Repurchase at Option of Holders Upon a Fundamental Change. (a) If a Fundamental Change occurs at any time prior to the Maturity Date, each Holder shall have the right, at such Holder’s option, to require the Company to repurchase for cash all of such Holder’s Notes, or any portion thereof that is equal to minimum denominations of $1,000 or an integral multiple of $1,000 in excess thereof, on the date (the “Fundamental Change Repurchase Date”) specified by the Company that is not less than 20 calendar days or more than 35 calendar days following the date of the Fundamental Change Company Notice at a repurchase price equal to 100% of the principal amount thereof, plus accrued and unpaid interest thereon to, but excluding, the Fundamental Change Repurchase Date (the “Fundamental Change Repurchase Price”), unless the Fundamental Change Repurchase Date falls after a Regular Record Date but on or prior to the Interest Payment Date to which such Regular Record Date relates, in which case the Company shall instead pay the full amount of accrued and unpaid interest (to, but excluding, such Interest Payment Date) to Holders of record as of such Regular Record Date, and the Fundamental Change Repurchase Price shall be equal to 100% of the principal amount of Notes to be repurchased pursuant to this Article 15; provided that the Company shall not be required to repurchase, or to make an offer to repurchase, the Notes upon a Fundamental Change if a third party makes such an offer in the same manner, at the same time and otherwise in compliance with the requirements for an offer made by the Company as set forth in this Section 15.02 and such third party purchases all Notes properly surrendered and not validly withdrawn under its offer in the same manner, at the same time and otherwise in compliance with the requirements for an offer made by the Company as set forth in this Section 15.02. (b) Repurchases of Notes under this Section 15.02 shall be made, at the option of the Holder thereof, upon: (i) delivery to the Paying Agent or tender agent appointed to facilitate the repurchase (the “Tender Agent”) by a Holder of a duly completed notice (the “Fundamental Change Repurchase Notice”) in the form set forth in Attachment 2 to the Form of Note attached hereto as Exhibit A, if the Notes are Physical Notes, or in compliance with the Depositary’s procedures for surrendering interests in Global Notes, if the Notes are Global Notes, in each case on or before the close of business on the Business Day immediately preceding the Fundamental Change Repurchase Date; and (ii) delivery of the Notes, if the Notes are Physical Notes, to the Paying Agent or Tender Agent, as the case may be, at any time after delivery of the Fundamental Change Repurchase Notice (together with all necessary endorsements for transfer) at the Corporate Trust Office of the Paying Agent or the principal office of the Tender Agent located in the United States of America as notified by the Tender Agent to Holders and the Trustee, as applicable, or book-entry transfer of the Notes, if the Notes are Global Notes, in compliance with the procedures of the Depositary, in each case such delivery being a condition to receipt by the Holder of the Fundamental Change Repurchase Price therefor. The Fundamental Change Repurchase Notice in respect of any Notes to be repurchased shall state: (i) in the case of Physical Notes, the certificate numbers of the Notes to be delivered for repurchase; (ii) the portion of the principal amount of Notes to be repurchased, which must be $1,000 or an integral multiple thereof; and (iii) that the Notes are to be repurchased by the Company pursuant to the applicable provisions of the Notes and this Indenture; provided, however, that if the Notes are Global Notes, the Fundamental Change Repurchase Notice must comply with appropriate Depositary procedures. Notwithstanding anything herein to the contrary, any Holder delivering to the Paying Agent or Tender Agent, as the case may be, the Fundamental Change Repurchase Notice contemplated by this Section 15.02 shall have the right to withdraw, in whole or in part, such Fundamental Change Repurchase Notice at any time prior to the close of business on the Business Day immediately preceding the Fundamental Change Repurchase Date by delivery of a written notice of withdrawal to the Paying Agent or Tender Agent, as the case may be, in accordance with Section 15.03, or in accordance with the customary procedures of the Depository with respect to Global Notes. The Paying Agent or Tender Agent, as the case may be, shall promptly notify the Company of the receipt by it of any Fundamental Change Repurchase Notice or written notice of withdrawal thereof. (c) On or before the 20th Business Day after the occurrence of the effective date of a Fundamental Change, the Company shall provide to all Holders of Notes and the Trustee, the Conversion Agent (in the case of a Conversion Agent other than the Trustee) and the Paying Agent (in the case of a Paying Agent other than the Trustee) a notice (the “Fundamental Change Company Notice”) of the occurrence of the effective date of the Fundamental Change and of the repurchase right at the option of the Holders arising as a result thereof. In the case of Physical Notes, such notice shall be by first class mail or, in the case of Global Notes, such notice shall be delivered in accordance with the applicable procedures of the Depositary. Simultaneously with providing such notice, the Company shall publish a notice containing the information set forth in the Fundamental Change Company Notice on the Company’s website or through such other public medium as the Company may use at that time. Each Fundamental Change Company Notice shall specify: (i) the events causing the Fundamental Change; (ii) the effective date of the Fundamental Change; (iii) the last date on which a Holder may exercise the repurchase right pursuant to this Article 15; (iv) the Fundamental Change Repurchase Price; (v) the Fundamental Change Repurchase Date; (vi) the name and address of the Paying Agent or Tender Agent, as the case may be, and the Conversion Agent, if applicable; (vii) if applicable, the Conversion Rate and any adjustments to the Conversion Rate as a result of the Fundamental Change; (viii) that the Notes with respect to which a Fundamental Change Repurchase Notice has been delivered by a Holder may be converted only if the Holder validly withdraws the Fundamental Change Repurchase Notice in accordance with the terms of this Indenture; and (ix) the procedures that Holders must follow to require the Company to repurchase their Notes. No failure of the Company to give the foregoing notices and no defect therein shall limit the Holders’ repurchase rights or affect the validity of the proceedings for the repurchase of the Notes pursuant to this Section 15.02. At the Company’s request, given at least five days prior to the date the Fundamental Change Company Notice is to be sent (or such shorter period as may be agreed to by the Trustee), the Trustee shall give such notice in the Company’s name and at the Company’s expense; provided, however, that, in all cases, the text of such Fundamental Change Company Notice shall be prepared by the Company. (d) Notwithstanding the foregoing, no Notes may be repurchased by the Company on any date at the option of the Holders upon a Fundamental Change if the principal amount of the Notes has been accelerated, and such acceleration has not been rescinded, on or prior to such date (except in the case of an acceleration resulting from a Default by the Company in the payment of the Fundamental Change Repurchase Price with respect to such Notes). The Paying Agent or Tender Agent, as the case may be, will promptly return to the respective Holders thereof any Physical Notes held by it during the acceleration of the Notes (except in the case of an acceleration resulting from a Default by the Company in the payment of the Fundamental Change Repurchase Price with respect to such Notes), or any instructions for book-entry transfer of the Notes in compliance with the procedures of the Depositary shall be deemed to have been cancelled, and, upon such return or cancellation, as the case may be, the Fundamental Change Repurchase Notice with respect thereto shall be deemed to have been withdrawn.
Appears in 3 contracts
Samples: Indenture (Upstart Holdings, Inc.), Indenture (Upstart Holdings, Inc.), Indenture (Upstart Holdings, Inc.)
Repurchase at Option of Holders Upon a Fundamental Change. (a) If a Fundamental Change occurs at any time prior to the Maturity Date, each Holder shall have the right, at such Holder’s option, to require the Company to repurchase for cash all of such Holder’s Notes, or any portion of the principal amount thereof that is equal to minimum denominations of $1,000 or an integral multiple of $1,000 in excess thereof1,000, on the date (the “Fundamental Change Repurchase Date”) specified by the Company that is not less than 20 calendar days Business Days or more than 35 calendar days Business Days following the date of the Fundamental Change Company Notice at a repurchase price equal to 100% of the principal amount thereofof the Notes to be repurchased, plus accrued and unpaid interest thereon to, but excluding, the Fundamental Change Repurchase Date (the “Fundamental Change Repurchase Price”), unless the Fundamental Change Repurchase Date falls after a Regular Record Date but on or prior to the Interest Payment Date to which such Regular Record Date relates, in which case the Company shall instead pay the full amount of accrued and unpaid interest (to, but excluding, such Interest Payment Date) to Holders of record as of such Regular Record Date, and the Fundamental Change Repurchase Price shall be equal to 100% of the principal amount of the Notes to be repurchased pursuant to this Article 15; provided that the Company shall not be required to repurchase, or to make an offer to repurchase, the Notes upon a Fundamental Change if a third party makes such an offer in the same manner, at the same time and otherwise in compliance with the requirements for an offer made by the Company as set forth in this Section 15.02 and such third party purchases all Notes properly surrendered and not validly withdrawn under its offer in the same manner, at the same time and otherwise in compliance with the requirements for an offer made by the Company as set forth in this Section 15.02XIV.
(b) Repurchases of Notes under this Section 15.02 14.01 shall be made, at the option of the Holder thereof, upon:
(i) delivery to the Paying Agent or tender agent appointed to facilitate the repurchase (the “Tender Agent”) by a Holder of a duly completed notice (the “Fundamental Change Repurchase Notice”) in the form set forth in Attachment 2 to the Form of Note attached hereto to this Indenture as Exhibit A, if the Notes are Physical Notes, or in compliance with the Depositary’s procedures for surrendering interests in Global Notes, if the Notes are Global Notes, in each case on or before the close of business on the Business Day immediately preceding the Fundamental Change Repurchase DateDate (subject to postponement to comply with changes in applicable law after the date of this Indenture); and
(ii) delivery of the NotesNotes to be repurchased, if the Notes are Physical Notes, to the Paying Agent or Tender Agent, as the case may be, at any time after delivery of the Fundamental Change Repurchase Notice (together with all necessary endorsements for transfer) at the Corporate Trust Office of the Paying Agent or the principal office of the Tender Agent located in the United States of America as notified by the Tender Agent to Holders and the Trustee, as applicableAgent, or book-entry transfer of the Notes, if the Notes are Global Notes, in compliance with the procedures of the Depositary, in each case such delivery being a condition to receipt by the Holder of the Fundamental Change Repurchase Price therefor. The Fundamental Change Repurchase Notice in respect of any Notes to be repurchased shall state:
(iiii) in the case of Physical Notes, the certificate numbers of the Notes to be delivered for repurchase;
(iiiv) the portion of the principal amount of Notes to be repurchased, which must be $1,000 or an integral multiple thereof; and
(iiiv) that the Notes are to be repurchased by the Company pursuant to the applicable provisions of the Notes and this Indenture; provided. Notwithstanding anything to the contrary in the two preceding sentences, however, that if the Notes are Global Notes, then the Holder must instead comply with the applicable Depositary procedures to exercise the Fundamental Change Repurchase Notice must comply with appropriate Depositary proceduresrepurchase right. Notwithstanding anything herein in this Indenture to the contrary, any a Holder delivering to the Paying Agent or Tender Agent, as the case may be, the that has exercised its Fundamental Change Repurchase Notice contemplated by this Section 15.02 shall have the repurchase right with respect to withdraw, in whole or in part, any Note may withdraw such Fundamental Change Repurchase Notice at any time prior to the close of business on the Business Day immediately preceding the Fundamental Change Repurchase Date by delivery of a written notice of withdrawal to the Paying Agent or Tender Agent, as the case may be, exercise in accordance with Section 15.03, or in accordance with the customary procedures of the Depository with respect to Global Notes14.02. The Paying Agent or Tender Agent, as the case may be, shall promptly notify the Company of the receipt by it of any Fundamental Change Repurchase Notice or written notice of withdrawal thereofthereof or any corresponding exercise or withdrawal pursuant to the applicable Depositary procedures.
(c) On or before the 20th Business Day calendar day after the occurrence of the effective date of a Fundamental Change, the Company shall provide to all Holders of Notes and the Trustee, the Conversion Agent (in the case of a Conversion Agent other than the Trustee) Trustee and the Paying Agent (in the case of a Paying Agent other than the Trustee) a written notice (the “Fundamental Change Company Notice”) of the occurrence of the effective date of the Fundamental Change and of the repurchase right at the option of the Holders arising as a result thereof. In the case of Physical Notes, such notice shall be by first class mail or, in the case of Global Notes, such notice shall be delivered in accordance with the applicable procedures of the Depositary. Simultaneously with providing such notice, the Company shall publish a notice containing the information set forth in the Fundamental Change Company Notice on the Company’s website or through such other public medium as the Company may use at that time. Each Fundamental Change Company Notice shall specify:
(i) the events causing the Fundamental Change;
(ii) the effective date of the Fundamental Change;
(iii) the last date on which a Holder may exercise the repurchase right pursuant to this Article 15XIV;
(iv) the Fundamental Change Repurchase Price;
(v) the Fundamental Change Repurchase Date;
(vi) the name and address of the Paying Agent or Tender Agent, as the case may be, and the Conversion Agent, if applicable;
(vii) if applicable, the Conversion Rate and any adjustments to the Conversion Rate as a result of the Fundamental Change;
(viii) that the Notes with respect to which a Fundamental Change Repurchase Notice has been delivered by a Holder may be converted only if the Holder validly withdraws the Fundamental Change Repurchase Notice in accordance with the terms of this Indenture; and
(ix) the procedures that Holders must follow to require the Company to repurchase their Notes. No failure of the Company to give the foregoing notices and no defect therein shall limit the Holders’ repurchase rights or affect the validity of the proceedings for the repurchase of the Notes pursuant to this Section 15.0214.01. At the Company’s request, given at least five days prior to the date the Fundamental Change Company Notice is to be sent (or such shorter period as may be agreed to by the Trustee), the Trustee shall give such notice in the Company’s name and at the Company’s expense; provided, however, that, in all cases, the text of such Fundamental Change Company Notice shall be prepared by the Company.
(d) Notwithstanding the foregoing, no Notes may be repurchased by the Company on any date at the option of the Holders upon a Fundamental Change if the principal amount of the Notes has been accelerated, and such acceleration has not been rescinded, on or prior to such date (except in the case of an acceleration resulting from a Default by the Company in the payment of the Fundamental Change Repurchase Price with respect to such Notes). The Paying Agent or Tender Agent, as the case may be, will promptly return to the respective Holders thereof any Physical Notes held by it during the acceleration of the Notes (except in the case of an acceleration resulting from a Default by the Company in the payment of the Fundamental Change Repurchase Price with respect to such Notes), or any instructions for book-entry transfer of the Notes in compliance with the procedures of the Depositary shall be deemed to have been cancelledcanceled, and, upon such return or cancellation, as the case may be, the Fundamental Change Repurchase Notice with respect thereto shall be deemed to have been withdrawn.
Appears in 3 contracts
Samples: Indenture (Clovis Oncology, Inc.), Indenture (Clovis Oncology, Inc.), Indenture (Clovis Oncology, Inc.)
Repurchase at Option of Holders Upon a Fundamental Change. (a) If a Fundamental Change occurs at any time prior to the Maturity Date, each Holder shall have the right, at such Holder’s option, to require the Company to repurchase for cash all of such Holder’s Notes, or any portion thereof that is equal to minimum denominations of $1,000 or an integral multiple of $1,000 in excess thereof1,000, on the date (the “Fundamental Change Repurchase Date”) specified by the Company that is not less than 20 calendar days or more than 35 calendar days following the date of the Fundamental Change Company Notice at a repurchase price equal to 100% of the principal amount thereof, plus accrued and unpaid interest thereon to, but excluding, the Fundamental Change Repurchase Date (the “Fundamental Change Repurchase Price”), unless the Fundamental Change Repurchase Date falls after a Regular Record Date but on or prior to the Interest Payment Date to which such Regular Record Date relates, in which case the Company shall instead pay the full amount of accrued and unpaid interest (to, but excluding, such Interest Payment Date) to Holders of record as of such Regular Record Date, and the Fundamental Change Repurchase Price shall be equal to 100% of the principal amount of Notes to be repurchased pursuant to this Article 15; provided that the Company shall not be required to repurchase, or to make an offer to repurchase, the Notes upon a Fundamental Change if a third party makes such an offer in the same manner, at the same time and otherwise in compliance with the requirements for an offer made by the Company as set forth in this Section 15.02 and such third party purchases all Notes properly surrendered and not validly withdrawn under its offer in the same manner, at the same time and otherwise in compliance with the requirements for an offer made by the Company as set forth in this Section 15.0214.
(b) Repurchases of Notes under this Section 15.02 14.02 shall be made, at the option of the Holder thereof, upon:
(i) delivery to the Paying Agent or tender agent appointed to facilitate the repurchase (the “Tender Agent”) by a Holder of a duly completed notice (the “Fundamental Change Repurchase Notice”) in the form set forth in Attachment 2 to the Form of Note attached hereto as Exhibit A, if the Notes are Physical Notes, or in compliance with the Depositary’s procedures for surrendering interests in Global Notes, if the Notes are Global Notes, in each case on or before the close of business on the Business Day immediately preceding the Fundamental Change Repurchase Date; and
(ii) delivery of the Notes, if the Notes are Physical Notes, to the Paying Agent or Tender Agent, as the case may be, at any time after delivery of the Fundamental Change Repurchase Notice (together with all necessary endorsements for transfer) at the Corporate Trust Office of the Paying Agent or the principal office of the Tender Agent located in the United States of America as notified by the Tender Agent to Holders and the Trustee, as applicableAgent, or book-entry transfer of the Notes, if the Notes are Global Notes, in compliance with the procedures of the Depositary, in each case such delivery being a condition to receipt by the Holder of the Fundamental Change Repurchase Price therefor. The Fundamental Change Repurchase Notice in respect of any Notes to be repurchased shall state:
(i) in the case of Physical Notes, the certificate numbers of the Notes to be delivered for repurchase;
(ii) the portion of the principal amount of Notes to be repurchased, which must be $1,000 or an integral multiple thereof; and
(iii) that the Notes are to be repurchased by the Company pursuant to the applicable provisions of the Notes and this Indenture; provided, however, that if the Notes are Global Notes, the Fundamental Change Repurchase Notice must comply with appropriate Depositary procedures. Notwithstanding anything herein to the contrary, any Holder delivering to the Paying Agent or Tender Agent, as the case may be, the Fundamental Change Repurchase Notice contemplated by this Section 15.02 14.02 shall have the right to withdraw, in whole or in part, such Fundamental Change Repurchase Notice at any time prior to the close of business on the Business Day immediately preceding the Fundamental Change Repurchase Date by delivery of a written notice of withdrawal to the Paying Agent or Tender Agent, as the case may be, in accordance with Section 15.0314.03, in the case of Physical Notes, or in accordance with through the customary applicable procedures of the Depository with respect to Depositary, in the case of Global Notes. The Paying Agent or Tender Agent, as the case may be, shall promptly notify the Company of the receipt by it of any Fundamental Change Repurchase Notice or written notice of withdrawal thereof.
