Purchase of Securities at Option of the Holder upon Change in Control. (a) If at any time that Securities remain outstanding there shall occur a Change in Control, Securities shall be purchased by the Company at the option of the Holders, as of the date that is 30 Business Days after the date of the Company's notice of the Change in Control pursuant to Section 3.02(b) (the "Change in Control Purchase Date") at a purchase price equal to 100% of the principal amount of the Securities, together with any accrued and unpaid interest to, but excluding, the Change in Control Purchase Date (the "Change in Control Purchase Price"), subject to satisfaction by or on behalf of any Holder of the requirements set forth in subsection (c) of this Section 3.02. (b) Within 30 Business Days after the occurrence of a Change in Control, the Company shall mail a written notice of the Change in Control to the Trustee and to each Holder (and to beneficial owners as required by applicable law). The notice shall include the form of a Change in Control Purchase Notice to be completed by the Holder and shall state: (1) the date of such Change in Control and information about the nature of such Change in Control; (2) the date by which the Change in Control Purchase Notice pursuant to this Section 3.02 must be given; (3) the Change in Control Purchase Date; (4) the Change in Control Purchase Price; (5) the Holder's right to require the Company to purchase the Securities; (6) whether the change in Control Purchase Price will be paid in cash or shares of Applicable Stock, or a combination thereof and, in the case of a combination, the percentage of each; (7) if the Company elects to pay the Change in Control Purchase Price in shares of Applicable Stock or a combination of cash and shares of Applicable Stock, that the number of shares of Applicable Stock each Holder will receive will equal the quotient obtained by dividing the amount of the Change in Control Purchase Price to be paid in shares of Applicable Stock by 97% of the average of the Sale Price of the Applicable Stock for the five (5) Trading Days immediately preceding the second Business Day immediately preceding the Change in Control Purchase Date; (8) if the Company elects to pay the Change in Control Purchase Price in shares of Applicable Stock or a combination of cash and shares of Applicable Stock, the method of calculating the Sale Price of the shares of Applicable Stock; (9) that because the Sale Price of the shares of Applicable Stock will be determined prior to the Change in Control Purchase Date, Holders of the Securities will bear the market risk that the shares of Applicable Stock to be received will decline in value between the date such Sale Price is determined and the Change in Control Purchase Date; (10) briefly, the conversion rights of the Securities; (11) the name and address of each Paying Agent and Conversion Agent; (12) the Conversion Price and any adjustments thereto; (13) the CUSIP number of the Securities; (14) that Securities as to which a Change in Control Purchase Notice has been given may be converted into Common Stock pursuant to Article IV of this Indenture only to the extent that the Change in Control Purchase Notice has been withdrawn in accordance with the terms of this Indenture; (15) the procedures that the Holder must follow to exercise rights under this Section 3.02; (16) the procedures for withdrawing a Change in Control Purchase Notice, including a form of notice of withdrawal; and (17) that the Holder must satisfy the requirements set forth in the Securities in order to convert the Securities. If any of the Securities is in the form of a Global Security, then the Company shall modify such notice to the extent necessary to accord with the procedures of the Depositary applicable to the repurchase of Global Securities. (c) A Holder may exercise its rights specified in subsection (a) of this Section 3.02 upon delivery of a written notice (which shall be in substantially the form included in Exhibit A hereto and which may be delivered by letter, overnight courier, hand delivery, facsimile transmission or in any other written form and, in the case of Global Securities, may be delivered electronically or by other means in accordance with the Depositary's customary procedures) of the exercise of such rights (a "Change in Control Purchase Notice") to any Paying Agent at any time prior to the close of business on the Business Day immediately preceding the Change in Control Purchase Date. The delivery of such Security to any Paying Agent (together with all necessary endorsements) at the office of such Paying Agent shall be a condition to the receipt by the Holder of the Change in Control Purchase Price therefor. The Company shall purchase from the Holder thereof, pursuant to this Section 3.02, a portion of a Security if the principal amount of such portion is $1,000 or an integral multiple of $1,000. Provisions of the Indenture that apply to the purchase of all of a Security pursuant to Sections 3.02 through 3.08 also apply to the purchase of such portion of such Security. Notwithstanding anything herein to the contrary, any Holder delivering to the Paying Agent the Change in Control Purchase Notice contemplated by this subsection (c) shall have the right to withdraw such Change in Control Purchase Notice in whole or in a portion thereof that is a principal amount of $1,000 or in an integral multiple thereof at any time prior to the close of business on the Business Day immediately preceding the Change in Control Purchase Date by delivery of a written notice of withdrawal to the Paying Agent in accordance with Section 3.03. A Change in Control Purchase Notice shall be deemed to be withdrawn as to some or all of the Securities that a Holder has notified the Paying Agent that it has elected that the Company purchase if (1) the Company has elected pursuant to Section 3.04 to pay the Change in Control Purchase Price in part or in whole in Applicable Stock, (2) the Company has failed to satisfy the conditions in Section 3.04(d) and (3) such Holder has made the election in its Change in Control Purchase Notice to withdraw its Change in Control Purchase Notice in the event that (1) and (2) above occur. If a Holder fails to indicate such Holder's election in such Holder's Change in Control Purchase Notice and the Company has elected in whole or in part to pay the Change in Control Purchase Price in Applicable Stock but fails to satisfy the conditions in Section 3.04(d), such Holder shall be deemed to have elected to receive cash in respect of the Change in Control Purchase Price otherwise payable in Applicable Stock. The Paying Agent shall promptly notify the Company of the receipt by it of any Change in Control Purchase Notice or written withdrawal thereof. Anything herein to the contrary notwithstanding, in the case of Global Securities, any Change in Control Purchase Notice may be delivered or withdrawn and such Securities may be surrendered or delivered for purchase in accordance with the Applicable Procedures as in effect from time to time.
Appears in 2 contracts
Samples: Indenture (Iac/Interactivecorp), Indenture (Ask Jeeves Inc)
Purchase of Securities at Option of the Holder upon Change in Control. (a) If at any time that Securities remain outstanding there shall occur have occurred a Change in Control, Securities shall be purchased repurchased by the Company Company, at the option of the HoldersHolder thereof, as of at a purchase price in cash (the date that is 30 Business Days after the date of the Company's notice of the "Change in Control pursuant Purchase Price") equal to Section 3.02(b) the principal amount plus accrued but unpaid interest (including Contingent Interest and Liquidated Damages, if any), thereon, up to but not including the date (the "Change in Control Purchase Date") at a purchase price equal to 100% of fixed by the principal amount of Company that is not less than 30 days nor more than 45 days after the Securities, together with any accrued and unpaid interest to, but excluding, date the Change in Control Purchase Date (the "Change in Control Purchase Price")Company Notice is given, subject to satisfaction by or on behalf of any the Holder of the requirements set forth in subsection (c) of this Section 3.023.09(c).
(b) Within 30 The Company, or at its request (which must be received by the Trustee at least three Business Days after (or such lesser period as agreed to by the Trustee) prior to the date the Trustee is requested to give such notice as described below) the Trustee in the name of and at the expense of the Company, shall mail to all Holders of record of the Securities a notice (a "Company Change in Control Notice") of the occurrence of a Change in Control, the Company shall mail a written notice Control and of the Change in Control to repurchase right arising as a result thereof, including the Trustee and to each Holder (and to beneficial owners as information required by applicable law). The notice shall include Section 3.08(b) hereof, not less than 30 days after the form of a Change in Control Purchase Notice to be completed by the Holder and shall state:
(1) the date of such Change in Control and information about the nature occurrence of such Change in Control;
(2) the date by which the Change in Control Purchase Notice pursuant to this Section 3.02 must be given;
(3) the Change in Control Purchase Date;
(4) the Change in Control Purchase Price;
(5) the Holder's right to require the . The Company to purchase the Securities;
(6) whether the change in Control Purchase Price will be paid in cash or shares of Applicable Stock, or a combination thereof and, in the case of a combination, the percentage of each;
(7) if the Company elects to pay the Change in Control Purchase Price in shares of Applicable Stock or a combination of cash and shares of Applicable Stock, that the number of shares of Applicable Stock each Holder will receive will equal the quotient obtained by dividing the amount of the Change in Control Purchase Price to be paid in shares of Applicable Stock by 97% of the average of the Sale Price of the Applicable Stock for the five (5) Trading Days immediately preceding the second Business Day immediately preceding the Change in Control Purchase Date;
(8) if the Company elects to pay the Change in Control Purchase Price in shares of Applicable Stock or a combination of cash and shares of Applicable Stock, the method of calculating the Sale Price of the shares of Applicable Stock;
(9) that because the Sale Price of the shares of Applicable Stock will be determined prior shall promptly furnish to the Change in Control Purchase Date, Holders Trustee a copy of the Securities will bear the market risk that the shares of Applicable Stock to be received will decline in value between the date such Sale Price is determined and the Change in Control Purchase Date;
(10) briefly, the conversion rights of the Securities;
(11) the name and address of each Paying Agent and Conversion Agent;
(12) the Conversion Price and any adjustments thereto;
(13) the CUSIP number of the Securities;
(14) that Securities as to which a Change in Control Purchase Notice has been given may be converted into Common Stock pursuant to Article IV of this Indenture only to the extent that the Change in Control Purchase Notice has been withdrawn in accordance with the terms of this Indenture;
(15) the procedures that the Holder must follow to exercise rights under this Section 3.02;
(16) the procedures for withdrawing a Change in Control Purchase Notice, including a form of notice of withdrawal; and
(17) that the Holder must satisfy the requirements set forth in the Securities in order to convert the Securities. If any of the Securities is in the form of a Global Security, then the Company shall modify such notice to the extent necessary to accord with the procedures of the Depositary applicable to the repurchase of Global Securitiesnotice.
