, and in the case of such Officers' Certificate, stating that conditions (i), (ii) and (iii) above have been satisfied and, in the case of such Opinion of Counsel, stating that conditions condition (ii) and (iii) above have has been satisfied. Such Officers' Certificate shall also set forth the number of shares of Common Stock to be issued for each $1,000 Principal Amount of Securities Notes and the Sale Price of a share of Common Stock on each Trading Day during the period during which the Market Price is calculated and ending on the Repurchase Purchase Date or Fundamental Change Purchase Date. The Company may elect to pay the Purchase Price or Fundamental Change Purchase Price (or any portion thereof) in Common Stock only if the information necessary to calculate the Market Price is publicly reported in and the Common Stock is then listed on a daily newspaper of national circulationsecurities exchange or traded on the Nasdaq Stock Market (or any successor). If such any of the conditions set forth in this Section 4.03(e) are not satisfied with respect to a Holder or Holders prior to or on the Purchase Date or Fundamental Change Repurchase Date and the Company elected to repurchase purchase the Securities Notes to be repurchased purchased as of such Purchase Date or Fundamental Change Repurchase Date pursuant to Section 4.02 or this Section 3.08 4.03 through the issuance of shares of Common Stock, the Company shall pay the entire Purchase Price or Fundamental Change Purchase Price in respect of such Securities Notes of such Holder or Holders in Cash. Upon determination of the actual number of shares of Common Stock which the Holder of each $1,000 Principal Amount of the Notes shall receive, the Company shall provide Notice of such determination.
Appears in 1 contract
Payment by Issuance of Common Stock. At the option of the Company, the Purchase Price of Securities in respect of which a Repurchase Purchase Notice pursuant to Section 3.08(a) or Change in Control Purchase Notice has been given, or a specified percentage thereof, may be paid by the Company by the issuance of a number of shares of Common Stock equal to the quotient obtained by dividing (ia) the amount of Cash cash to which the Holders would have been entitled had the Company elected to pay all or such specified percentage, as the case may be, of the Purchase Price or Change in Control Purchase Price of such Securities in Cash cash by (iib) 0.975 multiplied by the Market Price of a share of Common Stock, subject to the next succeeding paragraph. The Company will shall not issue a fractional share of Common Stock in payment of the Purchase Price or Change in Control Purchase Price. Instead the Company will shall pay Cash cash for the current market value of the fractional share. The current market value of a fraction of a share shall be determined by multiplying the Market Price by such fraction and rounding the product to the nearest whole cent. It is understood that if a Holder elects to have more than one Security repurchasedpurchased, the number of shares of Common Stock shall be based on the aggregate amount of Securities to be repurchased. If the Company elects to repurchase the Securities by the issuance of shares of Common Stock, a Company Notice as provided in Section 3.08(e) shall be sent to the Holders (and to beneficial owners as required by applicable law) not later than the Company Notice Datepurchased. The Company's right to exercise its election to repurchase purchase the Securities pursuant to Section 3.08 or Section 3.09 through the issuance of shares of Common Stock shall be conditioned upon:
(ia) the Company having given timely Company Notice written notice in accordance with Section 3.08(c) of its election to purchase all or a specified percentage of the Securities with Common Stock as provided herein;
(iib) the (i)(A)the registration of the shares of Common Stock to be issued in respect of the payment of the specified percentage of the Purchase Price or Change in Control Purchase Price under the Securities Act; unless Act or (B) the issuance of the shares of Common Stock so issued can be freely resold by in an action which is exempt from the Holder (unless such Holder is the Company or an Affiliate registration requirements of the Company) receiving Securities Act and which will not result in such shares without registration of Common Stock being deemed "restricted securities" under the Securities Act or otherwise and (ii) the registration of the Common Stock under the Exchange Act;
(iiic) any necessary qualification or registration under applicable state securities laws or the availability of an exemption from such qualification and registration;
(d) the Common Stock (including the shares being issued in respect of the payment of the specified percentage of the Purchase Price or Change in Control Purchase Price) being listed as national securities exchange or traded on the Nasdaq National Market on the Purchase Date or the Change in Control Purchase Date; and
(ive) the receipt by the Trustee of an Officers' Certificate and an Opinion of Counsel each stating that (Ai) the terms of the issuance of the Common Stock are in conformity with this Indenture and (Bii) the shares of Common Stock to be issued by the Company in payment of the specified percentage of the Purchase Price or Change in Control Purchase Price in respect of Securities have been duly authorized and, when issued and delivered pursuant to the terms of this Indenture in payment of the specified percentage of the Purchase Price or Change in Control Purchase Price in respect of Securities, will shall be validly issued, fully paid and nonassessable, and, to the best of such counsel's knowledge, free from preemptive rights, and in the case of such Officers' Certificate, stating that conditions (ia), (iib), (c) and (iiid) above have been satisfied and, in the case of such Opinion of Counsel, stating that conditions (iib) and (iiic) above have been satisfied. Such Officers' Certificate shall also set forth the number of shares of Common Stock to be issued for each $1,000 Principal Amount of Securities and the Sale Price of a share of Common Stock on each Trading Day during the period during which the Market Price is calculated and ending on the Repurchase Date. The Company may elect to pay the Purchase Price (or any portion thereof) in Common Stock only if the information necessary to calculate the Market Price is reported in a daily newspaper of national circulation. If such conditions are not satisfied with respect to a Holder or Holders prior to or on the Repurchase Date and the Company elected to repurchase the Securities to be repurchased as of such Repurchase Date pursuant to this Section 3.08 through the issuance of shares of Common Stock, the Company shall pay the entire Purchase Price in respect of such Securities of such Holder or Holders in Cash.