(c) On or before the 20th Business Day day after the occurrence of the effective date of a Fundamental Change, the Company shall provide to all Holders of Notes and the Trustee, the Conversion Agent (in the case of a Conversion Agent other than the Trustee) Trustee and the Paying Agent (in the case of a Paying Agent other than the Trustee) a notice (the “Fundamental Change Company Notice”) of the occurrence of the effective date of the a Fundamental Change and of the repurchase right at the option of the Holders arising as a result thereof. In the case of Physical Notes, such notice shall be by first class mail or, in the case of Global Notes, such notice shall be delivered in accordance with the applicable procedures of the Depositary. Simultaneously with providing such notice, the Company shall publish a notice containing the information set forth in the Fundamental Change Company Notice on the Company’s website or through such other public medium as the Company may use at that time. Each Fundamental Change Company Notice shall specify:
(i) the events causing the Fundamental Change;
(ii) the effective date of the Fundamental Change;
(iii) the last date on which a Holder may exercise the repurchase right pursuant to this Article 1514;
(iv) the Fundamental Change Repurchase Price;
(v) the Fundamental Change Repurchase Date;
(vi) the name and address of the Paying Agent or Tender Agent, as the case may be, and the Conversion Agent, if applicable;
(vii) if applicable, the Conversion Rate and any adjustments to the Conversion Rate as a result of the Fundamental ChangeRate;
(viii) that the Notes with respect to which a Fundamental Change Repurchase Notice has been delivered by a Holder may be converted only if the Holder validly withdraws the Fundamental Change Repurchase Notice in accordance with the terms of this Indenture; and
(ix) the procedures that Holders must follow to require the Company to repurchase their Notes. No failure of the Company to give the foregoing notices and no defect therein shall limit the Holders’ repurchase rights or affect the validity of the proceedings for the repurchase of the Notes pursuant to this Section 15.0214.02. At the Company’s request, given at least five days prior to the date the Fundamental Change Company Notice is to be sent (or such shorter period as may be agreed to by the Trustee), the Trustee shall give such notice in the Company’s name and at the Company’s expense; provided, however, that, in all cases, the text of such Fundamental Change Company Notice shall be prepared by the CompanyCompany and such request is made by the Company at least five (5) Business Days (or such shorter period as may be agreed to by the Trustee) prior to the date such notice is required to be sent to Holders.
(d) Notwithstanding the foregoing, no Notes may be repurchased by the Company on any date at the option of the Holders upon a Fundamental Change if the principal amount of the Notes has been accelerated, and such acceleration has not been rescinded, on or prior to such date (except in the case of an acceleration resulting from a Default by the Company in the payment of the Fundamental Change Repurchase Price with respect to such Notes). The Paying Agent or Tender Agent, as the case may be, will promptly return to the respective Holders thereof any Physical Notes held by it during the acceleration of the Notes (except in the case of an acceleration resulting from a Default by the Company in the payment of the Fundamental Change Repurchase Price with respect to such Notes), or any instructions for book-entry transfer of the Notes in compliance with the procedures of the Depositary shall be deemed to have been cancelledcanceled, and, upon such return or cancellation, as the case may be, the Fundamental Change Repurchase Notice with respect thereto shall be deemed to have been withdrawn.
(e) The Company shall not be required to repurchase, or make an offer to repurchase Notes upon the occurrence of a Fundamental Change otherwise required under this Section 14.02 if a third party makes an offer to purchase Notes in a manner, at the times and otherwise in compliance with the requirements set forth in this Indenture applicable to such an offer by the Company and such third party purchases all Notes properly tendered and not validly withdrawn under such offer to purchase.
Appears in 3 contracts
Samples: Indenture (Twitter, Inc.), Indenture (Twitter, Inc.), Indenture (Twitter, Inc.)
Repurchase at Option of Holders Upon a Fundamental Change. (a) If a Fundamental Change occurs at any time prior to the Maturity Date, each Holder shall have the right, at such Holder’s option, to require the Company to repurchase for cash all of such Holder’s Notes, or any portion of the principal amount thereof properly surrendered and not validly withdrawn pursuant to Section 15.03 that is equal to minimum denominations of $1,000 or an integral a multiple of $1,000 in excess thereof1,000, on the date (the “Fundamental Change Repurchase Date”) specified by the Company that is not less than 20 calendar days or more than 35 calendar days Business Days following the date of the Fundamental Change Company Notice at a repurchase price equal to 100% of the principal amount thereof, plus accrued and unpaid interest thereon to, but excluding, the Fundamental Change Repurchase Date (the “Fundamental Change Repurchase Price”), unless the Fundamental Change Repurchase Date falls after a Regular Record Date but on or prior to the Interest Payment Date to which such Regular Record Date relates, in which case the Company shall instead pay the full amount of accrued and unpaid interest (to, but excluding, such Interest Payment Date) to Holders the Holder of record as of such Regular Record Date, and the Fundamental Change Repurchase Price shall be equal to 100% of the principal amount of Notes to be repurchased pursuant to this Article 15; provided that . Any Notes so repurchased by the Company shall not be required to repurchase, or to make an offer to repurchase, the Notes upon a Fundamental Change if a third party makes such an offer paid for in the same manner, at the same time and otherwise in compliance with the requirements for an offer made by the Company as set forth in this Section 15.02 and such third party purchases all Notes properly surrendered and not validly withdrawn under its offer in the same manner, at the same time and otherwise in compliance with the requirements for an offer made by the Company as set forth in this Section 15.02cash.
(b) Repurchases of Notes under this Section 15.02 shall be made, at the option of the Holder thereof, upon:
(i) delivery to the Paying Agent or tender agent appointed to facilitate the repurchase (the “Tender Agent”) by a Holder of a duly completed written notice (the “Fundamental Change Repurchase Notice”) in the form set forth in Attachment 2 to the Form of Note attached hereto as Exhibit A, if the Notes are Physical Notes, or in compliance with the Depositary’s procedures Applicable Procedures for surrendering interests in Global Notes, if the Notes are Global Notes, in each case on or before the close of business on the Business Day immediately preceding the Fundamental Change Repurchase Date; and
(ii) delivery of the Notes, if the Notes are Physical Notes, to the Paying Agent on or Tender Agent, as before the case may be, at any time after delivery of first Business Day preceding the Fundamental Change Repurchase Notice Date (together with all necessary endorsements for transfer) at the Corporate Trust Office of the Paying Agent or the principal office of the Tender Agent located in the United States of America as notified by the Tender Agent to Holders and the Trustee, as applicableAgent, or book-entry transfer of the Notes, if the Notes are Global Notes, in compliance with the procedures of the DepositaryApplicable Procedures, in each case such delivery being a condition to receipt by the Holder of the Fundamental Change Repurchase Price therefor. The Fundamental Change Repurchase Notice in respect of any Notes to be repurchased shall state:
(i) in the case of Physical Notes, the certificate numbers of the Notes to be delivered for repurchase;
(ii) the portion of the principal amount of Notes to be repurchased, which must be $1,000 or an integral multiple thereof; and
(iii) that the Notes are to be repurchased by the Company pursuant to the applicable provisions of the Notes and this Indenture; provided, however, that if the Notes are Global Notes, the Fundamental Change Repurchase Notice must comply with appropriate Depositary proceduresthe Applicable Procedures. Notwithstanding anything herein to the contrary, any Holder delivering to the Paying Agent or Tender Agent, as the case may be, the Fundamental Change Repurchase Notice contemplated by this Section 15.02 shall have the right to withdraw, in whole or in part, such Fundamental Change Repurchase Notice at any time prior to the close of business on the Business Day immediately preceding the Fundamental Change Repurchase Date by delivery of a written notice of withdrawal to the Paying Agent or Tender Agent, as the case may be, in accordance with Section 15.03, or in accordance with the customary procedures of the Depository with respect to Global Notes. The Paying Agent or Tender Agent, as the case may be, shall promptly notify the Company of the receipt by it of any Fundamental Change Repurchase Notice or written notice of withdrawal thereof.
(c) On or before the 20th Business Day calendar day after the occurrence of the effective date of a Fundamental Change, the Company shall provide to all Holders of Notes and the Trustee, the Conversion Agent (in the case of a Conversion Agent if other than the Trustee) and the Paying Agent (in the case of a Paying Agent other than the Trustee) a written notice (the “Fundamental Change Company Notice”) of the occurrence of the effective date of the Fundamental Change and of the resulting repurchase right at the option of the Holders arising as a result thereof. In the case of Physical Notes, such notice shall be by first class mail or, in the case of Global Notes, such notice shall be delivered in accordance with the applicable procedures of the Depositary. Simultaneously with providing such notice, the Company shall publish a notice containing the information set forth in the Fundamental Change Company Notice on the Company’s website or through such other public medium as the Company may use at that timeApplicable Procedures. Each Fundamental Change Company Notice shall specify:
(i) the events causing the Fundamental Change;
(ii) the effective date of the Fundamental Change;
(iii) the last date on which a Holder may exercise the repurchase right pursuant to this Article 15;
(iv) the Fundamental Change Repurchase Price;
(v) the Fundamental Change Repurchase Date;
(vi) the name and address of the Paying Agent or Tender Agent, as the case may be, and the Conversion Agent, if applicable;
(vii) if applicable, the Conversion Rate and any adjustments to the Conversion Rate as a result of the such Fundamental Change (or related Make-Whole Fundamental Change);
(viii) that the Notes with respect to which a Fundamental Change Repurchase Notice has been delivered by a Holder may be converted only if the Holder validly withdraws the Fundamental Change Repurchase Notice in accordance with the terms of this Indenture; and
(ix) the procedures that Holders must follow to require the Company to repurchase their Notes. No failure of the Company to give the foregoing notices and no defect therein shall limit the Holders’ repurchase rights or affect the validity of the proceedings for the repurchase of the Notes pursuant to this Section 15.02. At the Company’s request, given at least five days prior to the date the Fundamental Change Company Notice is to be sent to the Holders (or such shorter period as may be agreed to by the Trustee), the Trustee shall give such notice in the Company’s name and at the Company’s expense; provided, however, that, in all cases, the text of such Fundamental Change Company Notice shall be prepared by the Company. Simultaneously with providing such notice, the Company shall publish a press release 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.
(d) Notwithstanding the foregoing, no Notes may be repurchased by the Company on any date at the option of the Holders upon a Fundamental Change if the principal amount of the Notes has been accelerated, and such acceleration has not been rescinded, on or prior to such date (except in the case of an acceleration resulting from a Default by the Company in the payment of the Fundamental Change Repurchase Price with respect to such Notes). The Paying Agent or Tender Agent, as the case may be, will promptly return to the respective Holders thereof any Physical Notes held by it during the acceleration of the Notes (except in the case of an acceleration resulting from a Default by the Company in the payment of the Fundamental Change Repurchase Price with respect to such Notes), or any instructions for book-entry transfer of the Notes in compliance with the procedures of the Depositary Applicable Procedures shall be deemed to have been cancelled, and, upon such return or cancellation, as the case may be, the Fundamental Change Repurchase Notice with respect thereto shall be deemed to have been withdrawn.
(e) Notwithstanding anything to the contrary in this Indenture, the Company shall not be required to repurchase, or to make an offer to repurchase, the Notes upon a Fundamental Change if a third party makes such an offer in the same manner, at the same time and otherwise in compliance with the requirements for an offer made by the Company as set forth in this Article 15, and such third party purchases all Notes properly surrendered and not validly withdrawn under its offer in the same manner, at the same time and otherwise in compliance with the requirements for an offer made by the Company as set forth in this Article 15.
Appears in 3 contracts
Samples: Indenture (ADESTO TECHNOLOGIES Corp), Indenture (Liveperson Inc), Indenture (Alteryx, Inc.)
Repurchase at Option of Holders Upon a Fundamental Change. (a) If a Fundamental Change occurs at any time prior to the Maturity Date, then each Holder Noteholder shall have the right, at such Holder’s option, to require the Company to repurchase for cash all of such Holder’s Notes, Notes or any portion thereof that is equal to minimum denominations of $1,000 or an integral a multiple of $1,000 in excess thereofprincipal amount, for cash on or after the Close of Business on the date (the “Fundamental Change Repurchase Date”) specified by the Company that is not less than 20 twenty (20) calendar days or and not more than 35 thirty-five (35) calendar days following after the date of the Fundamental Change Company Notice (as defined below) at a repurchase price equal to 100% of the principal amount thereof, plus together with accrued and unpaid interest thereon (including Additional Interest and Filing Additional Interest, if any) to, but excluding, the Fundamental Change Repurchase Date (collectively, the “Fundamental Change Repurchase Price”). Notwithstanding the foregoing, unless if the Fundamental Change Repurchase Date falls is after a Regular Record Date but and on or prior to the corresponding Interest Payment Date to which such Regular Record Date relatesDate, in which case the Company shall instead pay the full amount of accrued and unpaid interest (toincluding Additional Interest and Filing Additional Interest, but excluding, such Interest Payment Dateif any) to Holders of record as of such Regular Record Date, and will be paid on the Fundamental Change Repurchase Price shall be equal Date to 100% the Holder of record on the principal amount of Notes to be repurchased pursuant to this Article 15; provided that the Company shall not be required to repurchase, or to make an offer to repurchase, the Notes upon a Fundamental Change if a third party makes such an offer in the same manner, at the same time and otherwise in compliance with the requirements for an offer made by the Company as set forth in this Section 15.02 and such third party purchases all Notes properly surrendered and not validly withdrawn under its offer in the same manner, at the same time and otherwise in compliance with the requirements for an offer made by the Company as set forth in this Section 15.02.
(b) Record Date. Repurchases of Notes under this Section 15.02 11.01 shall be made, at the option of the Holder thereof, upon:
(i) delivery to the Trustee (or other Paying Agent or tender agent appointed to facilitate by the repurchase (the “Tender Agent”Company) by a Holder of a duly completed notice (the “Fundamental Change Repurchase Notice”) in the form set forth in Attachment 2 to the Form of Note attached hereto as Exhibit A, if the Notes are Physical Notes, or in compliance with the Depositary’s procedures for surrendering interests in Global Notes, if the Notes are Global Notes, in each case on or before the close of business on the reverse of the Note at any time prior the Close of Business Day immediately preceding on the Fundamental Change Repurchase Date; and
(ii) delivery or book-entry transfer of the Notes, if the Notes are Physical Notes, to the Trustee (or other Paying Agent or Tender Agent, as appointed by the case may be, Company) at any time after delivery of the Fundamental Change Repurchase Notice (together with all necessary endorsements for transferendorsements) at the Corporate Trust Office of the Trustee (or other Paying Agent or appointed by the principal office of the Tender Agent located Company) in the United States Borough of America as notified by the Tender Agent to Holders and the TrusteeManhattan, as applicable, or book-entry transfer of the Notes, if the Notes are Global Notes, in compliance with the procedures of the Depositary, in each case such delivery being a condition to receipt by the Holder of the Fundamental Change Repurchase Price therefor; provided that such Fundamental Change Repurchase Price shall be so paid pursuant to this Section 11.01 only if the Note so delivered to the Trustee (or other Paying Agent appointed by the Company) shall conform in all respects to the description thereof in the related Fundamental Change Repurchase Notice. The Fundamental Change Repurchase Notice in respect of any Notes to be repurchased shall state:
(iA) in the case of Physical Notesif certificated, the certificate numbers of the Notes to be delivered for repurchase;
(iiB) the portion of the principal amount of Notes to be repurchased, which must be $1,000 or an integral multiple thereof; and;
(iiiC) that the Notes are to be repurchased by the Company pursuant to the applicable provisions of the Notes and this Indenture; and
(D) if such Fundamental Change Repurchase Notice is delivered prior to the occurrence of a Fundamental Change pursuant to a definitive agreement giving rise to a Fundamental Change, that the Holder acknowledges that the Company’s offer is conditioned on the occurrence of such Fundamental Change. provided, however, that if the Notes are Global Notesnot in certificated form, the Fundamental Change Repurchase Notice must comply with appropriate Depositary proceduresApplicable Procedures. Notwithstanding anything herein Any repurchase by the Company contemplated pursuant to the contrary, any Holder delivering to the Paying Agent or Tender Agent, as the case may be, the Fundamental Change Repurchase Notice contemplated by provisions of this Section 15.02 11.01 shall have be consummated by the right delivery of the consideration to withdraw, in whole or in part, such Fundamental Change Repurchase Notice at any time prior to be received by the close Holder promptly following the later of business on the Business Day immediately preceding the Fundamental Change Repurchase Date by and the time of the book-entry transfer or delivery of a written notice of withdrawal to the Note. The Trustee (or other Paying Agent or Tender Agent, as appointed by the case may be, in accordance with Section 15.03, or in accordance with the customary procedures of the Depository with respect to Global Notes. The Paying Agent or Tender Agent, as the case may be, Company) shall promptly notify the Company of the receipt by it of any Fundamental Change Repurchase Notice or written notice of withdrawal thereofthereof in accordance with the provisions of Section 11.01(c). Any Note that is to be repurchased only in part shall be surrendered to the Trustee (with, if the Company or the Trustee so requires, due endorsement by, or a written instrument of transfer in form satisfactory to the Company and the Trustee duly executed by the Holder thereof or his attorney duly authorized in writing), and the Company shall execute, and the Trustee shall authenticate and make available for delivery to the Holder of such Note without service charge, a new Note or Notes, containing identical terms and conditions, each in an authorized denomination in aggregate principal amount equal to and in exchange for the unrepurchased portion of the principal of the Note so surrendered.
(cb) On or before the 20th Business Day fifth (5th) calendar day after the occurrence of the effective date of a Fundamental Change, the Company shall provide to all Holders of record of the Notes and as of the Trustee, date of the Conversion Agent (Fundamental Change Company Notice at their addresses shown in the case of a Conversion Agent other than Note Register (and to beneficial owners to the Trusteeextent required by applicable law) and the Trustee and Paying Agent (in the case of a Paying Agent other than the Trustee) a written notice (the “Fundamental Change Company Notice”) of the occurrence of the effective date of the such Fundamental Change and of the repurchase right at the option of the Holders arising as a result thereof. In the case of Physical Notes, such notice Such mailing shall be by first class mail or, in the case of Global Notes, such notice shall be delivered in accordance with the applicable procedures of the Depositarymail. Simultaneously with providing such noticeFundamental Change Company Notice, the Company shall publish a notice containing the information set forth included therein once in the Fundamental Change Company Notice a newspaper of general circulation in The City of New York or publish such information on the Company’s website or through such other public medium as the Company may use at that such time. Each Fundamental Change Company Notice shall specify:
(i) the events causing the Fundamental Change;
(ii) the effective date of the Fundamental Change;
(iii) that the last date on which a Holder may must exercise the repurchase right pursuant prior to this Article 15the Close of Business on the Fundamental Change Repurchase Date;
(iv) the Fundamental Change Repurchase Price;
(v) the Fundamental Change Repurchase Date;
(vi) the name and address of the Paying Agent or Tender Agent, as the case may be, and the Conversion Agent, if applicable;
(vii) if applicable, the applicable Conversion Rate and any adjustments to the applicable Conversion Rate as a result of the Fundamental ChangeRate;
(viii) that the Notes with respect to which a Fundamental Change Repurchase Notice has been delivered by a Holder may be converted only if the Holder validly withdraws the Fundamental Change Repurchase Notice in accordance with the terms of this Indenture; and
(ix) the procedures that Holders must follow to require the Company to repurchase their Notes. No failure of the Company to give the foregoing notices and no defect therein shall limit the HoldersNoteholders’ repurchase rights or affect the validity of the proceedings for the repurchase of the Notes pursuant to this Section 15.02. At the Company’s request, given at least five days prior 11.01.