(c) A Holder may exercise its rights specified in subsection (a) For a Security to be so repurchased at the option of this Section 3.02 upon delivery of a written notice (which shall be in substantially the Holder, the Paying Agent must receive such Security with the form included entitled "Option to Elect Repurchase Upon a Change in Exhibit A hereto and which may be delivered by letter, overnight courier, hand delivery, facsimile transmission or in any other written form and, in the case of Global Securities, may be delivered electronically or by other means in accordance with the Depositary's customary procedures) of the exercise of such rights Control" (a "Change in Control Purchase Notice") to any Paying Agent at any time prior to the close of business on the Business Day immediately preceding reverse thereof duly completed, together with such Security duly endorsed for transfer, on or before the Change in Control Purchase Date. The delivery All questions as to the validity, eligibility (including time of such receipt) and acceptance of any Security to any Paying Agent (together with all necessary endorsements) at the office of such Paying Agent for redemption shall be a condition to the receipt determined by the Holder of the Change in Control Purchase Price thereforCompany, whose determination shall be final and binding. The Company shall purchase from the Holder thereof, pursuant to this Section 3.023.09, a portion of a Security if the principal amount of such portion is $1,000 or an integral multiple of $1,000. Provisions of the this Indenture that apply to the purchase of all of a Security pursuant to Sections 3.02 through 3.08 also apply to the purchase of such portion of such Security. Any purchase by the Company contemplated pursuant to the provisions of this Section 3.09 shall be consummated by the delivery of the consideration to be received by the Holder promptly following the later of the Change in Control Purchase Date and the time of delivery of the Security to the Paying Agent in accordance with this Section 3.09. Notwithstanding anything herein to the contrary, any Holder delivering to the Paying Agent the Change in Control Purchase Notice contemplated by this subsection (cSection 3.09(c) shall have the right to withdraw such Change in Control Purchase Notice in whole or in a portion thereof that is a principal amount of $1,000 or in an integral multiple thereof at any time prior to the close of business on the Business Day immediately preceding the Change in Control Purchase Date by delivery of a written notice of withdrawal to the Paying Agent in accordance with Section 3.03. A Change in Control Purchase Notice shall be deemed to be withdrawn as to some or all of the Securities that a Holder has notified the Paying Agent that it has elected that the Company purchase if (1) the Company has elected pursuant to Section 3.04 to pay the Change in Control Purchase Price in part or in whole in Applicable Stock, (2) the Company has failed to satisfy the conditions in Section 3.04(d) and (3) such Holder has made the election in its Change in Control Purchase Notice to withdraw its Change in Control Purchase Notice in the event that (1) and (2) above occur. If a Holder fails to indicate such Holder's election in such Holder's Change in Control Purchase Notice and the Company has elected in whole or in part to pay the Change in Control Purchase Price in Applicable Stock but fails to satisfy the conditions in Section 3.04(d), such Holder shall be deemed to have elected to receive cash in respect of the Change in Control Purchase Price otherwise payable in Applicable Stock3.10. The Paying Agent shall promptly notify the Company of the receipt by it of any Change in Control Purchase Notice or written withdrawal thereof. Anything Notwithstanding anything herein to the contrary notwithstandingcontrary, in the case of Global Securities, any Company's obligations pursuant to this Section 3.09 shall be satisfied if a third party makes an offer to repurchase outstanding Securities after a Change in Control Purchase Notice may be delivered or withdrawn in the manner and such Securities may be surrendered or delivered for purchase at the times and otherwise in accordance compliance in all material respects with the Applicable Procedures as in effect from time requirements of this Section 3.09 and purchases all Securities properly tendered and not withdrawn pursuant to timethe requirements of this Section 3.09.
Appears in 2 contracts
Purchase of Securities at Option of the Holder upon Change in Control. (a) If at any time time, prior to March 1, 2010, that Securities remain outstanding there shall occur have occurred a Change in Control, Securities shall be purchased repurchased by the Company Company, at the option of the HoldersHolder thereof, as of at a purchase price (the date that is 30 Business Days after the date of the Company's notice of the "Change in Control pursuant Purchase Price") equal to Section 3.02(b) the principal amount plus accrued but unpaid interest (including contingent interest, if any), and Liquidated Damages, if any, thereon, up to but not including the date (the "Change in Control Purchase Date") at a purchase price equal to 100% of fixed by the principal amount of Company that is not less than 30 days nor more than 45 days after the Securities, together with any accrued and unpaid interest to, but excluding, date the Change in Control Purchase Date (the "Change in Control Purchase Price")Company Notice is given, subject to satisfaction by or on behalf of any the Holder of the requirements set forth in subsection (c) of this Section 3.023.09(c).
(b) Within 30 The Company, or at its request (which must be received by the Trustee at least three Business Days after (or such lesser period as agreed to by the Trustee) prior to the date the Trustee is requested to give such notice as described below) the Trustee in the name of and at the expense of the Company, shall mail to all Holders of record of the Securities a notice (a "Company Change in Control Notice") of the occurrence of a Change in Control, the Company shall mail a written notice Control and of the Change in Control to repurchase right arising as a result thereof, including the Trustee and to each Holder (and to beneficial owners as information required by applicable law). The notice shall include Section 3.08(c) hereof, not less than 30 days after the form of a Change in Control Purchase Notice to be completed by the Holder and shall state:
(1) the date of such Change in Control and information about the nature occurrence of such Change in Control;
(2) the date by which the Change in Control Purchase Notice pursuant to this Section 3.02 must be given;
(3) the Change in Control Purchase Date;
(4) the Change in Control Purchase Price;
(5) the Holder's right to require the . The Company to purchase the Securities;
(6) whether the change in Control Purchase Price will be paid in cash or shares of Applicable Stock, or a combination thereof and, in the case of a combination, the percentage of each;
(7) if the Company elects to pay the Change in Control Purchase Price in shares of Applicable Stock or a combination of cash and shares of Applicable Stock, that the number of shares of Applicable Stock each Holder will receive will equal the quotient obtained by dividing the amount of the Change in Control Purchase Price to be paid in shares of Applicable Stock by 97% of the average of the Sale Price of the Applicable Stock for the five (5) Trading Days immediately preceding the second Business Day immediately preceding the Change in Control Purchase Date;
(8) if the Company elects to pay the Change in Control Purchase Price in shares of Applicable Stock or a combination of cash and shares of Applicable Stock, the method of calculating the Sale Price of the shares of Applicable Stock;
(9) that because the Sale Price of the shares of Applicable Stock will be determined prior shall promptly furnish to the Change in Control Purchase Date, Holders Trustee a copy of the Securities will bear the market risk that the shares of Applicable Stock to be received will decline in value between the date such Sale Price is determined and the Change in Control Purchase Date;
(10) briefly, the conversion rights of the Securities;
(11) the name and address of each Paying Agent and Conversion Agent;
(12) the Conversion Price and any adjustments thereto;
(13) the CUSIP number of the Securities;
(14) that Securities as to which a Change in Control Purchase Notice has been given may be converted into Common Stock pursuant to Article IV of this Indenture only to the extent that the Change in Control Purchase Notice has been withdrawn in accordance with the terms of this Indenture;
(15) the procedures that the Holder must follow to exercise rights under this Section 3.02;
(16) the procedures for withdrawing a Change in Control Purchase Notice, including a form of notice of withdrawal; and
(17) that the Holder must satisfy the requirements set forth in the Securities in order to convert the Securities. If any of the Securities is in the form of a Global Security, then the Company shall modify such notice to the extent necessary to accord with the procedures of the Depositary applicable to the repurchase of Global Securitiesnotice.