Appears in 1 contract
Samples: Indenture (LNR Property Corp)
Payment by Issuance of Common Stock. At On each Purchase Date, at the option of the CompanyIssuers, the Purchase Price of Securities in respect of which a Repurchase Purchase Notice pursuant to Section 3.08(a) has been given, or a specified percentage thereof, may be paid by the Company by the issuance of a number of shares of Common Stock equal to the quotient obtained by dividing (i) the amount of Cash cash to which the Holders would have been entitled had the Company Issuers elected to pay all or such specified percentage, as the case may be, of the Purchase Price of such Securities in Cash cash by (ii) 0.95 times the Market Price of a share of Common Stock, subject to the next succeeding paragraph. The Company will not issue a fractional share of Common Stock in payment of the Purchase Price. Instead the Company Issuers will pay Cash cash for the current market value of the fractional share. The current market value of a fraction of a share shall be determined determined, to the nearest <PAGE> 25 1/1,000th of a share, by multiplying the Market Price by such fraction and rounding the product to the nearest whole cent. It is understood that if a Holder elects to have more than one Security repurchasedpurchased, the number of shares of Common Stock shall be based on the aggregate amount of Securities to be repurchased. If the Company elects to repurchase the Securities by the issuance of shares of Common Stock, a Company Notice as provided in Section 3.08(e) shall be sent to the Holders (and to beneficial owners as required by applicable law) not later than the Company Notice Datepurchased. The Company's Issuers' right to exercise its their election to repurchase purchase the Securities pursuant to Section 3.08 through the issuance by the Company of shares of Common Stock shall be conditioned upon:
(i) the Company Issuers' not having given their Issuers' Notice of an election to pay entirely in cash and their giving of timely Company Issuers' Notice of election to purchase all or a specified percentage of the Securities with Common Stock as provided herein;
(ii) the registration of the shares of Common Stock to be issued in respect of the payment of the specified percentage of the Purchase Price under the Securities Act or the Exchange Act; unless the shares of Common Stock so issued can be freely resold by the Holder (unless such Holder is the Company or an Affiliate of the Company) receiving such shares without registration under the Securities Act, in each case if required;
(iii) any necessary qualification or registration under applicable state securities laws or the availability of an exemption from such qualification and registration; and
(iv) the receipt by the Trustee of an Officers' Certificate and an Opinion of Counsel Counsel, each stating that (A) the terms of the issuance of the Common Stock are in conformity with this Indenture and (B) the shares of Common Stock to be issued by the Company in payment of the specified percentage of the Purchase Price in respect of Securities have been duly authorized and, when issued and delivered pursuant to the terms of this Indenture in payment of the specified percentage of the Purchase Price in respect of the Securities, will be validly issued, fully paid and nonassessablenon-assessable and, to the best of such counsel's knowledge, free from preemptive rights, and, in the case of such Officers' Certificate, stating that conditions (i), (ii) and (iii) above and the condition set forth in the second succeeding sentence have been satisfied and, in the case of such Opinion of Counsel, stating that conditions condition (ii) and (iii) above have has been satisfied. Such Officers' Certificate shall also set forth the number of shares of Common Stock to be issued for each $1,000 Principal Amount at Maturity of Securities and the Sale Price of a share of Common Stock on each Trading Day trading day during the period during which the Market Price is calculated and ending on the Repurchase Datecalculated. The Company Issuers may elect to pay the Purchase Price (or any portion thereof) in Common Stock only if the information necessary to calculate the Market Price is reported published in a daily newspaper of national circulation. If such the foregoing conditions are not satisfied with respect to a Holder or Holders prior to or the close of business on the Repurchase Purchase Date and the Company Issuers have elected to repurchase purchase the Securities to be repurchased as of such Repurchase Date pursuant to this Section 3.08 through the issuance by the Company of shares of Common Stock, the Company Issuers shall pay the entire Purchase Price in respect of such the Securities of such Holder or Holders in Cashcash.