(c) A Fundamental Change Repurchase Notice may be withdrawn by delivering a written notice of withdrawal to the date Paying Agent in accordance with the Fundamental Change Company Notice is at any time prior to be sent (or such shorter period as may be agreed to by the Trustee), Close of Business on the Trustee shall give such notice in the Company’s name and at the Company’s expense; provided, however, that, in all cases, the text of such Fundamental Change Company Notice shall be prepared by the Company.Repurchase Date, specifying:
(di) Notwithstanding the foregoing, no Notes may be repurchased by the Company on any date at the option of the Holders upon a Fundamental Change if the principal amount of the Notes has been acceleratedwith respect to which such notice of withdrawal is being submitted;
(ii) the principal amount, and if any, of such acceleration has not been rescinded, on or prior Notes that remains subject to such date (except in the case of an acceleration resulting from a Default by the Company in the payment of the original Fundamental Change Repurchase Price Notice, which portion must be in principal amounts of $1,000 or an integral multiple of $1,000; and
(iii) if certificated Notes have been issued, the certificate numbers of the withdrawn Notes; provided, however, that if the Notes are not in certificated form, the notice must comply with respect to such Notes)Applicable Procedures. The Paying Agent or Tender Agent, as the case may be, will promptly return to the respective Holders thereof any Physical certificated Notes held with respect to which a Fundamental Change Repurchase Notice has been withdrawn in compliance with the provisions of this Section 11.01(c). If the Notes are not in certificated form, such return must comply with the appropriate procedures of the Depositary. If a Fundamental Change Repurchase Notice is given and then subsequently withdrawn in accordance with this Section 11.01(c), then the Company shall not be obligated to repurchase any Notes listed in such Fundamental Change Repurchase Notice.
(d) On or prior to 1:00 p.m. (local time in The City of New York) on the Business Day following the Fundamental Change Repurchase Date, the Company will deposit with the Trustee (or other Paying Agent appointed by it during the acceleration Company) or if the Company is acting as its own Paying Agent, set aside, segregate and hold in trust in accordance with this Indenture an amount of money or securities sufficient to repurchase as of the Fundamental Change Repurchase Date all of the Notes to be repurchased as of such date at the Fundamental Change Repurchase Price. Subject to receipt of funds and/or Notes by the Trustee (except in the case of an acceleration resulting from a Default or other Paying Agent appointed by the Company in and subject to extension if necessary to comply with the provisions of the Investment Company Act of 1940), payment for Notes surrendered for repurchase (and not withdrawn) prior to the Close of Business on the Fundamental Change Repurchase Date will be made promptly after the later of (x) the Fundamental Change Repurchase Date with respect to such Note (provided the Holder has satisfied the conditions to the payment of the Fundamental Change Repurchase Price with respect in this Section 11.01), and (y) the time of book-entry transfer or the delivery of such Note to the Trustee (or other Paying Agent appointed by the Company) by the Holder thereof in the manner required by this Section 11.01 by mailing checks for the amount payable to the Holders of such Notes entitled thereto as they shall appear in the Note Register (in the case of certificated Notes) by wire transfer of immediately available funds to the account of the Depositary or its nominee (if the Notes are not in certificated form). The Trustee shall, promptly after such payment return to the Company any funds in excess of the Fundamental Change Repurchase Price.
(e) If the Trustee (or other Paying Agent appointed by the Company) holds money or securities sufficient to repurchase as of the Fundamental Change Repurchase Date all the Notes or portions thereof that are to be purchased as of the Business Day following the Fundamental Change Repurchase Date, then on and after the Fundamental Change Repurchase Date (i) such Notes will cease to be Outstanding, (ii) interest (including Additional Interest and Filing Additional Interest, if any) will cease to accrue on such Notes), whether or any instructions for not book-entry transfer of the Notes in compliance with has been made or the procedures of the Depositary shall be deemed to Notes have been cancelled, and, upon such return delivered to the Trustee or cancellationPaying Agent, as the case may be, and (iii) all other rights of the Holders of such Notes will terminate other than the right to receive the Fundamental Change Repurchase Notice with respect thereto shall be deemed to have been withdrawnPrice upon delivery or transfer of such Notes.
Appears in 3 contracts
Samples: Indenture (Prospect Capital Corp), Indenture (Prospect Capital Corp), Indenture (Prospect Capital Corp)
Repurchase at Option of Holders Upon a Fundamental Change. (a) If a Fundamental Change occurs at any time prior to the Maturity Datetime, each Holder shall have the right, at such Holder’s option, to require the Company to repurchase for cash all of such Holder’s Notes, or any portion thereof that is equal to minimum denominations of $1,000 or an integral multiple of $1,000 in excess thereof1,000, on the date (the “Fundamental Change Repurchase Date”) specified by the Company that is not less than 20 calendar days Business Days or more than 35 calendar days 30 Business Days following the date of the Fundamental Change Company Notice at a repurchase price equal to 100% of the principal amount thereof, plus accrued and unpaid interest thereon to, but excluding, the Fundamental Change Repurchase Date (the “Fundamental Change Repurchase Price”), unless the Fundamental Change Repurchase Date falls after a Regular Record Date but on or prior to the Interest Payment Date to which such Regular Record Date relates, in which case the Company shall instead pay the full amount of accrued and unpaid interest (to, but excluding, such Interest Payment Date) to Holders of record as of such Regular Record Date, and the Fundamental Change Repurchase Price shall be equal to 100% of the principal amount of Notes to be repurchased pursuant to this Article 15; provided that the Company shall not be required to repurchase, or to make an offer to repurchase, the Notes upon a Fundamental Change if a third party makes such an offer in the same manner, at the same time and otherwise in compliance with the requirements for an offer made by the Company as set forth in this Section 15.02 and such third party purchases all Notes properly surrendered and not validly withdrawn under its offer in the same manner, at the same time and otherwise in compliance with the requirements for an offer made by the Company as set forth in this Section 15.02XIV.
(b) Repurchases of Notes under this Section 15.02 14.01 shall be made, at the option of the Holder thereof, upon:
(i) delivery to the Paying Agent or tender agent appointed to facilitate the repurchase (the “Tender Agent”) by a Holder of a duly completed notice (the “Fundamental Change Repurchase Notice”) substantially in the form set forth in Attachment 2 to the Form of Note attached hereto as Exhibit A, if the Notes are Physical Notes, or in compliance with the Depositary’s procedures for surrendering interests in Global Notes, if the Notes are Global Notes, in each case on or before the close of business on the Business Day immediately preceding the Fundamental Change Repurchase Date; and
(ii) delivery of the Notes, if the Notes are Physical Notes, to the Paying Agent or Tender Agent, as the case may be, at any time after delivery of the Fundamental Change Repurchase Notice (together with all necessary endorsements for transfer) at the Corporate Trust Office of the Paying Agent or the principal office of the Tender Agent located in the United States of America as notified by the Tender Agent to Holders and the Trustee, as applicable, or book-entry transfer of the Notes, if the Notes are Global Notes, in compliance with the procedures of the Depositary, in each case such delivery being a condition to receipt by the Holder of the Fundamental Change Repurchase Price therefor. The Fundamental Change Repurchase Notice in respect of any Notes to be repurchased shall state:
(i) in the case of Physical Notes, the certificate numbers of the Notes to be delivered for repurchase;
(ii) the portion of the principal amount of Notes to be repurchased, which must be $1,000 or an integral multiple thereof; and
(iii) that the Notes are to be repurchased by the Company pursuant to the applicable provisions of the Notes and this Indenture; provided, however, that if the Notes are Global Notes, the Fundamental Change Repurchase Notice must comply with appropriate Depositary procedures. Notwithstanding anything herein to the contrary, any Holder delivering to the Paying Agent or Tender Agent, as the case may be, the Fundamental Change Repurchase Notice contemplated by this Section 15.02 shall have the right to withdraw, in whole or in part, such Fundamental Change Repurchase Notice at any time prior to the close of business on the Business Day immediately preceding the Fundamental Change Repurchase Date by delivery of a written notice of withdrawal to the Paying Agent or Tender Agent, as the case may be, in accordance with Section 15.03, or in accordance with the customary procedures of the Depository with respect to Global Notes. The Paying Agent or Tender Agent, as the case may be, shall promptly notify the Company of the receipt by it of any Fundamental Change Repurchase Notice or written notice of withdrawal thereof.
(c) On or before the 20th Business Day after the occurrence of the effective date of a Fundamental Change, the Company shall provide to all Holders of Notes and the Trustee, the Conversion Agent (in the case of a Conversion Agent other than the Trustee) and the Paying Agent (in the case of a Paying Agent other than the Trustee) a notice (the “Fundamental Change Company Notice”) of the occurrence of the effective date of the Fundamental Change and of the repurchase right at the option of the Holders arising as a result thereof. In the case of Physical Notes, such notice shall be by first class mail or, in the case of Global Notes, such notice shall be delivered in accordance with the applicable procedures of the Depositary. Simultaneously with providing such notice, the Company shall publish a notice containing the information set forth in the Fundamental Change Company Notice on the Company’s website or through such other public medium as the Company may use at that time. Each Fundamental Change Company Notice shall specify:
(i) the events causing the Fundamental Change;
(ii) the effective date of the Fundamental Change;
(iii) the last date on which a Holder may exercise the repurchase right pursuant to this Article 15;
(iv) the Fundamental Change Repurchase Price;
(v) the Fundamental Change Repurchase Date;
(vi) the name and address of the Paying Agent or Tender Agent, as the case may be, and the Conversion Agent, if applicable;
(vii) if applicable, the Conversion Rate and any adjustments to the Conversion Rate as a result of the Fundamental Change;
(viii) that the Notes with respect to which a Fundamental Change Repurchase Notice has been delivered by a Holder may be converted only if the Holder validly withdraws the Fundamental Change Repurchase Notice in accordance with the terms of this Indenture; and
(ix) the procedures that Holders must follow to require the Company to repurchase their Notes. No failure of the Company to give the foregoing notices and no defect therein shall limit the Holders’ repurchase rights or affect the validity of the proceedings for the repurchase of the Notes pursuant to this Section 15.02. At the Company’s request, given at least five days prior to the date the Fundamental Change Company Notice is to be sent (or such shorter period as may be agreed to by the Trustee), the Trustee shall give such notice in the Company’s name and at the Company’s expense; provided, however, that, in all cases, the text of such Fundamental Change Company Notice shall be prepared by the Company.
(d) Notwithstanding the foregoing, no Notes may be repurchased by the Company on any date at the option of the Holders upon a Fundamental Change if the principal amount of the Notes has been accelerated, and such acceleration has not been rescinded, on or prior to such date (except in the case of an acceleration resulting from a Default by the Company in the payment of the Fundamental Change Repurchase Price with respect to such Notes). The Paying Agent or Tender Agent, as the case may be, will promptly return to the respective Holders thereof any Physical Notes held by it during the acceleration of the Notes (except in the case of an acceleration resulting from a Default by the Company in the payment of the Fundamental Change Repurchase Price with respect to such Notes), or any instructions for book-entry transfer of the Notes in compliance with the procedures of the Depositary shall be deemed to have been cancelled, and, upon such return or cancellation, as the case may be, the Fundamental Change Repurchase Notice with respect thereto shall be deemed to have been withdrawn.
Appears in 3 contracts
Samples: Indenture (Encore Capital Group Inc), Indenture (HCI Group, Inc.), Indenture (Encore Capital Group Inc)
Repurchase at Option of Holders Upon a Fundamental Change. (a) If a Fundamental Change occurs at any time prior to the Maturity Datetime, each Holder shall have the right, at such Holder’s option, to require the Company to repurchase for cash all of such Holder’s Notes, or any portion thereof that is equal to minimum denominations of $1,000 or an integral multiple of $1,000 in excess thereof1,000, on the date (the “Fundamental Change Repurchase Date”) specified by the Company that is not less than 20 calendar days or more than 35 calendar days following the date of the Fundamental Change Company Notice at a repurchase price equal to 100% of the principal amount thereof, plus accrued and unpaid interest thereon to, but excluding, the Fundamental Change Repurchase Date (the “Fundamental Change Repurchase Price”), unless the Fundamental Change Repurchase Date falls after a Regular Record Date but on or prior to the Interest Payment Date to which such Regular Record Date relates, in which case the Company shall instead pay the full amount of accrued and unpaid interest (to, but excluding, such Interest Payment Date) to Holders of record as of such Regular Record Date, and the Fundamental Change Repurchase Price shall be equal to 100% of the principal amount of Notes to be repurchased pursuant to this Article 15; provided that . The Fundamental Change Repurchase Date shall be subject to postponement in order to allow the Company shall not be required to repurchase, or comply with applicable law as a result of changes to make an offer to repurchase, such applicable law occurring after the Notes upon a Fundamental Change if a third party makes such an offer in the same manner, at the same time and otherwise in compliance with the requirements for an offer made by the Company as set forth in date of this Section 15.02 and such third party purchases all Notes properly surrendered and not validly withdrawn under its offer in the same manner, at the same time and otherwise in compliance with the requirements for an offer made by the Company as set forth in this Section 15.02Indenture.
(b) Repurchases of Notes under this Section 15.02 shall be made, at the option of the Holder thereof, upon:
(i) delivery to the Paying Agent or tender agent appointed to facilitate the repurchase (the “Tender Agent”) by a Holder of a duly completed notice (the “Fundamental Change Repurchase Notice”) in the form set forth in Attachment 2 to the Form of Note attached hereto as Exhibit A, if the Notes are Physical Notes, or in compliance with the Depositary’s procedures for surrendering interests in Global Notes, if the Notes are Global Notes, in each case on or before the close of business on the Business Day immediately preceding the Fundamental Change Repurchase Date; and
(ii) delivery of the Notes, if the Notes are Physical Notes, to the Paying Agent or Tender Agent, as the case may be, at any time after delivery of the Fundamental Change Repurchase Notice (together with all necessary endorsements for transfer) and on or prior to the close of business on the Business Day immediately preceding the Fundamental Change Repurchase Date at the Corporate Trust Office office of the Paying Agent or the principal office of the Tender Agent located in the United States of America as notified by the Tender Agent to Holders and the Trustee, as applicableAgent, or book-entry transfer of the Notes, if the Notes are Global Notes, in compliance with the procedures of the Depositary, in each case such delivery being a condition to receipt by the Holder of the Fundamental Change Repurchase Price therefor. The Fundamental Change Repurchase Notice in respect of any Notes to be repurchased shall state:
(i) in the case of Physical Notes, the certificate numbers of the Notes to be delivered for repurchase;
(ii) the portion of the principal amount of Notes to be repurchased, which must be $1,000 or an integral multiple thereof; and
(iii) that the Notes are to be repurchased by the Company pursuant to the applicable provisions of the Notes and this Indenture; provided, however, that if the Notes are Global Notes, the Fundamental Change Repurchase Notice must comply with appropriate Depositary procedures. Notwithstanding anything herein to the contrary, any Holder delivering to the Paying Agent or Tender Agent, as the case may be, the Fundamental Change Repurchase Notice contemplated by this Section 15.02 shall have the right to withdraw, in whole or in part, such Fundamental Change Repurchase Notice at any time prior to the close of business on the Business Day immediately preceding the Fundamental Change Repurchase Date by delivery of a written notice of withdrawal to the Paying Agent or Tender Agent, as the case may be, in accordance with Section 15.03, or in accordance with the customary procedures of the Depository with respect to Global Notes. The Paying Agent or Tender Agent, as the case may be, shall promptly notify the Company of the receipt by it of any Fundamental Change Repurchase Notice or written notice of withdrawal thereof.
(c) On or before the 20th Business Day calendar day after the occurrence of the effective date of a Fundamental Change, the Company shall provide to all Holders of Notes and the Trustee, the Conversion Agent (in the case of a Conversion Agent other than the Trustee) Trustee and the Paying Agent (in the case of a Paying Agent other than the Trustee) a notice (the “Fundamental Change Company Notice”) of the occurrence of the effective date of the Fundamental Change and of the repurchase right at the option of the Holders arising as a result thereof. In the case of Physical Notes, such notice shall be by first class mail or, in the case of Global Notes, such notice shall be delivered in accordance with the applicable procedures of the Depositary. Simultaneously with providing such notice, the Company shall publish a notice containing the information set forth in the Fundamental Change Company Notice on the Company’s website or through such other public medium as the Company may use at that time. Each Fundamental Change Company Notice shall specify:
(i) the events causing the Fundamental Change;
(ii) the effective date of the Fundamental Change;
(iii) the last date on which a Holder may exercise the repurchase right pursuant to this Article 15;
(iv) the Fundamental Change Repurchase Price;
(v) the Fundamental Change Repurchase Date;
(vi) the name and address of the Paying Agent or Tender Agent, as the case may be, and the Conversion Agent, if applicable;
(vii) if applicable, the Conversion Rate and any adjustments to the Conversion Rate as a result of the Fundamental ChangeRate;
(viii) that the Notes with respect to which a Fundamental Change Repurchase Notice has been delivered by a Holder may be converted only if the Holder validly withdraws the Fundamental Change Repurchase Notice in accordance with the terms of this Indenture; and
(ix) the procedures that Holders must follow to require the Company to repurchase their Notes; provided, however, that, if the Notes are Global Notes, the Holders (and holders of a beneficial interest in such Global Notes) must comply with the applicable procedures of the Depositary. No failure of the Company to give the foregoing notices and no defect therein shall limit the Holders’ repurchase rights or affect the validity of the proceedings for the repurchase of the Notes pursuant to this Section 15.02. At the Company’s request, given at least five days prior to the date the Fundamental Change Company Notice is to be sent (or such shorter period as may be agreed to by the Trustee), the Trustee shall give such notice in the Company’s name and at the Company’s expense; provided, however, that, in all cases, the text of such Fundamental Change Company Notice shall be prepared by the Company.