(c) A Holder may exercise its rights specified in subsection (a) For a Security to be so repurchased at the option of this Section 3.02 upon delivery of a written notice (which shall be in substantially the Holder, the Paying Agent must receive such Security with the form included entitled "Option to Elect Repurchase Upon a Change in Exhibit A hereto and which may be delivered by letter, overnight courier, hand delivery, facsimile transmission or in any other written form and, in the case of Global Securities, may be delivered electronically or by other means in accordance with the Depositary's customary procedures) of the exercise of such rights Control" (a "Change in Control Purchase Notice") to any Paying Agent at any time prior to the close of business on the Business Day immediately preceding reverse thereof duly completed, together with such Security duly endorsed for transfer, on or before the Change in Control Purchase Date. The delivery All questions as to the validity, eligibility (including time of such receipt) and acceptance of any Security to any Paying Agent (together with all necessary endorsements) at the office of such Paying Agent for redemption shall be a condition to the receipt determined by the Holder of the Change in Control Purchase Price thereforCompany, whose determination shall be final and binding. The Company shall purchase from the Holder thereof, pursuant to this Section 3.023.09, a portion of a Security if the principal amount of such portion is $1,000 or an integral multiple of $1,000. Provisions of the this Indenture that apply to the purchase of all of a Security pursuant to Sections 3.02 through 3.08 also apply to the purchase of such portion of such Security. Any purchase by the Company contemplated pursuant to the provisions of this Section 3.09 shall be consummated by the delivery of the consideration to be received by the Holder promptly following the later of the Change in Control Purchase Date and the time of delivery of the Security to the Paying Agent in accordance with this Section 3.09. Notwithstanding anything herein to the contrary, any Holder delivering to the Paying Agent the Change in Control Purchase Notice contemplated by this subsection (cSection 3.09(c) shall have the right to withdraw such Change in Control Purchase Notice in whole or in a portion thereof that is a principal amount of $1,000 or in an integral multiple thereof at any time prior to the close of business on the Business Day immediately preceding the Change in Control Purchase Date by delivery of a written notice of withdrawal to the Paying Agent in accordance with Section 3.03. A Change in Control Purchase Notice shall be deemed to be withdrawn as to some or all of the Securities that a Holder has notified the Paying Agent that it has elected that the Company purchase if (1) the Company has elected pursuant to Section 3.04 to pay the Change in Control Purchase Price in part or in whole in Applicable Stock, (2) the Company has failed to satisfy the conditions in Section 3.04(d) and (3) such Holder has made the election in its Change in Control Purchase Notice to withdraw its Change in Control Purchase Notice in the event that (1) and (2) above occur. If a Holder fails to indicate such Holder's election in such Holder's Change in Control Purchase Notice and the Company has elected in whole or in part to pay the Change in Control Purchase Price in Applicable Stock but fails to satisfy the conditions in Section 3.04(d), such Holder shall be deemed to have elected to receive cash in respect of the Change in Control Purchase Price otherwise payable in Applicable Stock3.10. The Paying Agent shall promptly notify the Company of the receipt by it of any Change in Control Purchase Notice or written withdrawal thereof. Anything Notwithstanding anything herein to the contrary notwithstandingcontrary, in the case of Global Securities, any Company's obligations pursuant to this Section 3.09 shall be satisfied if a third party makes an offer to repurchase outstanding Securities after a Change in Control Purchase Notice may be delivered or withdrawn in the manner and such Securities may be surrendered or delivered for purchase at the times and otherwise in accordance compliance in all material respects with the Applicable Procedures as in effect from time requirements of this Section 3.09 and purchases all Securities properly tendered and not withdrawn pursuant to timethe requirements of this Section 3.09.
Appears in 1 contract
Samples: Indenture (LNR Property Corp)
Purchase of Securities at Option of the Holder upon Change in Control. (a) If at any time that Securities remain outstanding there shall occur have occurred a Change in Control, Securities shall be purchased by the Company at the option of the HoldersHolder thereof, as of the date that is 30 Business Days after the date of the Company's notice of the Change in Control pursuant to Section 3.02(b) (the "Change in Control Purchase Date") at a purchase price equal to 100% of the principal amount of the Securities, together with any accrued and unpaid interest to, but excluding, the Change in Control Purchase Date (the "Change in Control Purchase Price") equal to the principal amount thereof plus accrued interest to the date on which the Change in Control Purchase Price is deposited pursuant to Section 6.12 (which shall be a Business Day within 30 to 60 days from the date notice pursuant to Section 6.10(b) is mailed, the "Change in Control Purchase Date"), subject to satisfaction by or on behalf of any the Holder of the requirements set forth in subsection Section 6.10(c) and the condition precedent set forth in the next succeeding sentence. It shall be a condition precedent to such right of any Holder to require the repurchase of Securities that prior thereto, and prior to the Company giving notice to Holders provided in Section 6.10(b), the Company shall have (ci) repaid in full in cash all Specified Bank Debt or (ii) obtained the requisite consent of this Section 3.02holders of Specified Bank Debt to permit the repurchase of Securities (treating such repurchase as a transaction requiring such consent).
(b) Within 30 Business Days days after the occurrence of a Change in Control, the Company shall mail a written notice of the Change in Control by first-class mail to the Trustee and to each Holder (and to beneficial owners as required by applicable law) and shall cause a copy of such notice to be published in a daily newspaper of national circulation (which shall be The Wall Street Journal unless it is not then so circulated). The notice shall include the form of a Change in Control Purchase Notice (as defined below) to be completed by the Holder and shall state:
(1) the date of such Change in Control and information about and, briefly, the nature of events causing such Change in Control;
(2) the date by which the Change in Control Purchase Notice pursuant to this Section 3.02 6.10 must be given;
(3) the Change in Control Purchase Date;
(4) the Change in Control Purchase Price;
(5) the Holder's right to require the Company to purchase the Securities;
(6) whether the change in Control Purchase Price will be paid in cash or shares of Applicable Stock, or a combination thereof and, in the case of a combination, the percentage of each;
(7) if the Company elects to pay the Change in Control Purchase Price in shares of Applicable Stock or a combination of cash and shares of Applicable Stock, that the number of shares of Applicable Stock each Holder will receive will equal the quotient obtained by dividing the amount of the Change in Control Purchase Price to be paid in shares of Applicable Stock by 97% of the average of the Sale Price of the Applicable Stock for the five (5) Trading Days immediately preceding the second Business Day immediately preceding the Change in Control Purchase Date;
(8) if the Company elects to pay the Change in Control Purchase Price in shares of Applicable Stock or a combination of cash and shares of Applicable Stock, the method of calculating the Sale Price of the shares of Applicable Stock;
(9) that because the Sale Price of the shares of Applicable Stock will be determined prior to the Change in Control Purchase Date, Holders of the Securities will bear the market risk that the shares of Applicable Stock to be received will decline in value between the date such Sale Price is determined and the Change in Control Purchase Date;
(10) briefly, the conversion rights of the Securities;
(116) the name and address of each the Paying Agent and the Conversion Agent;
(127) the Conversion Price and any adjustments thereto;
(13) the CUSIP number of the Securities;
(14) 8) that Securities as to which a Change in Control Purchase Notice has been given may be converted into Common Stock pursuant to Article IV of this Indenture only to the extent that the Change in Control Purchase Notice has been withdrawn in accordance with the terms of this Indenture;
(159) that Securities not delivered for purchase by the Company shall continue to accrue interest;
(10) that, unless the Company defaults in the payment of the Change in Control Purchase Price, any Securities purchased by the Company pursuant to this Section 6.10 shall cease to accrue interest after the Change in Control Purchase Date;
(11) that the Holders accepting this purchase offer shall be required to surrender the Securities to the Paying Agent, at the address specified in the notice, prior to the close of business on the Business Day immediately preceding the Change in Control Purchase Date;
(12) the procedures that the Holder must follow to exercise rights under this Section 3.026.10;
(1613) the procedures for withdrawing a Change in Control Purchase Notice, including a form of notice of withdrawal; and
(1714) that the Holder must satisfy the requirements set forth in the Securities in order to convert the Securities. If any of the Securities is in the form of a Global Security, then the Company shall modify such notice to the extent necessary to accord with the procedures of the Depositary applicable to the repurchase of Global Securities.