Appears in 1 contract
Samples: Indenture (Jones Apparel Group Inc)
Payment by Issuance of Common Stock. At On each Fundamental Change Repurchase Date, at the option of the CompanyIssuer, the Purchase Fundamental Change Repurchase Price of Securities in respect of which a Fundamental Change Repurchase Notice pursuant to Section 3.08(a3.09(a) has been given, or a specified percentage thereof, may be paid by the Company by the issuance of a number of shares of Common Stock equal to the quotient obtained by dividing (i) the amount of Cash cash to which the Holders Securityholders would have been entitled had the Company Issuer elected to pay all or such specified percentage, as the case may be, of the Purchase Fundamental Change Repurchase Price of such Securities in Cash cash by (ii) the Market Price of a share of Common Stock, subject to the next succeeding paragraph. The Company will may not issue a fractional share of Common Stock in payment of the Purchase Fundamental Change Repurchase Price. Instead the Company will Issuer shall pay Cash cash for the current market value of the fractional share. The current market value of a fraction of a share shall be determined determined, to the nearest 1/1,000th of a share, by multiplying the Market Price by such fraction and rounding the product to the nearest whole cent. It is understood that if a Holder elects to have more than one Security repurchasedpurchased, the number of shares of Common Stock shall be based on the aggregate amount of Securities to be repurchased. If the Company elects to repurchase the Securities by the issuance of shares of Common Stock, a Company Notice as provided in Section 3.08(e) shall be sent to the Holders (and to beneficial owners as required by applicable law) not later than the Company Notice Datepurchased. The CompanyIssuer's right to exercise its election to repurchase purchase the Securities pursuant to Section 3.08 3.09 through the issuance of shares of Common Stock shall be conditioned upon:
(i) the Company Issuer's not having given a Fundamental Change Notice of an election to pay entirely in cash and its giving of timely Company Fundamental Change Notice of election to purchase all or a specified percentage of the Securities with Common Stock as provided herein;
(ii) the registration of the shares of Common Stock to be issued in respect of the payment of the specified percentage of the Purchase Fundamental Change Repurchase Price under the Securities Act and the Exchange Act; unless the shares of Common Stock so issued can be freely resold by the Holder (unless such Holder is the Company or an Affiliate of the Company) receiving such shares without registration under the Securities Act, in each case if required;
(iii) any necessary qualification or registration under applicable state securities laws or the availability of an exemption from such qualification and registration; and;
(iv) the receipt by the Trustee of an Officers' Certificate and an Opinion of Counsel Counsel, each stating that (A) the terms of the issuance of the Common Stock are in conformity with this Indenture and (B) the shares of Common Stock to be issued by the Company in payment of the specified percentage of the Purchase Fundamental Change Repurchase Price in respect of Securities have been duly authorized and, when issued and delivered pursuant to the terms of this Indenture in payment of the specified percentage of the Purchase Fundamental Change Repurchase Price in respect of the Securities, will be validly issued, fully paid and nonassessablenon-assessable and, to the best of such counsel's knowledge, free from preemptive rights, and, in the case of such Officers' Certificate, stating that conditions (i), (ii) and (iii) above and the condition set forth in the second succeeding sentence have been satisfied and, in the case of such Opinion of Counsel, stating that conditions (ii) and (iii) above have has been satisfied. Such Officers' Certificate shall also set forth ; and
(v) the number of shares of Common Stock to be issued for each $1,000 Principal Amount of Securities and being listed or quoted on a United States national securities exchange or traded on an established automated over-the-counter trading market in the Sale Price of a share of Common Stock on each Trading Day during the period during which the Market Price is calculated and ending on the Repurchase Date. The Company may elect to pay the Purchase Price (or any portion thereof) in Common Stock only if the information necessary to calculate the Market Price is reported in a daily newspaper of national circulation. If such conditions are not satisfied with respect to a Holder or Holders prior to or on the Repurchase Date and the Company elected to repurchase the Securities to be repurchased as of such Repurchase Date pursuant to this Section 3.08 through the issuance of shares of Common Stock, the Company shall pay the entire Purchase Price in respect of such Securities of such Holder or Holders in CashUnited States.
Appears in 1 contract
Samples: Indenture (Enron Corp/Or/)