(d) Notwithstanding the foregoing, the Company shall not be required to purchase, or to make an offer to purchase, the Notes upon a Fundamental Change if a third party makes such an offer in the same manner, at the same time and otherwise in compliance with the requirements for an offer made by the Company as set forth above, and such third party purchases all Notes properly surrendered and not validly withdrawn under its offer in the same manner, at the same time and otherwise in compliance with the requirements for an offer made by the Company as set forth above.
(e) Notwithstanding the foregoing, the Company shall not be required to give such notice or repurchase the Notes as described above upon a Fundamental Change pursuant to clause (b) of the definition thereof if (1) such Fundamental Change results in the Notes becoming convertible (pursuant to Section 14.07) into an amount of cash per Note greater than the Fundamental Change Repurchase Price (assuming the maximum amount of accrued interest would be payable based on the latest possible Fundamental Change Repurchase Date) and (2) the Company provides timely notice of the Holders’ right to convert their Notes based on such Fundamental Change as described in Section 14.01(b)(iii). The provisions set forth in this (e) are referred to in this Indenture as the “Adequate Cash Conversion Provisions.”
(f) Notwithstanding the foregoing, no Notes may be repurchased by the Company on any date at the option of the Holders upon a Fundamental Change if the principal amount of the Notes has been accelerated, and such acceleration has not been rescinded, on or prior to such date (except in the case of an acceleration resulting from a Default by the Company in the payment of the Fundamental Change Repurchase Price with respect to such Notes). The Paying Agent or Tender Agent, as the case may be, will promptly return to the respective Holders thereof any Physical Notes held by it during the acceleration of the Notes (except in the case of an acceleration resulting from a Default by the Company in the payment of the Fundamental Change Repurchase Price with respect to such Notes), or any instructions for book-entry transfer of the Notes in compliance with the procedures of the Depositary shall be deemed to have been cancelled, and, upon such return or cancellation, as the case may be, the Fundamental Change Repurchase Notice with respect thereto shall be deemed to have been withdrawn.
Appears in 3 contracts
Samples: Indenture (Wayfair Inc.), Indenture (Wayfair Inc.), Indenture (Wayfair Inc.)
Repurchase at Option of Holders Upon a Fundamental Change. (a) If a Fundamental Change occurs at any time prior to the Maturity Datetime, each Holder shall have the right, at such Holder’s option, to require the Company to repurchase for cash all of such Holder’s Notes, or any portion thereof that is equal to minimum denominations of $1,000 or an integral multiple of $1,000 in excess thereof1,000, on the date (the “Fundamental Change Repurchase Date”) specified by the Company that is not less than 20 calendar days Business Days or more than 35 calendar days Business Days following the date of the Fundamental Change Company Notice at a repurchase price equal to 100% of the principal amount thereof, plus accrued and unpaid interest thereon to, but excluding, the Fundamental Change Repurchase Date (the “Fundamental Change Repurchase Price”), unless the Fundamental Change Repurchase Date falls after a Regular Record Date but on or prior to the Interest Payment Date to which such Regular Record Date relates, in which case the Company shall instead pay the full amount of accrued and unpaid interest (to, but excluding, such Interest Payment Date) to Holders of record as of such Regular Record Date, and the Fundamental Change Repurchase Price shall be equal to 100% of the principal amount of Notes to be repurchased pursuant to this Article 15; provided that the Company shall not be required to repurchase, or to make an offer to repurchase, the Notes upon a Fundamental Change if a third party makes such an offer in the same manner, at the same time and otherwise in compliance with the requirements for an offer made by the Company as set forth in this Section 15.02 and such third party purchases all Notes properly surrendered and not validly withdrawn under its offer in the same manner, at the same time and otherwise in compliance with the requirements for an offer made by the Company as set forth in this Section 15.0212.
(b) Repurchases of Notes under this Section 15.02 12.02 shall be made, at the option of the Holder thereof, upon:
(i) delivery to the Paying Agent or tender agent appointed to facilitate the repurchase (the “Tender Agent”) by a Holder of a duly completed notice (the “Fundamental Change Repurchase Notice”) in the form set forth in Attachment 2 to the Form of Note attached hereto as Exhibit A, if the Notes are Physical Notes, or in compliance with the Depositary’s procedures for surrendering interests in Global Notes, if the Notes are Global Notes, in each case on or before the close of business on the Business Day immediately preceding the Fundamental Change Repurchase Date; and
(ii) delivery of the Notes, if the Notes are Physical Notes, to the Paying Agent or Tender Agent, as the case may be, at any time after delivery of the Fundamental Change Repurchase Notice (together with all necessary endorsements for transfer) at the Corporate Trust Office of the Trustee (or, if at any time the Trustee is not serving as the Paying Agent Agent, such corporate office or the principal office of the Tender Agent located in the United States of America agency as notified shall be designated by the Tender Agent to Holders and the Trustee, as applicablePaying Agent), or book-entry transfer of the Notes, if the Notes are Global Notes, in compliance with the procedures of the Depositary, in each case such delivery being a condition to receipt by the Holder of the Fundamental Change Repurchase Price therefor. The Fundamental Change Repurchase Notice in respect of any Notes to be repurchased shall state:
(i) in the case of Physical Notes, the certificate numbers of the Notes to be delivered for repurchase;
(ii) the portion of the principal amount of Notes to be repurchased, which must be $1,000 or an integral multiple thereof; and
(iii) that the Notes are to be repurchased by the Company pursuant to the applicable provisions of the Notes and this the Indenture; provided, however, that if the Notes are Global Notes, the Fundamental Change Repurchase Notice must comply with appropriate the procedures of the Depositary proceduresin effect at such time. Notwithstanding anything herein to the contrary, any Holder delivering to the Paying Agent or Tender Agent, as the case may be, the Fundamental Change Repurchase Notice contemplated by this Section 15.02 12.02 shall have the right to withdraw, in whole or in part, such Fundamental Change Repurchase Notice at any time prior to the close of business on the Business Day immediately preceding the Fundamental Change Repurchase Date by delivery of a written notice of withdrawal to the Paying Agent or Tender Agent, as the case may be, in accordance with Section 15.03, or in accordance with the customary procedures of the Depository with respect to Global Notes12.03. The Paying Agent or Tender Agent, as the case may be, shall promptly notify the Company of the receipt by it of any Fundamental Change Repurchase Notice or written notice of withdrawal thereof.
(c) On or before the 20th Business Day calendar day after the occurrence of the effective date of a Fundamental Change, the Company shall provide to all Holders of Notes and the Trustee, the Conversion Agent (in the case of a Conversion Agent other than the Trustee) Trustee and the Paying Agent (in the case of a Paying Agent other than the Trustee) a notice (the “Fundamental Change Company Notice”) of the occurrence of the effective date of the Fundamental Change and of the repurchase right at the option of the Holders arising as a result thereof. In the case of Physical Notes, such notice shall be by first class mail or, in the case of Global Notes, such notice shall be delivered in accordance with the applicable procedures of the Depositary. Simultaneously with providing such notice, the Company shall publish a notice containing the information set forth in the Fundamental Change Company Notice in a newspaper of general circulation in The City of New York or publish such information on the Company’s website or through such other public medium as the Company may use at that time. Each Fundamental Change Company Notice shall specify:
(i) the events causing the Fundamental Change;
(ii) the effective date of the Fundamental Change;
(iii) the last date on which a Holder may exercise the repurchase right pursuant to this Article 1512;
(iv) the Fundamental Change Repurchase Price;
(v) the Fundamental Change Repurchase Date;
(vi) the name and address of the Paying Agent or Tender Agent, as the case may be, and the Conversion Agent, if applicable;
(vii) if applicable, the Conversion Rate and any adjustments to the Conversion Rate as a result of the Fundamental ChangeRate;
(viii) that the Notes with respect to which a Fundamental Change Repurchase Notice has been delivered by a Holder may be converted only if the Holder validly withdraws the Fundamental Change Repurchase Notice in accordance with the terms of this the Indenture; and
(ix) the procedures that Holders must follow to require the Company to repurchase their Notes. No failure of the Company to give the foregoing notices and no defect therein shall limit the Holders’ repurchase rights or affect the validity of the proceedings for the repurchase of the Notes pursuant to this Section 15.0212.02. At the Company’s request, given at least five days prior to the date the Fundamental Change Company Notice is to be sent (or such shorter period as may be agreed to by the Trustee), the Trustee shall give such notice in the Company’s name and at the Company’s expense; provided, however, that, in all cases, the text of such Fundamental Change Company Notice shall be prepared by the Company.
(d) Notwithstanding the foregoing, no Notes may be repurchased by the Company on any date at the option of the Holders upon a Fundamental Change if the principal amount of the Notes has been accelerated, and such acceleration has not been rescinded, on or prior to such date (except in the case of an acceleration resulting from a Default by the Company in the payment of the Fundamental Change Repurchase Price with respect to such Notes). The Paying Agent or Tender Agent, as the case may be, will promptly return to the respective Holders thereof any Physical Notes held by it during the acceleration of the Notes (except in the case of an acceleration resulting from a Default by the Company in the payment of the Fundamental Change Repurchase Price with respect to such Notes), or any instructions for book-entry transfer of the Notes in compliance with the procedures of the Depositary shall be deemed to have been cancelled, and, upon such return or cancellation, as the case may be, the Fundamental Change Repurchase Notice with respect thereto shall be deemed to have been withdrawn.
Appears in 3 contracts
Samples: Second Supplemental Indenture (TimkenSteel Corp), Convertible Notes Exchange Agreement (TimkenSteel Corp), First Supplemental Indenture (TimkenSteel Corp)
Repurchase at Option of Holders Upon a Fundamental Change. (a) If a Fundamental Change occurs at any time prior to the Maturity Date, each Holder shall have the right, at such Holder’s option, to require the Company to repurchase for cash all of such Holder’s Notes, or any portion thereof that is equal to minimum denominations of $1,000 or an integral multiple of $1,000 in excess thereof1,000, on the date (the “Fundamental Change Repurchase Date”) specified by the Company that is not less than 20 calendar days or more than 35 calendar days following the date of the Fundamental Change Company Notice at a repurchase price equal to 100% of the principal amount thereof, plus accrued and unpaid interest thereon to, but excluding, the Fundamental Change Repurchase Date (the “Fundamental Change Repurchase Price”), unless the Fundamental Change Repurchase Date falls after a Regular Record Date but on or prior to the Interest Payment Date to which such Regular Record Date relates, in which case the Company shall instead pay the full amount of accrued and unpaid interest (to, but excluding, such Interest Payment Date) to Holders of record as of such Regular Record Date, and the Fundamental Change Repurchase Price shall be equal to 100% of the principal amount of Notes to be repurchased pursuant to this Article 15; provided that the Company shall not be required to repurchase, or to make an offer to repurchase, the Notes upon a Fundamental Change if a third party makes such an offer in the same manner, at the same time and otherwise in compliance with the requirements for an offer made by the Company as set forth in this Section 15.02 and such third party purchases all Notes properly surrendered and not validly withdrawn under its offer in the same manner, at the same time and otherwise in compliance with the requirements for an offer made by the Company as set forth in this Section 15.0214.
(b) Repurchases of Notes under this Section 15.02 14.02 shall be made, at the option of the Holder thereof, upon:
(i) delivery to the Paying Agent or tender agent appointed to facilitate the repurchase (the “Tender Agent”) by a Holder of a duly completed notice (the “Fundamental Change Repurchase Notice”) in the form set forth in Attachment 2 to the Form of Note attached hereto as Exhibit A, if the Notes are Physical Notes, or in compliance with the Depositary’s procedures for surrendering interests in Global Notes, if the Notes are Global Notes, in each case on or before the close of business on the Business Day immediately preceding the Fundamental Change Repurchase Date; and
(ii) delivery of the Notes, if the Notes are Physical Notes, to the Paying Agent or Tender Agent, as the case may be, at any time after delivery of the Fundamental Change Repurchase Notice (together with all necessary endorsements for transfer) at the Corporate Trust Office of the Paying Agent or the principal office of the Tender Agent located in the United States of America as notified by the Tender Agent to Holders and the Trustee, as applicableAgent, or book-entry transfer of the Notes, if the Notes are Global Notes, in compliance with the procedures of the Depositary, in each case such delivery being a condition to receipt by the Holder of the Fundamental Change Repurchase Price therefor. The Fundamental Change Repurchase Notice in respect of any Notes to be repurchased shall state:
(i) in the case of Physical Notes, the certificate numbers of the Notes to be delivered for repurchase;
(ii) the portion of the principal amount of Notes to be repurchased, which must be $1,000 or an integral multiple thereof; and
(iii) that the Notes are to be repurchased by the Company pursuant to the applicable provisions of the Notes and this Indenture; provided, however, that if the Notes are Global Notes, the Fundamental Change Repurchase Notice must comply with appropriate Depositary procedures. Notwithstanding anything herein to the contrary, any Holder delivering to the Paying Agent or Tender Agent, as the case may be, the Fundamental Change Repurchase Notice contemplated by this Section 15.02 14.02 shall have the right to withdraw, in whole or in part, such Fundamental Change Repurchase Notice at any time prior to the close of business on the Business Day immediately preceding the Fundamental Change Repurchase Date by delivery of a written notice of withdrawal to the Paying Agent or Tender Agent, as the case may be, in accordance with Section 15.0314.03, in the case of Physical Notes, or in accordance with through the customary applicable procedures of the Depository with respect to Depositary, in the case of Global Notes. The Paying Agent or Tender Agent, as the case may be, shall promptly notify the Company of the receipt by it of any Fundamental Change Repurchase Notice or written notice of withdrawal thereof.
(c) On or before the 20th Business Day day after the occurrence of the effective date of a Fundamental Change, the Company shall provide to all Holders of Notes and the Trustee, the Conversion Agent (in the case of a Conversion Agent other than the Trustee) Trustee and the Paying Agent (in the case of a Paying Agent other than the Trustee) a notice (the “Fundamental Change Company Notice”) of the occurrence of the effective date of the a Fundamental Change and of the repurchase right at the option of the Holders arising as a result thereof. In the case of Physical Notes, such notice shall be by first class mail or, in the case of Global Notes, such notice shall be delivered in accordance with the applicable procedures of the Depositary. Simultaneously with providing such notice, the Company shall publish a notice containing the information set forth in the Fundamental Change Company Notice on the Company’s website or through such other public medium as the Company may use at that time. Each Fundamental Change Company Notice shall specify:
(i) the events causing the Fundamental Change;
(ii) the effective date of the Fundamental Change;
(iii) the last date on which a Holder may exercise the repurchase right pursuant to this Article 1514;
(iv) the Fundamental Change Repurchase Price;
(v) the Fundamental Change Repurchase Date;
(vi) the name and address of the Paying Agent or Tender Agent, as the case may be, and the Conversion Agent, if applicable;
(vii) if applicable, the Conversion Rate and any adjustments to the Conversion Rate as a result of the Fundamental ChangeRate;
(viii) that the Notes with respect to which a Fundamental Change Repurchase Notice has been delivered by a Holder may be converted only if the Holder validly withdraws the Fundamental Change Repurchase Notice in accordance with the terms of this Indenture; and
(ix) the procedures that Holders must follow to require the Company to repurchase their Notes. No failure of the Company to give the foregoing notices and no defect therein shall limit the Holders’ repurchase rights or affect the validity of the proceedings for the repurchase of the Notes pursuant to this Section 15.0214.02. At the Company’s request, given at least five days prior to the date the Fundamental Change Company Notice is to be sent (or such shorter period as may be agreed to by the Trustee), the Trustee shall give such notice in the Company’s name and at the Company’s expense; provided, however, that, in all cases, the text of such Fundamental Change Company Notice shall be prepared by the CompanyCompany and such request is made by the Company at least five (5) Business Days (or such shorter period as may be agreed to by the Trustee) prior to the date such notice is required to be sent to Holders.
(d) Notwithstanding the foregoing, no Notes may be repurchased by the Company on any date at the option of the Holders upon a Fundamental Change if the principal amount of the Notes has been accelerated, and such acceleration has not been rescinded, on or prior to such date (except in the case of an acceleration resulting from a Default by the Company in the payment of the Fundamental Change Repurchase Price with respect to such Notes). The Paying Agent or Tender Agent, as the case may be, will promptly return to the respective Holders thereof any Physical Notes held by it during the acceleration of the Notes (except in the case of an acceleration resulting from a Default by the Company in the payment of the Fundamental Change Repurchase Price with respect to such Notes), or any instructions for book-entry transfer of the Notes in compliance with the procedures of the Depositary shall be deemed to have been cancelledcanceled, and, upon such return or cancellation, as the case may be, the Fundamental Change Repurchase Notice with respect thereto shall be deemed to have been withdrawn.
Appears in 3 contracts
Samples: Indenture (Linkedin Corp), Indenture (Twitter, Inc.), Indenture (Twitter, Inc.)
Repurchase at Option of Holders Upon a Fundamental Change. (a) If a Fundamental Change occurs at any time prior to the Maturity Date, each Holder shall have the right, at such Holder’s option, to require the Company to repurchase for cash all of such Holder’s Notes, or any portion thereof properly surrendered and not validly withdrawn pursuant to Section 15.03 that is equal to minimum denominations of $1,000 or an integral multiple of $1,000 in excess thereof1,000, on the date (the “Fundamental Change Repurchase Date”) specified by the Company that is not less than 20 calendar days Business Days or more than 35 calendar days Business Days following the date of the Fundamental Change Company Notice at a repurchase price equal to 100% of the principal amount thereof, plus accrued and unpaid interest thereon to, but excluding, the Fundamental Change Repurchase Date (“Accrued Interest”) plus all unpaid interest from the Fundamental Change Repurchase Date to, but excluding, the Maturity Date (the “Make-Whole Interest Payment”) (together, the “Fundamental Change Repurchase Price”), ) unless the Fundamental Change Repurchase Date falls after a Regular Record Date but on or prior to the Interest Payment Date to which such Regular Record Date relates, in which case the Company shall instead pay the full amount of accrued and unpaid interest (to, but excluding, such the Accrued Interest Payment Date) to Holders of record as of such Regular Record Date, and the Fundamental Change Repurchase Price shall be equal to 100% of the principal amount of Notes to be repurchased plus the Make-Whole Interest Payment pursuant to this Article 15; provided that the Company shall not be required to repurchase, or to make an offer to repurchase, the Notes upon a Fundamental Change if a third party makes such an offer in the same manner, at the same time and otherwise in compliance with the requirements for an offer made by the Company as set forth in this Section 15.02 and such third party purchases all Notes properly surrendered and not validly withdrawn under its offer in the same manner, at the same time and otherwise in compliance with the requirements for an offer made by the Company as set forth in this Section 15.02.