(c) A Holder may exercise its rights specified in subsection Section 6.10
(a) of this Section 3.02 upon delivery of a written notice (which shall be in substantially the form included in Exhibit A hereto and which may be delivered by letter, overnight courier, hand delivery, facsimile transmission or in any other written form and, in the case of Global Securities, may be delivered electronically or by other means in accordance with the Depositary's customary procedures) of the exercise of such rights (a "Change in Control Purchase Notice") to any the Paying Agent at any time prior to the close of business on the Business Day immediately preceding the Change in Control Purchase Date, stating:
(1) the certificate number of each Security that the Holder will deliver to be purchased;
(2) the portion of the principal amount of each Security that the Holder will deliver to be purchased, which portion must be $1,000 or an integral multiple thereof; and
(3) that such Security shall be purchased pursuant to the terms and conditions specified in this Indenture. The delivery of such Security to any the Paying Agent prior to the close of business on the Business Day immediately preceding the Change in Control Purchase Date (together with all necessary endorsements) at the office of such the Paying Agent shall be a condition to the receipt by the Holder of the Change in Control Purchase Price therefor; provided, however, that such Change in Control Purchase Price shall be so paid pursuant to this Section 6.10 only if the Security so delivered to the Paying Agent shall conform in all respects to the description thereof set forth in the related Change in Control Purchase Notice. The Company shall purchase from the Holder thereof, pursuant to this Section 3.026.10, a portion of a Security if the principal amount of such portion is $1,000 or an integral multiple of $1,000. Provisions of the this Indenture that apply to the purchase of all of a Security pursuant to Sections 3.02 6.10 through 3.08 6.15 also apply to the purchase of such portion of such Security. Notwithstanding anything herein to the contrary, any Holder delivering to the Paying Agent the Change in Control Purchase Notice contemplated by this subsection (cSection 6.10(c) shall have the right to withdraw such Change in Control Purchase Notice in whole or in a portion thereof that is a principal amount of $1,000 or in an integral multiple thereof at any time prior to the close of business on the Business Day immediately preceding the Change in Control Purchase Date by delivery of a written notice of withdrawal to the Paying Agent in accordance with Section 3.03. A Change in Control Purchase Notice shall be deemed to be withdrawn as to some or all of the Securities that a Holder has notified the Paying Agent that it has elected that the Company purchase if (1) the Company has elected pursuant to Section 3.04 to pay the Change in Control Purchase Price in part or in whole in Applicable Stock, (2) the Company has failed to satisfy the conditions in Section 3.04(d) and (3) such Holder has made the election in its Change in Control Purchase Notice to withdraw its Change in Control Purchase Notice in the event that (1) and (2) above occur. If a Holder fails to indicate such Holder's election in such Holder's Change in Control Purchase Notice and the Company has elected in whole or in part to pay the Change in Control Purchase Price in Applicable Stock but fails to satisfy the conditions in Section 3.04(d), such Holder shall be deemed to have elected to receive cash in respect of the Change in Control Purchase Price otherwise payable in Applicable Stock6.11. The Paying Agent shall promptly notify the Company of the receipt by it of any Change in Control Purchase Notice or written withdrawal thereof. Anything herein to the contrary notwithstanding, in the case of Global Securities, any Change in Control Purchase Notice may be delivered or withdrawn and such Securities may be surrendered or delivered for purchase in accordance with the Applicable Procedures as in effect from time to time.
Appears in 1 contract
Purchase of Securities at Option of the Holder upon Change in Control. (a) If at any time that the Securities remain outstanding there shall occur have occurred a Change in Control, all or any portion of the Securities of any Holder equal to $1,000 or a integral multiple of $1,000, shall be purchased by the Company Company, at the option of the Holderssuch Holder, as of the date that is 30 Business Days after the date of the Company's notice of the Change in Control pursuant to Section 3.02(b) (the "Change in Control Purchase Date") at a purchase price equal to 100% of the principal amount of the SecuritiesSecurities to be purchased, together with any interest accrued and unpaid interest to, but excluding, the Change in Control Purchase Date (the "Change in Control Purchase Price"), subject to satisfaction by or on behalf of any Holder the date (the "Change in Control Purchase Date") that is 45 days after the date of the requirements set forth Change in subsection (c) Control Purchase Notice; provided, however, if the Change in Control Purchase Date falls after a Regular Record Date and on or before an Interest Payment Date, then interest on the Securities shall be payable to the Holders in whose name the Securities are registered at the close of this Section 3.02business on such Regular Record Date.
(b) Within 30 Business Days after the occurrence of a Change Whenever in Controlthis Indenture (including Sections 2.1, the Company shall mail a written notice of the Change 8.1 and 8.7 hereof) or in Control to the Trustee and to each Holder (and to beneficial owners as required by applicable law). The notice shall include the form of Securities there is a Change reference, in Control Purchase Notice any context, to the principal of any Securities as of any time, such reference shall be completed by the Holder and shall state:
(1) the date of such Change in Control and information about the nature of such Change in Control;
(2) the date by which deemed to include reference to the Change in Control Purchase Notice pursuant Price payable in respect to this Section 3.02 must be given;
(3) such Securities to the extent that such Change in Control Purchase Date;
(4) the Change in Control Purchase Price;
(5) the Holder's right to require the Company to purchase the Securities;
(6) whether the change in Control Purchase Price will is, was or would be paid in cash or shares so payable at such time, and express mention of Applicable Stock, or a combination thereof and, in the case of a combination, the percentage of each;
(7) if the Company elects to pay the Change in Control Purchase Price in shares any provision of Applicable Stock or a combination of cash and shares of Applicable Stock, that the number of shares of Applicable Stock each Holder will receive will equal the quotient obtained by dividing the amount of the Change in Control Purchase Price to this Indenture shall not be paid in shares of Applicable Stock by 97% of the average of the Sale Price of the Applicable Stock for the five (5) Trading Days immediately preceding the second Business Day immediately preceding the Change in Control Purchase Date;
(8) if the Company elects to pay construed as excluding the Change in Control Purchase Price in shares of Applicable Stock or a combination of cash and shares of Applicable Stock, the method of calculating the Sale Price of the shares of Applicable Stock;
(9) that because the Sale Price of the shares of Applicable Stock will be determined prior to the Change in Control Purchase Date, Holders of the Securities will bear the market risk that the shares of Applicable Stock to be received will decline in value between the date such Sale Price is determined and the Change in Control Purchase Date;
(10) briefly, the conversion rights of the Securities;
(11) the name and address of each Paying Agent and Conversion Agent;
(12) the Conversion Price and any adjustments thereto;
(13) the CUSIP number of the Securities;
(14) that Securities as to which a Change in Control Purchase Notice has been given may be converted into Common Stock pursuant to Article IV those provisions of this Indenture only to the extent that the Change in Control Purchase Notice has been withdrawn in accordance with the terms of this Indenture;
(15) the procedures that the Holder must follow to exercise rights under this Section 3.02;
(16) the procedures for withdrawing a Change in Control Purchase Notice, including a form of notice of withdrawal; and
(17) that the Holder must satisfy the requirements set forth in the Securities in order to convert the Securities. If any of the Securities when such express mention is in the form of a Global Security, then the Company shall modify such notice to the extent necessary to accord with the procedures of the Depositary applicable to the repurchase of Global Securitiesnot made.
(c) A Holder may exercise its rights specified in subsection (a) of this Section 3.02 upon delivery of a written notice (which shall be in substantially the form included in Exhibit A hereto and which may be delivered by letter, overnight courier, hand delivery, facsimile transmission or in any other written form and, in the case of Global Securities, may be delivered electronically or by other means in accordance with the Depositary's customary procedures) of the exercise of such rights (a "Change in Control Purchase Notice") to Control" of the Company, or any Paying Agent at any time prior successor entity who is subject to the close terms of business on the Business Day immediately preceding the Change in Control Purchase Date. The delivery of such Security to any Paying Agent (together with all necessary endorsements) at the office of such Paying Agent shall be a condition to the receipt by the Holder of the Change in Control Purchase Price therefor. The Company shall purchase from the Holder thereofthis Indenture, pursuant to this Section 3.02, a portion of a Security if the principal amount of such portion is $1,000 or an integral multiple of $1,000. Provisions of the Indenture that apply to the purchase of all of a Security pursuant to Sections 3.02 through 3.08 also apply to the purchase of such portion of such Security. Notwithstanding anything herein to the contrary, any Holder delivering to the Paying Agent the Change in Control Purchase Notice contemplated by this subsection (c) shall have the right to withdraw such Change in Control Purchase Notice in whole or in a portion thereof that is a principal amount of $1,000 or in an integral multiple thereof at any time prior to the close of business on the Business Day immediately preceding the Change in Control Purchase Date by delivery of a written notice of withdrawal to the Paying Agent in accordance with Section 3.03. A Change in Control Purchase Notice shall be deemed to be withdrawn as to some or all of the Securities that a Holder has notified the Paying Agent that it has elected that the Company purchase if (1) the Company has elected pursuant to Section 3.04 to pay the Change in Control Purchase Price in part or in whole in Applicable Stock, (2) the Company has failed to satisfy the conditions in Section 3.04(d) and (3) such Holder has made the election in its Change in Control Purchase Notice to withdraw its Change in Control Purchase Notice in the event that (1) and (2) above occur. If a Holder fails to indicate such Holder's election in such Holder's Change in Control Purchase Notice and the Company has elected in whole or in part to pay the Change in Control Purchase Price in Applicable Stock but fails to satisfy the conditions in Section 3.04(d), such Holder shall be deemed to have elected to receive cash in respect occurred at such time after the original issuance of Securities as any of the Change following events shall occur:
(1) the acquisition by any person of beneficial ownership, directly or indirectly, through a purchase, merger (except a merger or consolidation described in Control Purchase Price otherwise payable in Applicable Stock. The Paying Agent shall promptly notify subclause (2) of this Subsection) or other acquisition transaction or series of transactions, of shares of the Capital Stock of the Company entitling that person to exercise 50% or more of the receipt total voting power of all shares of such Capital Stock entitled to vote generally in elections of directors, other than any acquisition by it the Company, any of its Subsidiaries or any Change employee benefit plans of the Company;
(2) any consolidation or merger of the Company with or into any other person, any merger of another person into the Company, or any conveyance, transfer, sale, lease or other disposition of all or substantially all of the Company's properties and assets to another person, other than:
(A) any transaction (i) that does not result in Control Purchase Notice any reclassification, conversion, exchange or written withdrawal thereof. Anything herein cancellation of outstanding shares of Capital Stock of the Company and (ii) pursuant to which holders of the Capital Stock of the Company immediately prior to the contrary notwithstandingtransaction are entitled to exercise, directly or indirectly, 50% or more of the total voting power of all shares of the Capital Stock of the Company entitled to vote generally in the case election of Global Securitiesdirectors of the continuing or surviving person immediately after the transaction;
(B) any merger solely for the purpose of changing the Company's jurisdiction of incorporation and resulting in a reclassification, conversion or exchange of outstanding shares of Common Stock solely into shares of common stock of the surviving entity; or
(C) any Change merger or consolidation where all of the consideration (excluding cash payments for fractional shares and cash payments made pursuant to dissenters' appraisal rights) consists of shares of common stock traded on a national securities exchange or quoted on the Nasdaq National Market, or will be so traded or quoted immediately following such merger or consolidation, and as a result of such merger or consolidation the Securities become convertible solely into such common stock.