(b) Repurchases of Notes under this Section 15.02 shall be made, at the option of the Holder thereof, upon:
(i) delivery to the Paying Agent or tender agent appointed to facilitate the repurchase (the “Tender Agent”) by a Holder of a duly completed notice (the “Fundamental Change Repurchase Notice”) in the form set forth in Attachment 2 to the Form of Note attached hereto as Exhibit A, if the Notes are Physical Notes, or in compliance with the Depositary’s procedures for surrendering interests in Global Notes, if the Notes are Global Notes, in each case on or before the close of business on the Business Day immediately preceding the Fundamental Change Repurchase Date; and
(ii) delivery of the Notes, if the Notes are Physical Notes, to the Paying Agent or Tender Agent, as the case may be, at any time after delivery of the Fundamental Change Repurchase Notice (together with all necessary endorsements for transfer) at the Corporate Trust Office of the Paying Agent or the principal office of the Tender Agent located in the United States of America as notified by the Tender Agent to Holders and the Trustee, as applicableAgent, or book-entry transfer of the Notes, if the Notes are Global Notes, in compliance with the procedures of the Depositary, in each case such delivery being a condition to receipt by the Holder of the Fundamental Change Repurchase Price therefor. The Fundamental Change Repurchase Notice in respect of any Physical Notes to be repurchased shall state:
(i) in the case of Physical Notes, the certificate numbers of the Notes to be delivered for repurchase;
(ii) the portion of the principal amount of Notes to be repurchased, which must be $1,000 or an integral multiple thereof; and
(iii) that the Notes are to be repurchased by the Company pursuant to the applicable provisions of the Notes and this Indenture; provided, however, that if . If the Notes are Global Notes, to exercise the Fundamental Change Repurchase Notice repurchase right, Holders must comply surrender their Notes in accordance with appropriate applicable Depositary procedures. Notwithstanding anything herein to the contrary, any Holder delivering to the Paying Agent or Tender Agent, as the case may be, the Fundamental Change Repurchase Notice contemplated by this Section 15.02 shall have the right to withdraw, in whole or in part, such Fundamental Change Repurchase Notice at any time prior to the close of business on the Business Day immediately preceding the Fundamental Change Repurchase Date by delivery of a written notice of withdrawal to the Paying Agent or Tender Agent, as the case may be, in accordance with Section 15.03, or in accordance with the customary procedures of the Depository with respect to Global Notes. The Paying Agent or Tender Agent, as the case may be, shall promptly notify the Company of the receipt by it of any Fundamental Change Repurchase Notice or written notice of withdrawal thereof.
(c) On or before the 20th Business Day after the occurrence of the effective date of a Fundamental Change, the Company shall provide to all Holders of Notes and the Trustee, the Conversion Agent (in the case of a Conversion Agent other than the Trustee) and the Paying Agent (in the case of a Paying Agent other than the Trustee) a written notice (the “Fundamental Change Company Notice”) of the occurrence of the effective date of the Fundamental Change and of the repurchase right at the option of the Holders arising as a result thereof. In the case of Physical Notes, such notice shall be by first class mail or, in the case of Global Notes, such notice shall be delivered in accordance with the applicable procedures of the Depositary. Simultaneously with providing such notice, the Company shall publish a notice containing the information set forth in the Fundamental Change Company Notice on the Company’s website or through such other public medium as the Company may use at that time. Each Fundamental Change Company Notice shall specify:
(i) the events causing the Fundamental Change;
(ii) the effective date of the Fundamental Change;
(iii) the last date on which a Holder may exercise the repurchase right pursuant to this Article 15;
(iv) the Fundamental Change Repurchase Price;
(v) the Fundamental Change Repurchase Date;
(vi) the name and address of the Paying Agent or Tender Agent, as the case may be, and the Conversion Agent, if applicable;
(vii) if applicable, the Conversion Rate and any adjustments to the Conversion Rate as a result of the such Fundamental Change;
(viii) that the Notes with respect to which a Fundamental Change Repurchase Notice has been delivered by a Holder may be converted only if the Holder validly withdraws the Fundamental Change Repurchase Notice in accordance with the terms of this Indenture; and
(ix) the procedures that Holders must follow to require the Company to repurchase their Notes. No failure of the Company to give the foregoing notices and no defect therein shall limit the Holders’ repurchase rights or affect the validity of the proceedings for the repurchase of the Notes pursuant to this Section 15.02. At the Company’s request, given at least five days prior to the date the Fundamental Change Company Notice is to be sent (or such shorter period lesser amount of time as may be agreed to by the TrusteeTrustee in its reasonable discretion), the Trustee shall give such notice in the Company’s name and at the Company’s expense; provided, however, that, in all cases, the text of such Fundamental Change Company Notice shall be prepared by the Company. Simultaneously with providing such notice, the Company shall publish the information on its website or through such other public medium as it may use at that time.
(d) Notwithstanding the foregoing, no Notes may be repurchased by the Company on any date at the option of the Holders upon a Fundamental Change if the principal amount of the Notes has been accelerated, and such acceleration has not been rescinded, on or prior to such date (except in the case of an acceleration resulting from a Default by the Company in the payment of the Fundamental Change Repurchase Price with respect to such Notes). The Paying Agent or Tender Agent, as the case may be, will promptly return to the respective Holders thereof any Physical Notes held by it during the acceleration of the Notes (except in the case of an acceleration resulting from a Default by the Company in the payment of the Fundamental Change Repurchase Price with respect to such Notes), or any instructions for book-entry transfer of the Notes in compliance with the applicable procedures of the Depositary shall be deemed to have been cancelled, and, upon such return or cancellation, as the case may be, the Fundamental Change Repurchase Notice with respect thereto shall be deemed to have been withdrawn.
(e) Notwithstanding anything to the contrary in this Article 15, the Company shall not be required to repurchase, or to make an offer to repurchase, the Notes upon a Fundamental Change if a third party makes such an offer in the same manner, at the same time and otherwise in compliance with the requirements for an offer made by the Company as set forth in this Article 15 and such third party purchases all Notes properly surrendered and not validly withdrawn under its offer in the same manner, at the same time and otherwise in compliance with the requirements for an offer made by the Company as set forth above.
Appears in 3 contracts
Samples: Indenture (Pacific Biosciences of California, Inc.), Indenture (Pacific Biosciences of California, Inc.), Investment Agreement (Pacific Biosciences of California, Inc.)
Repurchase at Option of Holders Upon a Fundamental Change. (a) If a Fundamental Change occurs at any time prior to the Maturity Date, each Holder shall have the right, at such Holder’s option, to require the Company to repurchase for cash all of such Holder’s Notes, or any portion of the principal amount thereof that is equal to minimum denominations of $1,000 or an integral multiple of $1,000 in excess thereof1,000, on the date (the “Fundamental Change Repurchase Date”) specified by the Company that is not less than 20 calendar days or more than 35 calendar days following the date of the Fundamental Change Company Notice (or, if the Company fails to specify a Fundamental Change Repurchase Date, the 35th calendar day following the date of the Fundamental Change Company Notice) at a repurchase price equal to 100% of the principal amount thereof, plus accrued and unpaid interest thereon to, but excluding, the Fundamental Change Repurchase Date (the “Fundamental Change Repurchase Price”), unless the Fundamental Change Repurchase Date falls after a Regular Record Date but on or prior to the Interest Payment Date to which such Regular Record Date relates, in which case the Company shall instead pay the full amount of accrued and unpaid interest (to, but excluding, such Interest Payment Date) to Holders of record as of such Regular Record Date, and the Fundamental Change Repurchase Price shall be equal to 100% of the principal amount of Notes to be repurchased pursuant to this Article 15; provided that the Company shall not be required to repurchase, or to make an offer to repurchase, the Notes upon a Fundamental Change if a third party makes such an offer in the same manner, at the same time and otherwise in compliance with the requirements for an offer made by the Company as set forth in this Section 15.02 and such third party purchases all Notes properly surrendered and not validly withdrawn under its offer in the same manner, at the same time and otherwise in compliance with the requirements for an offer made by the Company as set forth in this Section 15.02XIV.
(b) Repurchases of Notes under this Section 15.02 14.01 shall be made, at the option of the Holder thereof, upon:
(i) delivery to the Paying Agent or tender agent appointed to facilitate the repurchase (the “Tender Agent”) by a Holder of a duly completed notice (the “Fundamental Change Repurchase Notice”) substantially in the form set forth in Attachment 2 to the Form of Note attached hereto as Exhibit A, if the Notes are Physical Notes, or in compliance with the Depositary’s procedures for surrendering interests in Global Notes, if the Notes are Global Notes, in each case on or before the close of business on the Business Day immediately preceding the Fundamental Change Repurchase Date; and
(ii) delivery of the Notes, if the Notes are Physical Notes, to the Paying Agent or Tender Agent, as the case may be, at any time after delivery of the Fundamental Change Repurchase Notice (together with all necessary endorsements for transfer) at the Corporate Trust Office of the Paying Agent or the principal office of the Tender Agent located in the United States of America as notified by the Tender Agent to Holders and the Trustee, as applicable, or book-entry transfer of the Notes, if the Notes are Global Notes, in compliance with the procedures of the Depositary, in each case such delivery being a condition to receipt by the Holder of the Fundamental Change Repurchase Price therefor. The Fundamental Change Repurchase Notice in respect of any Notes to be repurchased shall state:
(i) in the case of Physical Notes, the certificate numbers of the Notes to be delivered for repurchase;
(ii) the portion of the principal amount of Notes to be repurchased, which must be $1,000 or an integral multiple thereof; and
(iii) that the Notes are to be repurchased by the Company pursuant to the applicable provisions of the Notes and this Indenture; provided, however, that if the Notes are Global Notes, the Fundamental Change Repurchase Notice must comply with appropriate Depositary procedures. Notwithstanding anything herein to the contrary, any Holder delivering to the Paying Agent or Tender Agent, as the case may be, the Fundamental Change Repurchase Notice contemplated by this Section 15.02 shall have the right to withdraw, in whole or in part, such Fundamental Change Repurchase Notice at any time prior to the close of business on the Business Day immediately preceding the Fundamental Change Repurchase Date by delivery of a written notice of withdrawal to the Paying Agent or Tender Agent, as the case may be, in accordance with Section 15.03, or in accordance with the customary procedures of the Depository with respect to Global Notes. The Paying Agent or Tender Agent, as the case may be, shall promptly notify the Company of the receipt by it of any Fundamental Change Repurchase Notice or written notice of withdrawal thereof.
(c) On or before the 20th Business Day after the occurrence of the effective date of a Fundamental Change, the Company shall provide to all Holders of Notes and the Trustee, the Conversion Agent (in the case of a Conversion Agent other than the Trustee) and the Paying Agent (in the case of a Paying Agent other than the Trustee) a notice (the “Fundamental Change Company Notice”) of the occurrence of the effective date of the Fundamental Change and of the repurchase right at the option of the Holders arising as a result thereof. In the case of Physical Notes, such notice shall be by first class mail or, in the case of Global Notes, such notice shall be delivered in accordance with the applicable procedures of the Depositary. Simultaneously with providing such notice, the Company shall publish a notice containing the information set forth in the Fundamental Change Company Notice on the Company’s website or through such other public medium as the Company may use at that time. Each Fundamental Change Company Notice shall specify:
(i) the events causing the Fundamental Change;
(ii) the effective date of the Fundamental Change;
(iii) the last date on which a Holder may exercise the repurchase right pursuant to this Article 15;
(iv) the Fundamental Change Repurchase Price;
(v) the Fundamental Change Repurchase Date;
(vi) the name and address of the Paying Agent or Tender Agent, as the case may be, and the Conversion Agent, if applicable;
(vii) if applicable, the Conversion Rate and any adjustments to the Conversion Rate as a result of the Fundamental Change;
(viii) that the Notes with respect to which a Fundamental Change Repurchase Notice has been delivered by a Holder may be converted only if the Holder validly withdraws the Fundamental Change Repurchase Notice in accordance with the terms of this Indenture; and
(ix) the procedures that Holders must follow to require the Company to repurchase their Notes. No failure of the Company to give the foregoing notices and no defect therein shall limit the Holders’ repurchase rights or affect the validity of the proceedings for the repurchase of the Notes pursuant to this Section 15.02. At the Company’s request, given at least five days prior to the date the Fundamental Change Company Notice is to be sent (or such shorter period as may be agreed to by the Trustee), the Trustee shall give such notice in the Company’s name and at the Company’s expense; provided, however, that, in all cases, the text of such Fundamental Change Company Notice shall be prepared by the Company.
(d) Notwithstanding the foregoing, no Notes may be repurchased by the Company on any date at the option of the Holders upon a Fundamental Change if the principal amount of the Notes has been accelerated, and such acceleration has not been rescinded, on or prior to such date (except in the case of an acceleration resulting from a Default by the Company in the payment of the Fundamental Change Repurchase Price with respect to such Notes). The Paying Agent or Tender Agent, as the case may be, will promptly return to the respective Holders thereof any Physical Notes held by it during the acceleration of the Notes (except in the case of an acceleration resulting from a Default by the Company in the payment of the Fundamental Change Repurchase Price with respect to such Notes), or any instructions for book-entry transfer of the Notes in compliance with the procedures of the Depositary shall be deemed to have been cancelled, and, upon such return or cancellation, as the case may be, the Fundamental Change Repurchase Notice with respect thereto shall be deemed to have been withdrawn.
Appears in 3 contracts
Samples: Second Supplemental Indenture (Resource Capital Corp.), First Supplemental Indenture (Resource Capital Corp.), Indenture (Netsuite Inc)
Repurchase at Option of Holders Upon a Fundamental Change. (a) If a Fundamental Change occurs at any time prior to the Maturity Datetime, each Holder shall have the right, at such Holder’s option, to require the Company to repurchase for cash all of such Holder’s Notes, or any portion thereof that is equal to minimum denominations of $1,000 or an integral multiple of $1,000 in excess thereof1,000, on the date (the “Fundamental Change Repurchase Date”) specified by the Company that is not less than 20 calendar days or more than 35 calendar days following the date of the Fundamental Change Company Notice at a repurchase price equal to 100% of the principal amount thereof, plus accrued and unpaid interest thereon to, but excluding, the Fundamental Change Repurchase Date (the “Fundamental Change Repurchase Price”), unless the Fundamental Change Repurchase Date falls after a Regular Record Date but on or prior to the Interest Payment Date to which such Regular Record Date relates, in which case the Company shall instead pay the full amount of accrued and unpaid interest (to, but excluding, such Interest Payment Date) to Holders of record as of such Regular Record Date, and the Fundamental Change Repurchase Price shall be equal to 100% of the principal amount of Notes to be repurchased pursuant to this Article 15; provided that the Company shall not be required to repurchase, or to make an offer to repurchase, the Notes upon a Fundamental Change if a third party makes such an offer in the same manner, at the same time and otherwise in compliance with the requirements for an offer made by the Company as set forth in this Section 15.02 and such third party purchases all Notes properly surrendered and not validly withdrawn under its offer in the same manner, at the same time and otherwise in compliance with the requirements for an offer made by the Company as set forth in this Section 15.02.
(b) Repurchases of Notes under this Section 15.02 shall be made, at the option of the Holder thereof, upon:
(i) delivery to the Paying Agent or tender agent appointed to facilitate the repurchase (the “Tender Agent”) by a Holder of a duly completed notice (the “Fundamental Change Repurchase Notice”) in the form set forth in Attachment 2 to the Form of Note attached hereto as Exhibit A, if the Notes are Physical Notes, or in compliance with the Depositary’s procedures for surrendering interests in Global Notes, if the Notes are Global Notes, in each case on or before the close of business on the Business Day immediately preceding the Fundamental Change Repurchase Date; and
(ii) delivery of the Notes, if the Notes are Physical Notes, to the Paying Agent or Tender Agent, as the case may be, at any time after delivery of the Fundamental Change Repurchase Notice and on or before the close of business on the Business Day immediately preceding the Fundamental Change Repurchase Date (together with all necessary endorsements for transfer) at the Corporate Trust Office of the Paying Agent or the principal office of the Tender Agent located in the United States of America as notified by the Tender Agent to Holders and the Trustee, as applicableAgent, or book-entry transfer of the Notes, if the Notes are Global Notes, in compliance with the procedures of the Depositary, in each case such delivery being a condition to receipt by the Holder of the Fundamental Change Repurchase Price therefor. The Fundamental Change Repurchase Notice in respect of any Notes to be repurchased shall state:
(i) in the case of Physical Notes, the certificate numbers of the Notes to be delivered for repurchase;
(ii) the portion of the principal amount of Notes to be repurchased, which must be $1,000 or an integral multiple thereof; and
(iii) that the Notes are to be repurchased by the Company pursuant to the applicable provisions of the Notes and this Indenture; provided, however, that if the Notes are Global Notes, the Fundamental Change Repurchase Notice must comply with appropriate Depositary procedures. Notwithstanding anything herein to the contrary, any Holder delivering to the Paying Agent or Tender Agent, as the case may be, the Fundamental Change Repurchase Notice contemplated by this Section 15.02 shall have the right to withdraw, in whole or in part, such Fundamental Change Repurchase Notice at any time prior to the close of business on the Business Day immediately preceding the Fundamental Change Repurchase Date by delivery of a written notice of withdrawal to the Paying Agent or Tender Agent, as the case may be, in accordance with Section 15.03, or in accordance with the customary procedures of the Depository with respect to Global Notes. The Paying Agent or Tender Agent, as the case may be, shall promptly notify the Company of the receipt by it of any Fundamental Change Repurchase Notice or written notice of withdrawal thereof.
(c) On or before the 20th Business Day calendar day after the occurrence of the effective date of a Fundamental Change, the Company shall provide to all Holders of Notes and the Trustee, the Conversion Agent (in the case of a Conversion Agent other than the Trustee) Trustee and the Paying Agent (in the case of a Paying Agent other than the Trustee) a notice (the “Fundamental Change Company Notice”) of the occurrence of the effective date of the Fundamental Change and of the repurchase right at the option of the Holders arising as a result thereof. In the case of Physical Notes, such notice shall be by first class mail or, in the case of Global Notes, such notice shall be delivered in accordance with the applicable procedures of the Depositary. Simultaneously with providing such notice, the Company shall publish a notice containing the information set forth in the Fundamental Change Company Notice in a newspaper of general circulation in the City of New York or publish such information on the Company’s website or through such other public medium as the Company may use at that time. Each Fundamental Change Company Notice shall specify:
(i) the events causing the Fundamental Change;
(ii) the effective date of the Fundamental Change;
(iii) the last date on which a Holder may exercise the repurchase right pursuant to this Article 15;
(iv) the Fundamental Change Repurchase Price;
(v) the Fundamental Change Repurchase Date;
(vi) the name and address of the Paying Agent or Tender Agent, as the case may be, and the Conversion Agent, if applicable;
(vii) if applicable, the Conversion Rate and any adjustments to the Conversion Rate as a result of the Fundamental ChangeRate;
(viii) that the Notes with respect to which a Fundamental Change Repurchase Notice has been delivered by a Holder may be converted only if the Holder validly withdraws the Fundamental Change Repurchase Notice in accordance with the terms of this Indenture; and
(ix) the procedures that Holders must follow to require the Company to repurchase their Notes. No failure of the Company to give the foregoing notices and no defect therein shall limit the Holders’ repurchase rights or affect the validity of the proceedings for the repurchase of the Notes pursuant to this Section 15.02. At the Company’s request, given at least five days prior to the date the Fundamental Change Company Notice is to be sent (or such shorter period as may be agreed to by the Trustee), the Trustee shall give such notice in the Company’s name and at the Company’s expense; provided, however, that, in all cases, the text of such Fundamental Change Company Notice shall be prepared by the Company.
(d) Notwithstanding the foregoing, no Notes may be repurchased by the Company on any date at the option of the Holders upon a Fundamental Change if the principal amount of the Notes has been accelerated, and such acceleration has not been rescinded, on or prior to such date (except in the case of an acceleration resulting from a Default by the Company in the payment of the Fundamental Change Repurchase Price with respect to such Notes). The Paying Agent or Tender Agent, as the case may be, will promptly return to the respective Holders thereof any Physical Notes held by it during the acceleration of the Notes (except in the case of an acceleration resulting from a Default by the Company in the payment of the Fundamental Change Repurchase Price with respect to such Notes), or any instructions for book-entry transfer of the Notes in compliance with the procedures of the Depositary shall be deemed to have been cancelled, and, upon such return or cancellation, as the case may be, the Fundamental Change Repurchase Notice with respect thereto shall be deemed to have been withdrawn.
Appears in 3 contracts
Samples: Indenture (Zillow Group, Inc.), Indenture (Zillow Group, Inc.), Indenture (Zillow Group, Inc.)
Repurchase at Option of Holders Upon a Fundamental Change. (a) If a Fundamental Change occurs at any time prior to the Maturity Datetime, then each Holder Noteholder shall have the right, at such Holder’s option, to require the Company to repurchase for cash all of such Holder’s Notes, Notes or any portion thereof that is equal to minimum denominations of $1,000 or an integral a multiple of $1,000 in excess thereofprincipal amount, for cash on the date (the “Fundamental Change Repurchase Date”) specified by the Company that is not less than 20 calendar days or twenty (20) Business Days and not more than 35 calendar days following thirty-five (35) Business Days after the date of the Fundamental Change Company Notice (as defined below) at a repurchase price equal to 100% of the principal amount thereof, plus together with accrued and unpaid interest thereon to, but excluding, the Fundamental Change Repurchase Date (the “Fundamental Change Repurchase Price”), unless the Fundamental Change Repurchase Date falls after a Regular Record Date but on or prior to the Interest Payment Date to which such Regular Record Date relates, in which case the Company shall instead pay the full amount of accrued and unpaid interest (to, but excluding, such Interest Payment Date) to Holders of record as of such Regular Record Date, and the Fundamental Change Repurchase Price shall be equal to 100% of the principal amount of Notes to be repurchased pursuant to this Article 15; provided that the Company shall not be required to repurchase, or to make an offer to repurchase, the Notes upon a Fundamental Change if a third party makes such an offer in the same manner, at the same time and otherwise in compliance with the requirements for an offer made by the Company as set forth in this Section 15.02 and such third party purchases all Notes properly surrendered and not validly withdrawn under its offer in the same manner, at the same time and otherwise in compliance with the requirements for an offer made by the Company as set forth in this Section 15.02.
(b) . Repurchases of Notes under this Section 15.02 9.02 shall be made, at the option of the Holder thereof, upon:
(i) delivery to the Trustee (or other Paying Agent or tender agent appointed to facilitate by the repurchase (the “Tender Agent”Company) by a Holder of a duly completed notice (the “Fundamental Change Repurchase Notice”) in the form set forth in Attachment 2 on the reverse of the Note prior to the Form of Note attached hereto as Exhibit A, if the Notes are Physical Notes, or in compliance with the Depositary’s procedures for surrendering interests in Global Notes, if the Notes are Global Notes, in each case on or before the close of business on the Business Day immediately preceding the Fundamental Change Repurchase Date; and
(ii) delivery or book-entry transfer of the Notes, if the Notes are Physical Notes, to the Trustee (or other Paying Agent or Tender Agent, as appointed by the case may be, Company) at any time after delivery of the Fundamental Change Repurchase Notice (together with all necessary endorsements for transferendorsements) at the Corporate Trust Office of the Trustee (or other Paying Agent or appointed by the principal office of the Tender Agent located Company) in the United States Borough of America as notified by the Tender Agent to Holders and the TrusteeManhattan, as applicable, or book-entry transfer of the Notes, if the Notes are Global Notes, in compliance with the procedures of the Depositary, in each case such delivery being a condition to receipt by the Holder of the Fundamental Change Repurchase Price therefor; provided that such Fundamental Change Repurchase Price shall be so paid pursuant to this Section 9.02 only if the Note so delivered to the Trustee (or other Paying Agent appointed by the Company) shall conform in all respects to the description thereof in the related Fundamental Change Repurchase Notice. The Fundamental Change Repurchase Notice in respect of any Notes to be repurchased shall state:
(iA) in the case of Physical Notesif certificated, the certificate numbers of the Notes to be delivered for repurchase;
(iiB) the portion of the principal amount of Notes to be repurchased, which must be $1,000 or an integral multiple thereof; and
(iiiC) that the Notes are to be repurchased by the Company pursuant to the applicable provisions of the Notes and this First Supplemental Indenture; provided, however, that if . Any repurchase by the Notes are Global Notes, the Fundamental Change Repurchase Notice must comply with appropriate Depositary procedures. Notwithstanding anything herein Company contemplated pursuant to the contrary, any Holder delivering to the Paying Agent or Tender Agent, as the case may be, the Fundamental Change Repurchase Notice contemplated by provisions of this Section 15.02 9.02 shall have be consummated by the right delivery of the consideration to withdraw, in whole or in part, such Fundamental Change Repurchase Notice at any time prior to be received by the close Holder promptly following the later of business on the Business Day immediately preceding the Fundamental Change Repurchase Date by and the time of the book-entry transfer or delivery of a written notice of withdrawal to the Note. The Trustee (or other Paying Agent or Tender Agent, as appointed by the case may be, in accordance with Section 15.03, or in accordance with the customary procedures of the Depository with respect to Global Notes. The Paying Agent or Tender Agent, as the case may be, Company) shall promptly notify the Company of the receipt by it of any Fundamental Change Repurchase Notice or written notice of withdrawal thereofthereof in accordance with the provisions of Section 9.02(c). Any Note that is to be repurchased only in part shall be surrendered to the Trustee (with, if the Company or the Trustee so requires, due endorsement by, or a written instrument of transfer in form satisfactory to the Company and the Trustee duly executed by the Holder thereof or his attorney duly authorized in writing), and the Company shall execute, and the Trustee shall authenticate and make available for delivery to the Holder of such Note without service charge, a new Note or Notes, containing identical terms and conditions, each in an authorized denomination in aggregate principal amount equal to and in exchange for the unrepurchased portion of the principal of the Note so surrendered.
(cb) On or before the 20th Business Day twentieth day after the occurrence of the effective date of a any Fundamental Change, the Company shall provide to all Holders of record of the Notes and the Trustee, the Conversion Agent (in the case of a Conversion Agent other than the Trustee) Trustee and the Paying Agent (in the case of a Paying Agent other than the Trustee) a notice (the “Fundamental Change Company Notice”) of the occurrence of the effective date of the such Fundamental Change and of the repurchase right at the option of the Holders arising as a result thereof. In the case of Physical Notes, such notice Such mailing shall be by first class mail or, in the case of Global Notes, such notice shall be delivered in accordance with the applicable procedures of the Depositarymail. Simultaneously with providing such noticeFundamental Change Company Notice, the Company shall publish a notice containing the information set forth included therein once in the Fundamental Change Company Notice a newspaper of general circulation in The City of New York or publish such information on the Company’s website or through such other public medium as the Company may use at that such time. Each Fundamental Change Company Notice shall specify:
(i) the events causing the Fundamental Change;
(ii) the effective date of the Fundamental Change;
(iii) that the last date on which a Holder may must exercise the repurchase right pursuant on or prior to this Article 15the close of business on the Fundamental Change Repurchase Date;
(iv) the Fundamental Change Repurchase Price;
(v) the Fundamental Change Repurchase Date;
(vi) the name and address of the Paying Agent or Tender Agent, as the case may be, and the Conversion Exchange Agent, if applicable;
(vii) if applicable, the Conversion applicable Exchange Rate and any adjustments to the Conversion Rate as a result of the Fundamental Changeapplicable Exchange Rate;
(viii) that the Notes with respect to which a Fundamental Change Repurchase Notice has been delivered by a Holder may be converted exchanged only if the Holder validly withdraws the Fundamental Change Repurchase Notice in accordance with the terms of this First Supplemental Indenture; and
(ix) the procedures that Holders must follow to require the Company to repurchase their Notes. No failure of the Company to give the foregoing notices and no defect therein shall limit the HoldersNoteholders’ repurchase rights or affect the validity of the proceedings for the repurchase of the Notes pursuant to this Section 15.02. At the Company’s request, given at least five days prior 9.02.
(c) A Fundamental Change Repurchase Notice may be withdrawn by means of a written notice of withdrawal delivered to the date Trustee and Paying Agent in accordance with the Fundamental Change Company Notice is at any time prior to be sent (or such shorter period as may be agreed the close of business on the Business Day prior to by the Trustee), the Trustee shall give such notice in the Company’s name and at the Company’s expense; provided, however, that, in all cases, the text of such Fundamental Change Company Notice shall be prepared by the Company.Repurchase Date, specifying:
(di) Notwithstanding the foregoing, no Notes may be repurchased by the Company on any date at the option of the Holders upon a Fundamental Change if the principal amount of the Notes has with respect to which such notice of withdrawal is being submitted;
(ii) if certificated Notes have been acceleratedissued, and the certificate numbers of the withdrawn Notes; and
(iii) the principal amount, if any, of such acceleration has Notes that remains subject to the original Fundamental Change Repurchase Notice, which portion must be in principal amounts of $1,000 or an integral multiple of $1,000; provided, however, that if the Notes are not been rescindedin certificated form, on the notice must comply with appropriate procedures of the Depositary.
(d) On or prior to such date 11:00 a.m. (except local time in The City of New York) on the case of an acceleration resulting from a Default second Business Day following the Fundamental Change Repurchase Date, the Company will deposit with the Trustee (or other Paying Agent appointed by the Company or if the Company is acting as its own Paying Agent, set aside, segregate and hold in trust in accordance with the Base Indenture as modified by this First Supplemental Indenture) an amount of money sufficient to repurchase on the Fundamental Change Repurchase Date all of the Notes to be repurchased on such date at the Fundamental Change Repurchase Price. Subject to receipt of funds and/or Notes by the Trustee (or other Paying Agent appointed by the Company), payment for Notes surrendered for repurchase (and not withdrawn) prior to the close of business on the Fundamental Change Repurchase Date will be made promptly after the later of (x) the Fundamental Change Repurchase Date with respect to such Note (provided the Holder has satisfied the conditions to the payment of the Fundamental Change Repurchase Price with respect in Section 9.02), and (y) the time of book-entry transfer or the delivery of such Note to the Trustee (or other Paying Agent appointed by the Company) by the Holder thereof in the manner required by Section 9.02 by mailing checks for the amount payable to the Holders of such Notes)Notes entitled thereto as they shall appear in the Security Register, provided, however, that payments to the Depositary shall be made by wire transfer of immediately available funds to the account of the Depositary or its nominee. The Paying Agent or Tender AgentTrustee shall, as promptly after such payment and upon written demand by the case may beCompany, will promptly return to the respective Holders thereof Company any Physical Notes held by it during the acceleration of the Notes (except funds in the case of an acceleration resulting from a Default by the Company in the payment excess of the Fundamental Change Repurchase Price with respect Price.
(e) If the Trustee (or other Paying Agent appointed by the Company) holds money or securities sufficient to repurchase on the Fundamental Change Repurchase Date all the Notes or portions thereof that are to be purchased as of the second Business Day following the Fundamental Change Repurchase Date, then on and after the Fundamental Change Repurchase Date (i) such Notes will cease to be Outstanding, (ii) interest will cease to accrue on such Notes), and (iii) all other rights of the Holders of such Notes will terminate, whether or any instructions for not book-entry transfer of the Notes in compliance with has been made or the procedures of the Depositary shall be deemed to Notes have been cancelleddelivered to the Trustee or Paying Agent, and, upon such return or cancellation, as other than the case may be, right to receive the Fundamental Change Repurchase Notice with respect thereto shall be deemed to have been withdrawnPrice upon delivery of the Notes.
Appears in 2 contracts
Samples: First Supplemental Indenture (Prologis, L.P.), First Supplemental Indenture (Amb Property Lp)
Repurchase at Option of Holders Upon a Fundamental Change. (a) If a Fundamental Change occurs at any time prior to the Maturity Datetime, each Holder shall have the right, at such Holder’s option, to require the Company to repurchase for cash all of such Holder’s Notes, or any portion thereof that is equal to minimum denominations of $1,000 1.00 or an integral multiple of $1,000 in excess thereof1.00, on the date (the “Fundamental Change Repurchase Date”) specified by the Company that is not less than 20 calendar days or more than 35 calendar days following the date of the Fundamental Change Company Notice at a repurchase price equal to 100% of the principal amount thereof, plus accrued and unpaid interest thereon to, but excluding, the Fundamental Change Repurchase Date (the “Fundamental Change Repurchase Price”), unless the Fundamental Change Repurchase Date falls after a Regular Record Date but on or prior to the Interest Payment Date to which such Regular Record Date relates, in which case the Company shall instead pay the full amount of accrued and unpaid interest (to, but excluding, such Interest Payment Date) to Holders of record as of such Regular Record Date, and the Fundamental Change Repurchase Price shall be equal to 100% of the principal amount of Notes to be repurchased pursuant to this Article 15; provided that the Company shall not be required to repurchase, or to make an offer to repurchase, the Notes upon a Fundamental Change if a third party makes such an offer in the same manner, at the same time and otherwise in compliance with the requirements for an offer made by the Company as set forth in this Section 15.02 and such third party purchases all Notes properly surrendered and not validly withdrawn under its offer in the same manner, at the same time and otherwise in compliance with the requirements for an offer made by the Company as set forth in this Section 15.02.
(b) Repurchases of Notes under this Section 15.02 shall be made, at the option of the Holder thereof, upon:
(i) delivery to the Paying Agent or tender agent appointed by the Company to facilitate the repurchase (the “Tender Agent”) by a Holder of a duly completed notice (the “Fundamental Change Repurchase Notice”) in the form set forth in Attachment 2 to the Form of Note attached hereto as Exhibit A, if the Notes are Physical Notes, or in compliance with the Depositary’s procedures for surrendering interests in Global Notes, if the Notes are Global Notes, in each case on or before the close of business on the Business Day immediately preceding the Fundamental Change Repurchase Date; and
(ii) delivery of the Notes, if the Notes are Physical Notes, to the Paying Agent or Tender Agent, as the case may be, Agent at any time after delivery of the Fundamental Change Repurchase Notice (together with all necessary endorsements for transfer) at the Corporate Trust Office of the Paying Agent or the principal office of the Tender Agent located in the contiguous United States of America as notified by the Tender Agent to Holders and the Trustee, as applicablethe case may be, or book-entry transfer of the Notes, if the Notes are Global Notes, in compliance with the procedures of the Depositary, in each case such delivery being a condition to receipt by the Holder of the Fundamental Change Repurchase Price therefor. The Fundamental Change Repurchase Notice in respect of any Notes to be repurchased shall state:
(i) in the case of Physical Notes, the certificate numbers of the Notes to be delivered for repurchase;
(ii) the portion of the principal amount of Notes to be repurchased, which must be $1,000 1.00 or an integral multiple thereof; and
(iii) that the Notes are to be repurchased by the Company pursuant to the applicable provisions of the Notes and this Indenture; provided, however, that if the Notes are Global Notes, the Fundamental Change Repurchase Notice must comply with appropriate Depositary procedures. Notwithstanding anything herein to the contrary, any Holder delivering to the Paying Agent or Tender Agent, as the case may be, the Fundamental Change Repurchase Notice contemplated by this Section 15.02 shall have the right to withdraw, in whole or in part, such Fundamental Change Repurchase Notice at any time prior to the close of business on the Business Day immediately preceding the Fundamental Change Repurchase Date by delivery of a written notice of withdrawal to the Paying Agent or Tender Agent, as the case may be, in accordance with Section 15.03, or in accordance with the customary procedures of the Depository with respect to Global Notes. The Paying Agent or Tender Agent, as the case may be, shall promptly notify the Company of the receipt by it of any Fundamental Change Repurchase Notice or written notice of withdrawal thereof.
(c) On or before the 20th fifth (5th) Business Day after the occurrence of the effective date of a Fundamental Change, the Company shall provide to all Holders of Notes and the Trustee, the Conversion Agent (in the case of a Conversion Agent other than the Trustee) and the Paying Agent (in the case of a Paying Agent other than the Trustee) a notice (the “Fundamental Change Company Notice”) of the occurrence of the effective date of the Fundamental Change and of the repurchase right at the option of the Holders arising as a result thereof. In the case of Physical Notes, such notice shall be by first class mail or, in the case of Global Notes, such notice shall be delivered in accordance with the applicable procedures of the Depositary. Simultaneously with providing such notice, the Company shall publish a notice containing the information set forth in the Fundamental Change Company Notice in a newspaper of general circulation in The City of New York or publish such information on the Company’s website or through such other public medium as the Company may use at that time. Each Fundamental Change Company Notice shall specify:
(i) the events causing the Fundamental ChangeChange and whether such Fundamental Change is a Make-Whole Adjustment Event;
(ii) the effective date of the Fundamental Change;
(iii) the last date on which a Holder may exercise the repurchase right pursuant to this Article 15;
(iv) the Fundamental Change Repurchase Price;
(v) the Fundamental Change Repurchase Date;
(vi) the name and address of the Paying Agent or Tender Agent, as the case may be, and the Conversion Agent, if applicable;
(vii) if applicable, the Applicable Conversion Rate and any adjustments to the Applicable Conversion Rate as a result of the Fundamental ChangeRate;
(viii) that the Notes with respect to which a Fundamental Change Repurchase Notice has been delivered by a Holder may be converted only if the Holder validly withdraws the Fundamental Change Repurchase Notice in accordance with the terms of this Indenture; and
(ix) the procedures that Holders must follow to require the Company to repurchase their Notes. No failure of the Company to give the foregoing notices and no defect therein shall limit the Holders’ repurchase rights or affect the validity of the proceedings for the repurchase of the Notes pursuant to this Section 15.02. At the Company’s request, given delivered at least five days two Business Days prior to the date the Fundamental Change Company Notice is to be sent (or such shorter period as may be agreed to by the Trustee)sent, the Trustee shall give such notice in the Company’s name and at the Company’s expense; provided, however, that, in all cases, the text of such Fundamental Change Company Notice shall be prepared by the Company.