(3) during any consecutive two-year period, individuals who at the beginning of that two-year period constituted the Board of Directors (together with any new directors whose election to the Board of Directors, or whose nomination for election by the stockholders of the Company, was approved by a vote of a majority of the directors then still in Control Purchase Notice may office who were either directors at the beginning of such period or whose election or nomination for election were previously so approved) cease to constitute a majority of the Board of Directors then in office; or
(4) a resolution is passed by the Company's stockholders approving a plan of liquidation or dissolution of the Company other than a transaction which complies with the provisions described in Article 7 of this Indenture.
(d) Beneficial ownership shall be delivered or withdrawn and such Securities may be surrendered or delivered for purchase determined in accordance with Rule 13d-3 promulgated by the Applicable Procedures SEC under the Securities and Exchange Act of 1934, as in effect from time amended (the "Exchange Act"). The term "person" shall include any syndicate or group that would be deemed to timebe a "person" under Section 13(d)(3) of the Exchange Act.
Appears in 1 contract
Samples: Indenture (Bell Microproducts Inc)
Purchase of Securities at Option of the Holder upon Change in Control. (a) If at any time that Securities remain outstanding there shall occur have occurred a Change in Control, Securities shall be purchased repurchased by the Company Company, at the option of the HoldersHolder thereof, as of at a purchase price in cash (the date that is 30 Business Days after the date of the Company's notice of the “Change in Control pursuant Purchase Price”) equal to Section 3.02(bthe principal amount of such Securities plus accrued but unpaid interest (including Liquidated Damages, if any) thereon, up to but not including the date (the "“Change in Control Purchase Date"”) at a purchase price equal to 100% of fixed by the principal amount of Company that is not less than 30 days nor more than 45 days after the Securities, together with any accrued and unpaid interest to, but excluding, date the Company Change in Control Purchase Date Notice (the "Change in Control Purchase Price")as defined below) is given, subject to satisfaction by or on behalf of any the Holder of the requirements set forth in subsection (c) Section 3.09(c); provided that if the Change in Control Purchase Date is on or after an interest record date but on or prior to the related interest payment date, interest and Liquidated Damages, if any, will be payable to the Holders in whose names the Securities are registered at the close of this Section 3.02business on the relevant record date.
(b) Within 30 The Company, or at its request (which must be received by the Trustee at least three Business Days after (or such lesser period as agreed to by the Trustee) prior to the date the Trustee is requested to give such notice as described below) the Trustee, in the name of and at the expense of the Company, shall mail to all Holders of record of the Securities a notice (a “Company Change in Control Notice”) of the occurrence of a Change in Control, the Company shall mail a written notice Control and of the Change in Control to repurchase right arising as a result thereof not more than 30 days after the Trustee and to each Holder (and to beneficial owners as required by applicable law). The notice shall include the form of a Change in Control Purchase Notice to be completed by the Holder and shall state:
(1) the date of such Change in Control and information about the nature occurrence of such Change in Control;. The Company shall promptly furnish to the Trustee a copy of such notice, and such notice shall contain the information described in Section 3.08(b).
(2c) For a Security to be so repurchased at the date by which the Change in Control Purchase Notice pursuant to this Section 3.02 must be given;
(3) the Change in Control Purchase Date;
(4) the Change in Control Purchase Price;
(5) option of the Holder's right to require the Company to purchase the Securities;
(6) whether the change in Control Purchase Price will be paid in cash or shares of Applicable Stock, or a combination thereof and, in the case of a combination, the percentage of each;
(7) if the Company elects to pay the Change in Control Purchase Price in shares of Applicable Stock or a combination of cash and shares of Applicable Stock, that the number of shares of Applicable Stock each Holder will receive will equal the quotient obtained by dividing the amount of the Change in Control Purchase Price to be paid in shares of Applicable Stock by 97% of the average of the Sale Price of the Applicable Stock for the five (5) Trading Days immediately preceding the second Business Day immediately preceding the Change in Control Purchase Date;
(8) if the Company elects to pay the Change in Control Purchase Price in shares of Applicable Stock or a combination of cash and shares of Applicable Stock, the method of calculating the Sale Price of the shares of Applicable Stock;
(9) that because the Sale Price of the shares of Applicable Stock will be determined prior to the Change in Control Purchase Date, Holders of the Securities will bear the market risk that the shares of Applicable Stock to be received will decline in value between the date such Sale Price is determined and the Change in Control Purchase Date;
(10) briefly, the conversion rights of the Securities;
(11) the name and address of each Paying Agent and Conversion Agent;
(12) must receive such Security with the Conversion Price and any adjustments thereto;
(13) the CUSIP number of the Securities;
(14) that Securities as form entitled “Option to which Elect Repurchase Upon a Change in Control Purchase Notice has been given may be converted into Common Stock pursuant to Article IV of this Indenture only to the extent that the Change in Control Purchase Notice has been withdrawn in accordance with the terms of this Indenture;
Control” (15) the procedures that the Holder must follow to exercise rights under this Section 3.02;
(16) the procedures for withdrawing a “Change in Control Purchase Notice, including a form of notice of withdrawal; and
(17”) that the Holder must satisfy the requirements set forth in the Securities in order to convert the Securities. If any of the Securities is in the form of a Global Security, then the Company shall modify such notice to the extent necessary to accord with the procedures of the Depositary applicable to the repurchase of Global Securities.
(c) A Holder may exercise its rights specified in subsection (a) of this Section 3.02 upon delivery of a written notice (which shall be in substantially the form included in Exhibit A hereto and which may be delivered by letter, overnight courier, hand delivery, facsimile transmission or in any other written form and, in the case of Global Securities, may be delivered electronically or by other means in accordance with the Depositary's customary procedures) of the exercise of such rights (a "Change in Control Purchase Notice") to any Paying Agent at any time prior to the close of business on the Business Day immediately preceding reverse thereof duly completed, together with such Security duly endorsed for transfer, on or before the Change in Control Purchase Date. The delivery All questions as to the validity, eligibility (including time of such receipt) and acceptance of any Security to any Paying Agent (together with all necessary endorsements) at the office of such Paying Agent for redemption shall be a condition to the receipt determined by the Holder of the Change in Control Purchase Price thereforCompany, whose determination shall be final and binding. The Company shall purchase from the Holder thereof, pursuant to this Section 3.023.09, a portion of a Security if the principal amount of such portion is $1,000 or an integral multiple of $1,000. Provisions of the this Indenture that apply to the purchase of all of a Security pursuant to Sections 3.02 through 3.08 also apply to the purchase of such portion of such Security. Any purchase by the Company contemplated pursuant to the provisions of this Section 3.09 shall be consummated by the delivery of the consideration to be received by the Holder promptly following the later of the Change in Control Purchase Date and the time of delivery of the Security to the Paying Agent in accordance with this Section 3.09. Notwithstanding anything herein to the contrary, any Holder delivering to the Paying Agent the Change in Control Purchase Notice contemplated by this subsection (cSection 3.09(c) shall have the right to withdraw such Change in Control Purchase Notice in whole or in a portion thereof that is a principal amount of $1,000 or in an integral multiple thereof at any time prior to the close of business on the Business Day immediately preceding the Change in Control Purchase Date by delivery of a written notice of withdrawal to the Paying Agent in accordance with Section 3.03. A Change in Control Purchase Notice shall be deemed to be withdrawn as to some or all of the Securities that a Holder has notified the Paying Agent that it has elected that the Company purchase if (1) the Company has elected pursuant to Section 3.04 to pay the Change in Control Purchase Price in part or in whole in Applicable Stock, (2) the Company has failed to satisfy the conditions in Section 3.04(d) and (3) such Holder has made the election in its Change in Control Purchase Notice to withdraw its Change in Control Purchase Notice in the event that (1) and (2) above occur. If a Holder fails to indicate such Holder's election in such Holder's Change in Control Purchase Notice and the Company has elected in whole or in part to pay the Change in Control Purchase Price in Applicable Stock but fails to satisfy the conditions in Section 3.04(d), such Holder shall be deemed to have elected to receive cash in respect of the Change in Control Purchase Price otherwise payable in Applicable Stock3.10. The Paying Agent shall promptly notify the Company of the receipt by it of any Change in Control Purchase Notice or written withdrawal thereof. Anything Notwithstanding anything herein to the contrary notwithstandingcontrary, in the case of Global Securities, any Company’s obligations pursuant to this Section 3.09 shall be satisfied if a third party makes an offer to repurchase outstanding Securities after a Change in Control Purchase Notice may be delivered or withdrawn in the manner and such Securities may be surrendered or delivered for purchase at the times and otherwise in accordance compliance in all material respects with the Applicable Procedures as in effect from time requirements of this Section 3.09 and purchases all Securities properly tendered and not withdrawn pursuant to timethe requirements of this Section 3.09.