(d) Notwithstanding the foregoing, no Notes may be repurchased by the Company on any date at the option of the Holders upon a Fundamental Change if the principal amount of the Notes has been accelerated, and such acceleration has not been rescinded, on or prior to such date (except in the case of an acceleration resulting from a Default by the Company in the payment of the Fundamental Change Repurchase Price with respect to such Notes). The Paying Agent or Tender Agent, as the case may be, will promptly return to the respective Holders thereof any Physical Notes held by it during the acceleration of the Notes (except in the case of an acceleration resulting from a Default by the Company in the payment of the Fundamental Change Repurchase Price with respect to such Notes), or any instructions for book-entry transfer of the Notes in compliance with the procedures of the Depositary shall be deemed to have been cancelled, and, upon such return or cancellation, as the case may be, the Fundamental Change Repurchase Notice with respect thereto shall be deemed to have been withdrawn.
Appears in 2 contracts
Samples: Indenture (Endologix Inc /De/), Indenture (Endologix Inc /De/)
Repurchase at Option of Holders Upon a Fundamental Change. (a) If Subject to Section 15.02(f), if a Fundamental Change occurs at any time prior to the Maturity Date, each Holder shall have the right, at such Holder’s option, to require the Company to repurchase for cash all of such Holder’s Notes, or any portion of the principal amount thereof properly surrendered and not validly withdrawn pursuant to Section 15.03 that is equal to minimum denominations of $1,000 or an integral multiple of $1,000 in excess thereof1,000, on the date (the “Fundamental Change Repurchase Date”) specified by the Company that is not less than 20 calendar days Business Days or more than 35 calendar days Business Days following the date of the Fundamental Change Company Notice at a repurchase price equal to 100% of the principal amount thereof, plus accrued and unpaid interest interest, if any, thereon to, but excluding, the Fundamental Change Repurchase Date (the “Fundamental Change Repurchase Price”), unless the Fundamental Change Repurchase Date falls after a Regular Special Interest Record Date but on or prior to the Special Interest Payment Date to which such Regular Special Interest Record Date relates, in which case the Company shall instead pay the full amount of accrued and unpaid interest (to, but excluding, such Interest Payment Date) to Holders of record as of the close of business on such Regular Special Interest Record Date on, or at the Company’s election, before such Special Interest Payment Date, and the Fundamental Change Repurchase Price shall be equal to 100% of the principal amount of Notes to be repurchased pursuant to this Article 15; provided that the Company shall not be required to repurchase, or to make an offer to repurchase, the Notes upon a Fundamental Change if a third party makes such an offer in the same manner, at the same time and otherwise in compliance with the requirements for an offer made by the Company as set forth in this Section 15.02 and such third party purchases all Notes properly surrendered and not validly withdrawn under its offer in the same manner, at the same time and otherwise in compliance with the requirements for an offer made by the Company as set forth in this Section 15.02.
(b) Repurchases of Notes under this Section 15.02 shall be made, at the option of the Holder thereof, upon:
(i) delivery to the Paying Agent or tender agent appointed to facilitate the repurchase (the “Tender Agent”) by a Holder of a duly completed notice (the “Fundamental Change Repurchase Notice”) in the form set forth in Attachment 2 to the Form of Note attached hereto as Exhibit A, if the Notes are Physical Notes, or in compliance with the Depositary’s applicable procedures for surrendering interests in Global Notes, if the Notes are Global Notes, in each case case, on or before the close of business on the Business Day immediately preceding the Fundamental Change Repurchase Date; and
(ii) delivery of the Notes, if the Notes are Physical Notes, to the Paying Agent or Tender Agent, as the case may be, at any time after delivery of the Fundamental Change Repurchase Notice (together with all necessary endorsements for transfer) at the Corporate Trust Office of the Paying Agent or the principal office of the Tender Agent located in the United States of America as notified by the Tender Agent to Holders and the Trustee, as applicableAgent, or book-entry transfer of the Notes, if the Notes are Global Notes, in compliance with the applicable procedures of the Depositary, in each case case, such delivery or transfer being a condition to receipt by the Holder of the Fundamental Change Repurchase Price therefor. The Fundamental Change Repurchase Notice in respect of any Physical Notes to be repurchased shall state:
(i) in the case of Physical Notes, the certificate numbers of the Notes to be delivered for repurchase;
(ii) the portion of the principal amount of Notes to be repurchased, which must be $1,000 or an integral multiple thereof; and
(iii) that the Notes are to be repurchased by the Company pursuant to the applicable provisions of the Notes and this Indenture; provided, however, that if . If the Notes are Global Notes, to exercise the Fundamental Change Repurchase Notice repurchase right, Holders must comply surrender their Notes in accordance with appropriate applicable Depositary procedures. Notwithstanding anything herein to the contrary, any Holder delivering to the Paying Agent or Tender Agent, as the case may be, the Fundamental Change Repurchase Notice contemplated by this Section 15.02 shall have the right to withdraw, in whole or in part, such Fundamental Change Repurchase Notice at any time prior to the close of business on the Business Day immediately preceding the Fundamental Change Repurchase Date by delivery of a written notice of withdrawal to the Paying Agent or Tender Agent, as the case may be, in accordance with Section 15.03, or in accordance with the customary procedures of the Depository with respect to Global Notes. The Paying Agent or Tender Agent, as the case may be, shall promptly notify the Company of the receipt by it of any Fundamental Change Repurchase Notice or written notice of withdrawal thereof.
(c) On or before the 20th Business Day after the occurrence of the effective date of a Fundamental Change, the Company shall provide to all Holders of Notes and the Trustee, the Conversion Agent (in the case of a Conversion Agent other than the Trustee) Trustee and the Paying Agent (in the case of a Paying Agent other than the Trustee) a notice (the “Fundamental Change Company Notice”) of the occurrence of the effective date of the Fundamental Change and of the resulting repurchase right at the option of the Holders arising as a result thereof. In the case of Physical Notes, such notice shall be by first class mail or, in the case of Global Notes, such notice shall be delivered in accordance with the applicable procedures of the Depositary. Simultaneously with providing such notice, the Company shall publish a notice containing the such information set forth in the Fundamental Change Company Notice on the Company’s website or through such other public medium as the Company may use at that time. Each Fundamental Change Company Notice shall specify:
(i) the events causing the Fundamental Change;
(ii) the effective date of the Fundamental Change;
(iii) the last date on which a Holder may exercise the repurchase right pursuant to this Article 15;
(iv) the Fundamental Change Repurchase Price;
(v) the Fundamental Change Repurchase Date;
(vi) the name and address of the Paying Agent or Tender Agent, as the case may be, and the Conversion Agent, if applicable;
(vii) if applicable, the Conversion Rate and any adjustments to the Conversion Rate as a result of the Fundamental Change (or related Make-Whole Fundamental Change);
(viii) that the Notes with respect to which a Fundamental Change Repurchase Notice has been delivered by a Holder may be converted only if the Holder validly withdraws the Fundamental Change Repurchase Notice in accordance with the terms of this Indenture; and
(ix) the procedures that Holders must follow to require the Company to repurchase their Notes. No failure of the Company to give the foregoing notices and no defect therein shall limit the Holders’ repurchase rights or affect the validity of the proceedings for the repurchase of the Notes pursuant to this Section 15.02. At the Company’s written request, given at least five days prior to the date the Fundamental Change Company Notice two (2) Business Days before such notice is to be sent (or such shorter period as may shall be agreed acceptable to by the Trustee), the Trustee shall give such notice in the Company’s name and at the Company’s expense; provided, however, that, in all cases, the text of such Fundamental Change Company Notice shall be prepared by the Company.
(d) Notwithstanding anything to the contrary in this Article 15, the Company shall not be required to repurchase, or to make an offer to repurchase, the Notes upon a Fundamental Change if a third party makes such an offer in the same manner, at the same time and otherwise in compliance with the requirements for an offer made by the Company as set forth in this Article 15 and such third party purchases all Notes properly surrendered and not validly withdrawn under its offer in the same manner, at the same time and otherwise in compliance with the requirements for an offer made by the Company as set forth above.
(e) Notwithstanding the foregoing, no Notes may be repurchased by the Company on any date at the option of the Holders upon a Fundamental Change if the principal amount of the Notes has been accelerated, and such acceleration has not been rescinded, on or prior to such date (except in the case of an acceleration resulting from a Default by the Company in the payment of the Fundamental Change Repurchase Price with respect to such Notes). The Paying Agent or Tender Agent, as the case may be, will promptly return to the respective Holders thereof any Physical Notes held by it during the acceleration of the Notes (except in the case of an acceleration resulting from a Default by the Company in the payment of the Fundamental Change Repurchase Price with respect to such Notes), or any instructions for book-entry transfer of the Notes in compliance with the applicable procedures of the Depositary shall be deemed to have been cancelled, and, upon such return or cancellation, as the case may be, the Fundamental Change Repurchase Notice with respect thereto shall be deemed to have been withdrawn.
(f) Notwithstanding anything to the contrary in this Section 15.02, the Company shall not be required to send a Fundamental Change Company Notice, or offer to repurchase or repurchase any Notes, as set forth in this Article 15, in connection with a Fundamental Change occurring pursuant to clause (b)(A) or (B) of the definition thereof, if: (i) such Fundamental Change constitutes a Share Exchange Event whose Reference Property consists entirely of cash in U.S. dollars; (ii) immediately after such Fundamental Change, the Notes become convertible (pursuant to Section 14.07 and, if applicable, Section 14.03) into consideration that consists solely of U.S. dollars in an amount per $1,000 principal amount of Notes that equals or exceeds the Fundamental Change Repurchase Price per $1,000 principal amount of Notes (calculated assuming that the same includes the maximum amount of any accrued but unpaid interest payable as part of the Fundamental Change Repurchase Price for such Fundamental Change); and (iii) the Company timely sends the notice relating to such Fundamental Change required pursuant to Section 14.01(b)(iii). Any Fundamental Change with respect to which, in accordance with the provisions described in this Section 15.02(f), the Company does not offer to repurchase any Notes is referred to herein as an “Exempted Fundamental Change.”
Appears in 2 contracts
Samples: Indenture (Snowflake Inc.), Indenture (Snowflake Inc.)
Repurchase at Option of Holders Upon a Fundamental Change. (a) If a Fundamental Change occurs at any time prior to the Maturity Datetime, then each Holder Noteholder shall have the right, at such Holder’s option, to require the Company to repurchase for cash all of such Holder’s Notes, Notes or any portion thereof that is equal to minimum denominations of $1,000 or an integral a multiple of $1,000 in excess thereofprincipal amount, for cash on the date (the “Fundamental Change Repurchase Date”) specified by the Company that is not less than 20 calendar days or twenty (20) Business Days and not more than 35 calendar days following thirty-five (35) Business Days after the date of the Fundamental Change Company Notice (as defined below) at a repurchase price equal to 100% of the principal amount thereof, plus together with accrued and unpaid interest thereon to, but excluding, the Fundamental Change Repurchase Date (the “Fundamental Change Repurchase Price”), unless the Fundamental Change Repurchase Date falls after a Regular Record Date but on or prior to the Interest Payment Date to which such Regular Record Date relates, in which case the Company shall instead pay the full amount of accrued and unpaid interest (to, but excluding, such Interest Payment Date) to Holders of record as of such Regular Record Date, and the Fundamental Change Repurchase Price shall be equal to 100% of the principal amount of Notes to be repurchased pursuant to this Article 15; provided that the Company shall not be required to repurchase, or to make an offer to repurchase, the Notes upon a Fundamental Change if a third party makes such an offer in the same manner, at the same time and otherwise in compliance with the requirements for an offer made by the Company as set forth in this Section 15.02 and such third party purchases all Notes properly surrendered and not validly withdrawn under its offer in the same manner, at the same time and otherwise in compliance with the requirements for an offer made by the Company as set forth in this Section 15.02.
(b) . Repurchases of Notes under this Section 15.02 9.02 shall be made, at the option of the Holder thereof, upon:
(i) delivery to the Trustee (or other Paying Agent or tender agent appointed to facilitate by the repurchase (the “Tender Agent”Company) by a Holder of a duly completed notice (the “Fundamental Change Repurchase Notice”) in the form set forth in Attachment 2 on the reverse of the Note prior to the Form of Note attached hereto as Exhibit A, if the Notes are Physical Notes, or in compliance with the Depositary’s procedures for surrendering interests in Global Notes, if the Notes are Global Notes, in each case on or before the close of business on the Business Day immediately preceding the Fundamental Change Repurchase Date; and
(ii) delivery or book-entry transfer of the Notes, if the Notes are Physical Notes, to the Trustee (or other Paying Agent or Tender Agent, as appointed by the case may be, Company) at any time after delivery of the Fundamental Change Repurchase Notice (together with all necessary endorsements for transferendorsements) at the Corporate Trust Office of the Trustee (or other Paying Agent appointed by the Company) in the Borough of Manhattan or the principal office City of the Tender Agent located in the United States of America as notified by the Tender Agent to Holders and the TrusteeBoston, as applicable, or book-entry transfer of the Notes, if the Notes are Global Notes, in compliance with the procedures of the Depositary, in each case such delivery being a condition to receipt by the Holder of the Fundamental Change Repurchase Price therefor; provided that such Fundamental Change Repurchase Price shall be so paid pursuant to this Section 9.02 only if the Note so delivered to the Trustee (or other Paying Agent appointed by the Company) shall conform in all respects to the description thereof in the related Fundamental Change Repurchase Notice. The Fundamental Change Repurchase Notice in respect of any Notes to be repurchased shall state:
(iA) in the case of Physical Notesif certificated, the certificate numbers of the Notes to be delivered for repurchase;
(iiB) the portion of the principal amount of Notes to be repurchased, which must be $1,000 or an integral multiple thereof; and
(iiiC) that the Notes are to be repurchased by the Company pursuant to the applicable provisions of the Notes and this Annex B of the Twelfth Supplemental Indenture; provided, however, that if . Any repurchase by the Notes are Global Notes, the Fundamental Change Repurchase Notice must comply with appropriate Depositary procedures. Notwithstanding anything herein Company contemplated pursuant to the contrary, any Holder delivering to the Paying Agent or Tender Agent, as the case may be, the Fundamental Change Repurchase Notice contemplated by provisions of this Section 15.02 9.02 shall have be consummated by the right delivery of the consideration to withdraw, in whole or in part, such Fundamental Change Repurchase Notice at any time prior to be received by the close Holder promptly following the later of business on the Business Day immediately preceding the Fundamental Change Repurchase Date by and the time of the book-entry transfer or delivery of a written notice of withdrawal to the Note. The Trustee (or other Paying Agent or Tender Agent, as appointed by the case may be, in accordance with Section 15.03, or in accordance with the customary procedures of the Depository with respect to Global Notes. The Paying Agent or Tender Agent, as the case may be, Company) shall promptly notify the Company of the receipt by it of any Fundamental Change Repurchase Notice or written notice of withdrawal thereofthereof in accordance with the provisions of Section 9.02(c). Any Note that is to be repurchased only in part shall be surrendered to the Trustee (with, if the Company or the Trustee so requires, due endorsement by, or a written instrument of transfer in form satisfactory to the Company and the Trustee duly executed by the Holder thereof or his attorney duly authorized in writing), and the Company shall execute, and the Trustee shall authenticate and make available for delivery to the Holder of such Note without service charge, a new Note or Notes, containing identical terms and conditions, each in an authorized denomination in aggregate principal amount equal to and in exchange for the unrepurchased portion of the principal of the Note so surrendered.
(cb) On or before the 20th Business Day twentieth day after the occurrence of the effective date of a any Fundamental Change, the Company shall provide to all Holders of record of the Notes and the Trustee, the Conversion Agent (in the case of a Conversion Agent other than the Trustee) Trustee and the Paying Agent (in the case of a Paying Agent other than the Trustee) a notice (the “Fundamental Change Company Notice”) of the occurrence of the effective date of the such Fundamental Change and of the repurchase right at the option of the Holders arising as a result thereof. In the case of Physical Notes, such notice Such mailing shall be by first class mail or, in the case of Global Notes, such notice shall be delivered in accordance with the applicable procedures of the Depositarymail. Simultaneously with providing such noticeFundamental Change Company Notice, the Company shall publish a notice containing the information set forth included therein once in the Fundamental Change Company Notice a newspaper of general circulation in The City of New York or publish such information on the Company’s website or through such other public medium as the Company may use at that such time. Each Fundamental Change Company Notice shall specify:
(i) the events causing the Fundamental Change;
(ii) the effective date of the Fundamental Change;
(iii) that the last date on which a Holder may must exercise the repurchase right pursuant on or prior to this Article 15the close of business on the Fundamental Change Repurchase Date;
(iv) the Fundamental Change Repurchase Price;
(v) the Fundamental Change Repurchase Date;
(vi) the name and address of the Paying Agent or Tender Agent, as the case may be, and the Conversion Exchange Agent, if applicable;
(vii) if applicable, the Conversion applicable Exchange Rate and any adjustments to the Conversion Rate as a result of the Fundamental Changeapplicable Exchange Rate;
(viii) that the Notes with respect to which a Fundamental Change Repurchase Notice has been delivered by a Holder may be converted exchanged only if the Holder validly withdraws the Fundamental Change Repurchase Notice in accordance with the terms of this Annex B of the Twelfth Supplemental Indenture; and
(ix) the procedures that Holders must follow to require the Company to repurchase their Notes. No failure of the Company to give the foregoing notices and no defect therein shall limit the HoldersNoteholders’ repurchase rights or affect the validity of the proceedings for the repurchase of the Notes pursuant to this Section 15.02. At the Company’s request, given at least five days prior 9.02.