Appears in 1 contract
Purchase of Securities at Option of the Holder upon Change in Control. (a) If at any time that Securities remain outstanding there shall occur have occurred a Change in Control, Securities shall be purchased by the Company at the option of the HoldersHolder thereof, at a purchase price (the "Change in Control Purchase Price") equal to the principal amount thereof plus accrued interest to the Change in Control Purchase Date (as hereinafter defined), as of the date that is 30 40 Business Days after the date of the Company's notice occurrence of the Change in Control pursuant to Section 3.02(b) (the "Change in Control Purchase Date") at a purchase price equal to 100% of the principal amount of the Securities, together with any accrued and unpaid interest to, but excluding, the Change in Control Purchase Date (the "Change in Control Purchase Price"), subject to satisfaction by or on behalf of any the Holder of the requirements set forth in subsection Section 6.10(c) and the condition precedent set forth in the next succeeding sentence. It shall be a condition precedent to such right of any Holder to require the repurchase of Securities that prior thereto, and prior to the Company giving notice to Holders provided in Section 6.10(b), the Company shall have (ci) repaid in full in cash all Specified Bank Debt or (ii) obtained the requisite consent of this Section 3.02holders of Specified Bank Debt to permit the repurchase of Securities (treating such repurchase as a transaction requiring such consent).
(b) Within 30 20 Business Days after the occurrence of a Change in Control, the Company shall mail a written notice of the Change in Control by first-class mail to the Trustee and to each Holder (and to beneficial owners as required by applicable law) and shall cause a copy of such notice to be published in a daily newspaper of national circulation (which shall be The Wall Street Journal unless it is not then so circulated). The notice shall include the form of a Change in Control Purchase Notice (as defined below) to be completed by the Holder and shall state:
(1) the date of such Change in Control and information about and, briefly, the nature of events causing such Change in Control;
(2) the date by which the Change in Control Purchase Notice pursuant to this Section 3.02 6.10 must be given;
(3) the Change in Control Purchase Date;
(4) the Change in Control Purchase Price;
(5) the Holder's right to require the Company to purchase the Securities;
(6) whether the change in Control Purchase Price will be paid in cash or shares of Applicable Stock, or a combination thereof and, in the case of a combination, the percentage of each;
(7) if the Company elects to pay the Change in Control Purchase Price in shares of Applicable Stock or a combination of cash and shares of Applicable Stock, that the number of shares of Applicable Stock each Holder will receive will equal the quotient obtained by dividing the amount of the Change in Control Purchase Price to be paid in shares of Applicable Stock by 97% of the average of the Sale Price of the Applicable Stock for the five (5) Trading Days immediately preceding the second Business Day immediately preceding the Change in Control Purchase Date;
(8) if the Company elects to pay the Change in Control Purchase Price in shares of Applicable Stock or a combination of cash and shares of Applicable Stock, the method of calculating the Sale Price of the shares of Applicable Stock;
(9) that because the Sale Price of the shares of Applicable Stock will be determined prior to the Change in Control Purchase Date, Holders of the Securities will bear the market risk that the shares of Applicable Stock to be received will decline in value between the date such Sale Price is determined and the Change in Control Purchase Date;
(10) briefly, the conversion rights of the Securities;
(116) the name and address of each the Paying Agent and the Conversion Agent;
(127) the Conversion Price and any adjustments thereto;
(13) the CUSIP number of the Securities;
(14) 8) that Securities as to which a Change in Control Purchase Notice has been given may be converted into Common Stock pursuant to Article IV of this Indenture only to the extent that the Change in Control Purchase Notice has been withdrawn in accordance with the terms of this Indenture;
(159) the procedures that the Holder must follow to exercise rights under this Section 3.026.10;
(1610) the procedures for withdrawing a Change in Control Purchase Notice, including a form of notice of withdrawal; and
(1711) that the Holder must satisfy the requirements set forth in the Securities in order to convert the Securities. If any of the Securities is in the form of a Global Security, then the Company shall modify such notice to the extent necessary to accord with the procedures of the Depositary applicable to the repurchase of Global Securities.
(c) A Holder may exercise its rights specified in subsection Section 6.10
(a) of this Section 3.02 upon delivery of a written notice (which shall be in substantially the form included in Exhibit A hereto and which may be delivered by letter, overnight courier, hand delivery, facsimile transmission or in any other written form and, in the case of Global Securities, may be delivered electronically or by other means in accordance with the Depositary's customary procedures) of the exercise of such rights (a "Change in Control Purchase Notice") to any the Paying Agent at any time prior to the close of business on the Business Day immediately preceding the Change in Control Purchase Date, stating:
(1) the certificate number of each Security that the Holder will deliver to be purchased;
(2) the portion of the principal amount of each Security that the Holder will deliver to be purchased, which portion must be $1,000 or an integral multiple thereof; and
(3) that such Security shall be purchased pursuant to the terms and conditions specified in this Indenture. The delivery of such Security to any the Paying Agent prior to, on or after the Change in Control Purchase Date (together with all necessary endorsements) at the office of such the Paying Agent shall be a condition to the receipt by the Holder of the Change in Control Purchase Price therefor; provided, however, that such Change in Control Purchase Price shall be so paid pursuant to this Section 6.10 only if the Security so delivered to the Paying Agent shall conform in all respects to the description thereof set forth in the related Change in Control Purchase Notice. The Company shall purchase from the Holder thereof, pursuant to this Section 3.026.10, a portion of a Security if the principal amount of such portion is $1,000 or an integral multiple of $1,000. Provisions of the this Indenture that apply to the purchase of all of a Security pursuant to Sections 3.02 6.10 through 3.08 6.15 also apply to the purchase of such portion of such Security. Notwithstanding anything herein to the contrary, any Holder delivering to the Paying Agent the Change in Control Purchase Notice contemplated by this subsection (cSection 6.10(c) shall have the right to withdraw such Change in Control Purchase Notice in whole or in a portion thereof that is a principal amount of $1,000 or in an integral multiple thereof at any time prior to the close of business on the Business Day immediately preceding the Change in Control Purchase Date by delivery of a written notice of withdrawal to the Paying Agent in accordance with Section 3.03. A Change in Control Purchase Notice shall be deemed to be withdrawn as to some or all of the Securities that a Holder has notified the Paying Agent that it has elected that the Company purchase if (1) the Company has elected pursuant to Section 3.04 to pay the Change in Control Purchase Price in part or in whole in Applicable Stock, (2) the Company has failed to satisfy the conditions in Section 3.04(d) and (3) such Holder has made the election in its Change in Control Purchase Notice to withdraw its Change in Control Purchase Notice in the event that (1) and (2) above occur. If a Holder fails to indicate such Holder's election in such Holder's Change in Control Purchase Notice and the Company has elected in whole or in part to pay the Change in Control Purchase Price in Applicable Stock but fails to satisfy the conditions in Section 3.04(d), such Holder shall be deemed to have elected to receive cash in respect of the Change in Control Purchase Price otherwise payable in Applicable Stock6.11. The Paying Agent shall promptly notify the Company of the receipt by it of any Change in Control Purchase Notice or written withdrawal thereof. Anything herein to the contrary notwithstanding, in the case of Global Securities, any Change in Control Purchase Notice may be delivered or withdrawn and such Securities may be surrendered or delivered for purchase in accordance with the Applicable Procedures as in effect from time to time.
Appears in 1 contract
Purchase of Securities at Option of the Holder upon Change in Control. (a) If at any time that the Securities remain outstanding there shall occur have occurred a Change in Control, all or any portion of the Securities of any Holder equal to $1,000 or a integral multiple of $1,000 Principal Amount at Maturity, shall be purchased by the Company Company, at the option of the Holderssuch Holder, as of the date that is 30 Business Days after the date of the Company's notice of the Change in Control pursuant to Section 3.02(b) (the "Change in Control Purchase Date") at a purchase price equal to 100% the Issue Price of the principal amount of the SecuritiesSecurities to be purchased, together with any accrued Original Issue Discount, accrued and unpaid interest cash interest, if any, and accrued and unpaid Liquidated Damages, if any, to, but excluding, the Change in Control Purchase Date (the "Change in Control Purchase Price"), subject to satisfaction on a date specified by or on behalf of any Holder the Company that is no more than 30 Business Days after the date of the requirements set forth Change in subsection Control (c) the "Change in Control Purchase Date"); provided, however, if the Change in Control Purchase Date falls after a Regular Record Date and on or before the related Interest Payment Date, then interest on the Securities payable on such Interest Payment Date shall be payable to the Holders in whose name the Securities are registered at the close of this Section 3.02business on such Regular Record Date.
(b) Within 30 Business Days after the occurrence of a Change Whenever in Controlthis Indenture (including Sections 2.01, the Company shall mail a written notice of the Change 8.01 and 8.07 hereof) or in Control to the Trustee and to each Holder (and to beneficial owners as required by applicable law). The notice shall include the form of Securities there is a Change reference, in Control Purchase Notice any context, to the principal of any Securities as of any time, such reference shall be completed by the Holder and shall state:
(1) the date of such Change in Control and information about the nature of such Change in Control;
(2) the date by which deemed to include reference to the Change in Control Purchase Notice pursuant Price payable in respect to this Section 3.02 must be given;
(3) such Securities to the extent that such Change in Control Purchase Date;
(4) the Change in Control Purchase Price;
(5) the Holder's right to require the Company to purchase the Securities;
(6) whether the change in Control Purchase Price will is, was or would be paid in cash or shares so payable at such time, and express mention of Applicable Stock, or a combination thereof and, in the case of a combination, the percentage of each;
(7) if the Company elects to pay the Change in Control Purchase Price in shares any provision of Applicable Stock or a combination of cash and shares of Applicable Stock, that the number of shares of Applicable Stock each Holder will receive will equal the quotient obtained by dividing the amount of the Change in Control Purchase Price to this Indenture shall not be paid in shares of Applicable Stock by 97% of the average of the Sale Price of the Applicable Stock for the five (5) Trading Days immediately preceding the second Business Day immediately preceding the Change in Control Purchase Date;
(8) if the Company elects to pay construed as excluding the Change in Control Purchase Price in shares of Applicable Stock or a combination of cash and shares of Applicable Stock, the method of calculating the Sale Price of the shares of Applicable Stock;
(9) that because the Sale Price of the shares of Applicable Stock will be determined prior to the Change in Control Purchase Date, Holders of the Securities will bear the market risk that the shares of Applicable Stock to be received will decline in value between the date such Sale Price is determined and the Change in Control Purchase Date;
(10) briefly, the conversion rights of the Securities;
(11) the name and address of each Paying Agent and Conversion Agent;
(12) the Conversion Price and any adjustments thereto;
(13) the CUSIP number of the Securities;
(14) that Securities as to which a Change in Control Purchase Notice has been given may be converted into Common Stock pursuant to Article IV those provisions of this Indenture only to the extent that the Change in Control Purchase Notice has been withdrawn in accordance with the terms of this Indenture;
(15) the procedures that the Holder must follow to exercise rights under this Section 3.02;
(16) the procedures for withdrawing a Change in Control Purchase Notice, including a form of notice of withdrawal; and
(17) that the Holder must satisfy the requirements set forth in the Securities in order to convert the Securities. If any of the Securities when such express mention is in the form of a Global Security, then the Company shall modify such notice to the extent necessary to accord with the procedures of the Depositary applicable to the repurchase of Global Securitiesnot made.
(c) A Holder may exercise its rights specified in subsection (a) of this Section 3.02 upon delivery of a written notice (which shall be in substantially the form included in Exhibit A hereto and which may be delivered by letter, overnight courier, hand delivery, facsimile transmission or in any other written form and, in the case of Global Securities, may be delivered electronically or by other means in accordance with the Depositary's customary procedures) of the exercise of such rights (a "Change in Control Purchase Notice") to Control" of the Company, or any Paying Agent at any time prior successor entity who is subject to the close terms of business on the Business Day immediately preceding the Change in Control Purchase Date. The delivery of such Security to any Paying Agent (together with all necessary endorsements) at the office of such Paying Agent shall be a condition to the receipt by the Holder of the Change in Control Purchase Price therefor. The Company shall purchase from the Holder thereofthis Indenture, pursuant to this Section 3.02, a portion of a Security if the principal amount of such portion is $1,000 or an integral multiple of $1,000. Provisions of the Indenture that apply to the purchase of all of a Security pursuant to Sections 3.02 through 3.08 also apply to the purchase of such portion of such Security. Notwithstanding anything herein to the contrary, any Holder delivering to the Paying Agent the Change in Control Purchase Notice contemplated by this subsection (c) shall have the right to withdraw such Change in Control Purchase Notice in whole or in a portion thereof that is a principal amount of $1,000 or in an integral multiple thereof at any time prior to the close of business on the Business Day immediately preceding the Change in Control Purchase Date by delivery of a written notice of withdrawal to the Paying Agent in accordance with Section 3.03. A Change in Control Purchase Notice shall be deemed to be withdrawn as to some or all of the Securities that a Holder has notified the Paying Agent that it has elected that the Company purchase if (1) the Company has elected pursuant to Section 3.04 to pay the Change in Control Purchase Price in part or in whole in Applicable Stock, (2) the Company has failed to satisfy the conditions in Section 3.04(d) and (3) such Holder has made the election in its Change in Control Purchase Notice to withdraw its Change in Control Purchase Notice in the event that (1) and (2) above occur. If a Holder fails to indicate such Holder's election in such Holder's Change in Control Purchase Notice and the Company has elected in whole or in part to pay the Change in Control Purchase Price in Applicable Stock but fails to satisfy the conditions in Section 3.04(d), such Holder shall be deemed to have elected to receive cash in respect occurred at such time after the original issuance of Securities as any of the Change in Control Purchase Price otherwise payable in Applicable Stock. The Paying Agent following events shall promptly notify occur:
(1) a resolution is passed by the Company Company's shareholders approving a plan of liquidation or dissolution of the receipt by it Company;
(2) the consummation of any Change in Control Purchase Notice or written withdrawal thereof. Anything herein transaction with respect to the contrary notwithstanding, Company's Common Stock that is subject to Rule 13e-3 of the Securities Act;
(3) any person acquires in one or more transactions an amount of the Company's Common Stock which is at the time of such acquisition great enough to result in the case Company's Common Stock being delisted from the principal United States national securities exchange (or the NASDAQ National Market) on which the shares of Global Securitiesthe Company's Common Stock are then listed;
(4) the acquisition by any person of beneficial ownership, any Change directly or indirectly, through a purchase, merger (except a merger or consolidation described in Control Purchase Notice may be delivered or withdrawn and such Securities may be surrendered or delivered for purchase in accordance with the Applicable Procedures as in effect from time to time.subclause (5) of this
Appears in 1 contract
Samples: Indenture (Mgi Pharma Inc)
Purchase of Securities at Option of the Holder upon Change in Control. (a) If at any time that the Securities remain outstanding there shall occur have occurred a Change in Control, all or any portion of the Securities of any Holder equal to $1,000 or a integral multiple of $1,000, shall be purchased by the Company Company, at the option of the Holderssuch Holder, as of the date that is 30 Business Days after the date of the Company's notice of the Change in Control pursuant to Section 3.02(b) (the "Change in Control Purchase Date") at a purchase price equal to 100% of the principal amount of the SecuritiesSecurities to be purchased, together with any interest accrued and unpaid interest to, but excluding, the Change in Control Purchase Date (the "Change in Control Purchase Price"), subject to satisfaction by or on behalf of any Holder the date (the "Change in Control Purchase Date") that is 45 days after the date of the requirements set forth Change in subsection (c) Control Purchase Notice; provided, however, if the Change in Control Purchase Date falls after a Regular Record Date and on or before an Interest Payment Date, then interest on the Securities shall be payable to the Holders in whose name the Securities are registered at the close of this Section 3.02business on such Regular Record Date.
(b) Whenever in this Indenture (including Sections 2.1, 8.1 and 8.7 hereof) or in the form of Securities there is a reference, in any context, to the principal of any Securities as of any time, such reference shall be deemed to include reference to the Change in Control Purchase Price payable in respect to such Securities to the extent that such Change in Control Purchase Price is, was or would be so payable at such time, and express mention of the Change in Control Purchase Price in any provision of this Indenture shall not be construed as excluding the Change in Control Purchase Price in those provisions of this Indenture when such express mention is not made.
(c) A "Change in Control" of the Company, or any successor entity who is subject to the terms of this Indenture, shall be deemed to have occurred at such time after the original issuance of Securities as any of the following events shall occur:
(1) the acquisition by any person of beneficial ownership, directly or indirectly, through a purchase, merger (except a merger or consolidation described in subclause (2) of this Subsection) or other acquisition transaction or series of transactions, of shares of the Capital Stock of the Company entitling that person to exercise 50% or more of the total voting power of all shares of such Capital Stock entitled to vote generally in elections of directors, other than any acquisition by the Company, any of its Subsidiaries or any employee benefit plans of the Company;
(2) any consolidation or merger of the Company with or into any other person, any merger of another person into the Company, or any conveyance, transfer, sale, lease or other disposition of all or substantially all of the Company's properties and assets to another person, other than:
(A) any transaction (i) that does not result in any reclassification, conversion, exchange or cancellation of outstanding shares of Capital Stock of the Company and (ii) pursuant to which holders of the Capital Stock of the Company immediately prior to the transaction are entitled to exercise, directly or indirectly, 50% or more of the total voting power of all shares of the Capital Stock of the Company entitled to vote generally in the election of directors of the continuing or surviving person immediately after the transaction;
(B) any merger solely for the purpose of changing the Company's jurisdiction of incorporation and resulting in a reclassification, conversion or exchange of outstanding shares of Common Stock solely into shares of common stock of the surviving entity; or
(C) any merger or consolidation where all of the consideration (excluding Cash payments for fractional shares and Cash payments made pursuant to dissenters' appraisal rights) consists of shares of common stock traded on a national securities exchange or quoted on the Nasdaq National Market, or will be so traded or quoted immediately following such merger or consolidation, and as a result of such merger or consolidation the Securities become convertible solely into such common stock.
(3) during any consecutive two-year period, individuals who at the beginning of that two-year period constituted the Board of Directors (together with any new directors whose election to the Board of Directors, or whose nomination for election by the stockholders of the Company, was approved by a vote of a majority of the directors then still in office who were either directors at the beginning of such period or whose election or nomination for election were previously so approved) cease to constitute a majority of the Board of Directors then in office; or
(4) a resolution is passed by the Company's stockholders approving a plan of liquidation or dissolution of the Company other than a transaction which complies with the provisions described in Article 7 of this Indenture.
(d) Beneficial ownership shall be determined in accordance with Rule 13d-3 promulgated by the SEC under the Exchange Act. The term "person" shall include any syndicate or group that would be deemed to be a "person" under Section 13(d)(3) of the Exchange Act.
(e) Within 30 Business Days days after the occurrence of a Change in Control, the Company Company, or, at the written request and expense of the Company, the Trustee, shall mail a written notice of the Change in Control to the Trustee (if the Trustee does not mail such notice) and to each Holder (and to beneficial owners as required by applicable law). The notice shall include the form of a Change in Control Purchase Notice to be completed by the Holder and shall state:
(1) the date of such Change in Control and information about and, briefly, the nature of events causing such Change in Control;
(2) the date by which the Change in Control Purchase Notice pursuant to this Section 3.02 3.8 must be given;
(3) the Change in Control Purchase Date;
(4) the Change in Control Purchase Price;
(5) the Holder's right to require the Company to purchase the Securities;
(6) whether the change in Control Purchase Price will be paid in cash or shares of Applicable Stock, or a combination thereof and, in the case of a combination, the percentage of each;
(7) if the Company elects to pay the Change in Control Purchase Price in shares of Applicable Stock or a combination of cash and shares of Applicable Stock, that the number of shares of Applicable Stock each Holder will receive will equal the quotient obtained by dividing the amount of the Change in Control Purchase Price to be paid in shares of Applicable Stock by 97% of the average of the Sale Price of the Applicable Stock for the five (5) Trading Days immediately preceding the second Business Day immediately preceding the Change in Control Purchase Date;
(8) if the Company elects to pay the Change in Control Purchase Price in shares of Applicable Stock or a combination of cash and shares of Applicable Stock, the method of calculating the Sale Price of the shares of Applicable Stock;
(9) that because the Sale Price of the shares of Applicable Stock will be determined prior to the Change in Control Purchase Date, Holders of the Securities will bear the market risk that the shares of Applicable Stock to be received will decline in value between the date such Sale Price is determined and the Change in Control Purchase Date;
(10) briefly, the conversion rights of the Securities;
(117) the name and address of each Paying Agent and Conversion AgentAgent and that the Securities must be surrendered to the Paying Agent to collect payment;
(12) 8) the then effective Conversion Price and any adjustments theretoConversion Rate;
(139) the CUSIP number of procedures that the Securities;
(14) Holder must follow to exercise rights under Article 4 and that Securities as to which a Change in Control Purchase Notice has been given may be converted into Common Stock pursuant to Article IV 4 of this Indenture only to the extent that the Change in Control Purchase Notice has been withdrawn in accordance with the terms of this Indenture;
(1510) the procedures that the Holder must follow to exercise rights under this Section 3.02;3.8; and
(1611) the procedures for withdrawing a Change in Control Purchase Notice, including a form of notice of withdrawal; and
(17) that the Holder must satisfy the requirements set forth in the Securities in order to convert the Securities. If any of the Securities is in the form of a Global Security, then the Company shall modify such notice to the extent necessary to accord with the procedures of the Depositary applicable to the repurchase purchase of Global Securities.
(cf) A Holder may exercise its rights specified in subsection Subsection (a) of this Section 3.02 3.8 upon delivery of a written notice (which shall be in substantially the form included in Exhibit A hereto and which may be delivered by letter, overnight courier, hand delivery, facsimile transmission or in any other written form and, in the case of Global Securities, may be delivered electronically or by other means in accordance with the Depositary's customary procedures) of the exercise of such rights (a "Change in Control Purchase Notice") to any Paying Agent at any time prior to the close of business on the Business Day immediately next preceding the Change in Control Purchase Date. .
(1) The delivery of such Security to any Paying Agent prior to, on or after the Change in Control Purchase Date (together with all necessary endorsements) at the office of such Paying Agent shall be a condition to the receipt by the Holder of the Change in Control Purchase Price therefor. .
(2) The Company shall purchase from the Holder thereof, thereof pursuant to this Section 3.023.8, a portion of a Security if the principal amount of such portion is $1,000 or an integral multiple of $1,000. Provisions of the this Indenture that apply to the purchase of all of a Security pursuant to Sections 3.02 through 3.08 also apply to the purchase of such portion of such Security. .
(3) Notwithstanding anything herein to the contrary, any Holder delivering to the a Paying Agent the Change in Control Purchase Notice contemplated by this subsection (cSubsection 3.8(f) shall have the right to withdraw such Change in Control Purchase Notice in whole or in a portion thereof that is a principal amount of $1,000 or in an integral multiple thereof at any time prior to the close of business on the Business Day immediately next preceding the Change in Control Purchase Date by delivery of a written notice of withdrawal to the Paying Agent in accordance with Section 3.03. 3.9.
(4) A Change in Control Purchase Notice shall be deemed to be withdrawn as to some or all of the Securities that a Holder has notified the Paying Agent that it has elected that the Company purchase if (1) the Company has elected pursuant to Section 3.04 to pay the Change in Control Purchase Price in part or in whole in Applicable Stock, (2) the Company has failed to satisfy the conditions in Section 3.04(d) and (3) such Holder has made the election in its Change in Control Purchase Notice to withdraw its Change in Control Purchase Notice in the event that (1) and (2) above occur. If a Holder fails to indicate such Holder's election in such Holder's Change in Control Purchase Notice and the Company has elected in whole or in part to pay the Change in Control Purchase Price in Applicable Stock but fails to satisfy the conditions in Section 3.04(d), such Holder shall be deemed to have elected to receive cash in respect of the Change in Control Purchase Price otherwise payable in Applicable Stock. The Paying Agent shall promptly notify the Company of the receipt by it of any Change in Control Purchase Notice or written withdrawal thereof. .
(5) Anything herein to the contrary notwithstanding, in the case of Global Securities, any Change in Control Purchase Notice may be delivered or withdrawn and such Securities may be surrendered or delivered for purchase in accordance with the Applicable Procedures as in effect from time to time.
Appears in 1 contract
Samples: Indenture (Bell Microproducts Inc)