(c) A Fundamental Change Repurchase Notice may be withdrawn by means of a written notice of withdrawal delivered to the date Trustee and Paying Agent in accordance with the Fundamental Change Company Notice is at any time prior to be sent (or such shorter period as may be agreed the close of business on the Business Day prior to by the Trustee), the Trustee shall give such notice in the Company’s name and at the Company’s expense; provided, however, that, in all cases, the text of such Fundamental Change Company Notice shall be prepared by the Company.Repurchase Date, specifying:
(di) Notwithstanding the foregoing, no Notes may be repurchased by the Company on any date at the option of the Holders upon a Fundamental Change if the principal amount of the Notes has with respect to which such notice of withdrawal is being submitted;
(ii) if certificated Notes have been acceleratedissued, and the certificate numbers of the withdrawn Notes; and
(iii) the principal amount, if any, of such acceleration has Notes that remains subject to the original Fundamental Change Repurchase Notice, which portion must be in principal amounts of $1,000 or an integral multiple of $1,000; provided, however, that if the Notes are not been rescindedin certificated form, on the notice must comply with appropriate procedures of the Depositary.
(d) On or prior to such date 11:00 a.m. (except local time in The City of New York) on the case of an acceleration resulting from a Default second Business Day following the Fundamental Change Repurchase Date, the Company will deposit with the Trustee (or other Paying Agent appointed by the Company or if the Company is acting as its own Paying Agent, set aside, segregate and hold in trust in accordance with the Base Indenture as modified by this Annex B of the Twelfth Supplemental Indenture) an amount of money sufficient to repurchase on the Fundamental Change Repurchase Date all of the Notes to be repurchased on such date at the Fundamental Change Repurchase Price. Subject to receipt of funds and/or Notes by the Trustee (or other Paying Agent appointed by the Company), payment for Notes surrendered for repurchase (and not withdrawn) prior to the close of business on the Fundamental Change Repurchase Date will be made promptly after the later of (x) the Fundamental Change Repurchase Date with respect to such Note (provided the Holder has satisfied the conditions to the payment of the Fundamental Change Repurchase Price with respect in Section 9.02), and (y) the time of book-entry transfer or the delivery of such Note to the Trustee (or other Paying Agent appointed by the Company) by the Holder thereof in the manner required by Section 9.02 by mailing checks for the amount payable to the Holders of such Notes)Notes entitled thereto as they shall appear in the Security Register, provided, however, that payments to the Depositary shall be made by wire transfer of immediately available funds to the account of the Depositary or its nominee. The Paying Agent or Tender AgentTrustee shall, as promptly after such payment and upon written demand by the case may beCompany, will promptly return to the respective Holders thereof Company any Physical Notes held by it during the acceleration of the Notes (except funds in the case of an acceleration resulting from a Default by the Company in the payment excess of the Fundamental Change Repurchase Price with respect Price.
(e) If the Trustee (or other Paying Agent appointed by the Company) holds money or securities sufficient to repurchase on the Fundamental Change Repurchase Date all the Notes or portions thereof that are to be purchased as of the second Business Day following the Fundamental Change Repurchase Date, then on and after the Fundamental Change Repurchase Date (i) such Notes will cease to be Outstanding, (ii) interest will cease to accrue on such Notes), and (iii) all other rights of the Holders of such Notes will terminate, whether or any instructions for not book-entry transfer of the Notes in compliance with has been made or the procedures of the Depositary shall be deemed to Notes have been cancelleddelivered to the Trustee or Paying Agent, and, upon such return or cancellation, as other than the case may be, right to receive the Fundamental Change Repurchase Notice with respect thereto shall be deemed to have been withdrawnPrice upon delivery of the Notes.
Appears in 2 contracts
Samples: Supplemental Indenture (Prologis), Supplemental Indenture (Amb Property Lp)
Repurchase at Option of Holders Upon a Fundamental Change. (a) If a Fundamental Change occurs at any time prior to the Maturity Date, each Holder shall have the right, at such Holder’s option, to require the Company to repurchase for cash all of such Holder’s Notes, or any portion of the principal amount thereof properly surrendered and not validly withdrawn pursuant to Section 15.03 that is equal to minimum denominations of $1,000 or an integral a multiple of $1,000 in excess thereof1,000, on the date (the “Fundamental Change Repurchase Date”) specified by the Company that is not less than 20 calendar days or more than 35 calendar days Business Days following the date of the Fundamental Change Company Notice at a repurchase price equal to 100% of the principal amount thereof, plus accrued and unpaid interest thereon to, but excluding, the Fundamental Change Repurchase Date (the “Fundamental Change Repurchase Price”), unless the Fundamental Change Repurchase Date falls after a Regular Record Date but on or prior to the Interest Payment Date to which such Regular Record Date relates, in which case the Company shall instead pay the full amount of accrued and unpaid interest (to, but excluding, such Interest Payment Date) to Holders the Holder of record as of such Regular Record Date, and the Fundamental Change Repurchase Price shall be equal to 100% of the principal amount of Notes to be repurchased pursuant to this Article 15; provided that . Any Notes so repurchased by the Company shall not be required to repurchase, or to make an offer to repurchase, the Notes upon a Fundamental Change if a third party makes such an offer paid for in the same manner, at the same time and otherwise in compliance with the requirements for an offer made by the Company as set forth in this Section 15.02 and such third party purchases all Notes properly surrendered and not validly withdrawn under its offer in the same manner, at the same time and otherwise in compliance with the requirements for an offer made by the Company as set forth in this Section 15.02cash.
(b) Repurchases of Notes under this Section 15.02 shall be made, at the option of the Holder thereof, upon:
(i) delivery to the Paying Agent or tender agent appointed to facilitate the repurchase (the “Tender Agent”) by a Holder of a duly completed written notice (the “Fundamental Change Repurchase Notice”) in the form set forth in Attachment 2 to the Form of Note attached hereto as Exhibit A, if the Notes are Physical Notes, or in compliance with the Depositary’s procedures Applicable Procedures for surrendering interests in Global Notes, if the Notes are Global Notes, in each case on or before the close of business on the Business Day immediately preceding the Fundamental Change Repurchase Date; and
(ii) delivery of the Notes, if the Notes are Physical Notes, to the Paying Agent on or Tender Agent, as before the case may be, at any time after delivery of first Business Day preceding the Fundamental Change Repurchase Notice Date (together with all necessary endorsements for transfer) at the Corporate Trust Office of the Paying Agent or the principal office of the Tender Agent located in the United States of America as notified by the Tender Agent to Holders and the Trustee, as applicableAgent, or book-entry transfer of the Notes, if the Notes are Global Notes, in compliance with the procedures of the DepositaryApplicable Procedures, in each case such delivery being a condition to receipt by the Holder of the Fundamental Change Repurchase Price therefor. The Fundamental Change Repurchase Xxx Xxxxxxxxxxx Xxxxxx Xxxxxxxxxx Notice in respect of any Notes to be repurchased shall state:
(i) in the case of Physical Notes, the certificate numbers of the Notes to be delivered for repurchase;
(ii) the portion of the principal amount of Notes to be repurchased, which must be $1,000 or an integral multiple thereof; and
(iii) that the Notes are to be repurchased by the Company pursuant to the applicable provisions of the Notes and this Indenture; provided, however, that if the Notes are Global Notes, the Fundamental Change Repurchase Notice must comply with appropriate Depositary proceduresthe Applicable Procedures. Notwithstanding anything herein to the contrary, any Holder delivering to the Paying Agent or Tender Agent, as the case may be, the Fundamental Change Repurchase Notice contemplated by this Section 15.02 shall have the right to withdraw, in whole or in part, such Fundamental Change Repurchase Notice at any time prior to the close of business on the Business Day immediately preceding the Fundamental Change Repurchase Date by delivery of a written notice of withdrawal to the Paying Agent or Tender Agent, as the case may be, in accordance with Section 15.03, or in accordance with the customary procedures of the Depository with respect to Global Notes. The Paying Agent or Tender Agent, as the case may be, shall promptly notify the Company of the receipt by it of any Fundamental Change Repurchase Notice or written notice of withdrawal thereof.
(c) On or before the 20th Business Day calendar day after the occurrence of the effective date of a Fundamental Change, the Company shall provide to all Holders of Notes and the Trustee, the Conversion Agent (in the case of a Conversion Agent if other than the Trustee) and the Paying Agent (in the case of a Paying Agent other than the Trustee) a written notice (the “Fundamental Change Company Notice”) of the occurrence of the effective date of the Fundamental Change and of the resulting repurchase right at the option of the Holders arising as a result thereof. In the case of Physical Notes, such notice shall be by first class mail or, in the case of Global Notes, such notice shall be delivered in accordance with the applicable procedures of the Depositary. Simultaneously with providing such notice, the Company shall publish a notice containing the information set forth in the Fundamental Change Company Notice on the Company’s website or through such other public medium as the Company may use at that timeApplicable Procedures. Each Fundamental Change Company Notice shall specify:
(i) the events causing the Fundamental Change;
(ii) the effective date of the Fundamental Change;
(iii) the last date on which a Holder may exercise the repurchase right pursuant to this Article 15;
(iv) the Fundamental Change Repurchase Price;
(v) the Fundamental Change Repurchase Date;
(vi) the name and address of the Paying Agent or Tender Agent, as the case may be, and the Conversion Agent, if applicable;
(vii) if applicable, the Conversion Rate and any adjustments to the Conversion Rate as a result of the such Fundamental Change (or related Make-Whole Fundamental Change);
(viii) that the Notes with respect to which a Fundamental Change Repurchase Notice has been delivered by a Holder may be converted only if the Holder validly withdraws the Fundamental Change Repurchase Notice in accordance with the terms of this Indenture; and
(ix) the procedures that Holders must follow to require the Company to repurchase their Notes. No failure of the Company to give the foregoing notices and no defect therein shall limit the Holders’ repurchase rights or affect the validity of the proceedings for the repurchase of the Notes pursuant to this Section 15.02. At the Company’s request, given at least five days prior to the date the Fundamental Change Company Notice is to be sent to the Holders (or such shorter period as may be agreed to by the Trustee), the Trustee shall give such notice in the Company’s name and at the Company’s expense; provided, however, that, in all cases, the text of such Fundamental Change Company Notice shall be prepared by the Company. Simultaneously with providing such notice, the Company shall publish a press release 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.
(d) Notwithstanding the foregoing, no Notes may be repurchased by the Company on any date at the option of the Holders upon a Fundamental Change if the principal amount of the Notes has been accelerated, and such acceleration has not been rescinded, on or prior to such date (except in the case of an acceleration resulting from a Default by the Company in the payment of the Fundamental Change Repurchase Price with respect to such Notes). The Paying Agent or Tender Agent, as the case may be, will promptly return to the respective Holders thereof any Physical Notes held by it during the acceleration of the Notes (except in the case of an acceleration resulting from a Default by the Company in the payment of the Fundamental Change Repurchase Price with respect to such Notes), or any instructions for book-entry transfer of the Notes in compliance with the procedures of the Depositary Applicable Procedures shall be deemed to have been cancelled, and, upon such return or cancellation, as the case may be, the Fundamental Change Repurchase Notice with respect thereto shall be deemed to have been withdrawn.
(e) Notwithstanding anything to the contrary in this Indenture, the Company shall not be required to repurchase, or to make an offer to repurchase, the Notes upon a Fundamental Change if a third party makes such an offer in the same manner, at the same time and otherwise in compliance with the requirements for an offer made by the Company as set forth in this Article 15, and such third party purchases all Notes properly surrendered and not validly withdrawn under its offer in the same manner, at the same time and otherwise in compliance with the requirements for an offer made by the Company as set forth in this Article 15.
Appears in 2 contracts
Samples: Indenture (Alteryx, Inc.), Indenture (Alteryx, Inc.)
Repurchase at Option of Holders Upon a Fundamental Change. (a) If a Fundamental Change occurs at any time prior to the Maturity Date, each Holder shall have the right, at such Holder’s option, to require the Company to repurchase for cash all of such Holder’s Notes, or any portion of the principal thereof properly surrendered and not validly withdrawn pursuant to Section 15.03 that is equal to minimum denominations of $1,000 or an integral multiple of $1,000 in excess thereof1,000, on the date (the “Fundamental Change Repurchase Date”) specified by the Company that is not less than 20 calendar days or more than 35 calendar days Business Days following the date of the Fundamental Change Company Notice at a repurchase price equal to 100% of the principal amount thereof, plus accrued and unpaid interest thereon on such Note to, but excluding, the Fundamental Change Repurchase Date (the “Fundamental Change Repurchase Price”), unless the Fundamental Change Repurchase Date falls after a Regular Record Date but on or prior to the Interest Payment Date to which such Regular Record Date relates, in which case the Company shall instead pay Holder of such Note at the full amount close of accrued and Business on such regular Record Date will be entitled, notwithstanding such repurchase, to receive on or, at the Company’s election, before such Interest Payment Date, the unpaid interest (that would have accrued on such Note to, but excluding, such Interest Payment Date) to Holders of record as of such Regular Record Date, and the Fundamental Change Repurchase Price shall be equal to 100% of the principal amount of Notes to be repurchased pursuant to this Article 15; provided that the Company shall not be required to repurchaseinclude accrued and unpaid interest on such Note to, or to make an offer to repurchasebut excluding, the Notes upon a Fundamental Change if a third party makes such an offer in the same manner, at the same time and otherwise in compliance with the requirements for an offer made by the Company as set forth in this Section 15.02 and such third party purchases all Notes properly surrendered and not validly withdrawn under its offer in the same manner, at the same time and otherwise in compliance with the requirements for an offer made by the Company as set forth in this Section 15.02Repurchase Date.
(ba) Repurchases of Notes under this Section 15.02 shall be made, at the option of the Holder thereof, upon:
(i) delivery to the Paying Agent or tender agent appointed to facilitate the repurchase (the “Tender Agent”) by a Holder of a duly completed notice (the “Fundamental Change Repurchase Notice”) in the form set forth in Attachment 2 to the Form of Note attached hereto as Exhibit A, if the Notes are Physical Notes, or in compliance with the Depositary’s procedures for surrendering interests in Global Notes, if the Notes are Global Notes, in each case case, on or before the close of business on the Business Day immediately preceding the Fundamental Change Repurchase Date; and
(ii) delivery of the Notes, if the Notes are Physical Notes, to the Paying Agent or Tender Agent, as the case may be, at any time after delivery of the Fundamental Change Repurchase Notice (together with all necessary endorsements for transfer) at the Corporate Trust Office of the Paying Agent or the principal office of the Tender Agent located in the United States of America as notified by the Tender Agent to Holders and the Trustee, as applicableAgent, or book-entry transfer of the Notes, if the Notes are Global Notes, in compliance with the procedures of the Depositary, in each case case, such delivery or transfer being a condition to receipt by the Holder of the Fundamental Change Repurchase Price therefor. The Fundamental Change Repurchase Notice in respect of any Physical Notes to be repurchased shall state:
(i) in the case of if Physical Notes, Notes have been issued the certificate numbers of the Notes to be delivered for repurchase;
(ii) the portion of the principal amount of Notes to be repurchased, which must be $1,000 or an integral multiple thereof; and
(iii) that the Notes are to be repurchased by the Company pursuant to the applicable provisions of the Notes and this Indenture; provided, however, that if . If the Notes are Global Notes, to exercise the Fundamental Change Repurchase Notice repurchase right, Holders must comply surrender their Notes in accordance with appropriate applicable Depositary procedures. Notwithstanding anything herein to the contrary, any Holder delivering to the Paying Agent or Tender Agent, as the case may be, the Fundamental Change Repurchase Notice contemplated by this Section 15.02 shall have the right to withdraw, in whole or in part, such Fundamental Change Repurchase Notice at any time prior to the close of business on the Business Day immediately preceding the Fundamental Change Repurchase Date by delivery of a written notice of withdrawal to the Paying Agent or Tender Agent, as the case may be, in accordance with Section 15.03, or in accordance with the customary procedures of the Depository with respect to Global Notes. The Paying Agent or Tender Agent, as the case may be, shall promptly notify the Company of the receipt by it of any Fundamental Change Repurchase Notice or written notice of withdrawal thereof.
(cb) On or before the 20th Business Day after the occurrence of the effective date of a Fundamental Change, the Company shall provide to all Holders of Notes and the Trustee, the Conversion Agent (in the case of a Conversion Agent other than the Trustee) and the Paying Agent (in the case of a Paying Agent if other than the Trustee) a written notice (the “Fundamental Change Company Notice”) of the occurrence of the effective date of the Fundamental Change and of the repurchase right at the option of the Holders arising as a result thereof. In the case of Physical Notes, such notice shall be by first class mail or, in the case of Global Notes, such notice shall be delivered in accordance with the applicable procedures of the Depositary. Simultaneously with providing such notice, the Company shall publish a notice containing the such information set forth in the Fundamental Change Company Notice on the Company’s website or through such other public medium as the Company may use at that time, including filing on a Form 8-K with the Commission. Each Fundamental Change Company Notice shall specify:
(i) the events causing the Fundamental Change;
(ii) the effective date of the Fundamental Change;
(iii) the last date on which a Holder may exercise the repurchase right pursuant to this Article 15;
(iv) the Fundamental Change Repurchase Price;
(v) the Fundamental Change Repurchase Date;
(vi) the name and address of the Paying Agent or Tender Agent, as the case may be, and the Conversion Agent, if applicable;
(vii) if applicable, the Conversion Rate and any adjustments to the Conversion Rate as a result of the Fundamental ChangeRate;
(viii) that the Notes with respect to which a Fundamental Change Repurchase Notice has been delivered by a Holder may be converted only if the Holder validly withdraws the Fundamental Change Repurchase Notice in accordance with the terms of this Indenture; and
(ix) the procedures that Holders must follow to require the Company to repurchase their Notes. No failure of the Company to give the foregoing notices and no defect therein shall limit the Holders’ repurchase rights or affect the validity of the proceedings for the repurchase of the Notes pursuant to this Section 15.02. At the Company’s written request, given at least five days prior to the date the Fundamental Change Company Notice is to be sent (or such shorter period as may be agreed to by the Trustee), the Trustee shall give such notice in the Company’s name and at the Company’s expense; provided, however, that, in all cases, the text of such Fundamental Change Company Notice shall be prepared by the CompanyCompany and delivered to the Trustee at least three Business Days prior (or such shorter period as shall be acceptable to the Trustee).
(c) Notwithstanding anything to the contrary in this Article 15, the Company shall not be required to repurchase, or to make an offer to repurchase, the Notes upon a Fundamental Change if a third party makes such an offer in the same manner, at the same time and otherwise in compliance with the requirements for an offer made by the Company as set forth in this Article 15 and such third party purchases all Notes properly surrendered and not validly withdrawn under its offer in the same manner, at the same time and otherwise in compliance with the requirements for an offer made by the Company as set forth above.
(d) Notwithstanding the foregoing, no Notes may be repurchased by the Company on any date at the option of the Holders upon a Fundamental Change if the principal amount of the Notes has been accelerated, and such acceleration has not been rescinded, on or prior to such date (except in the case of an acceleration resulting from a Default by the Company in the payment of the Fundamental Change Repurchase Price with respect to such Notes). .) The Paying Agent or Tender Agent, as the case may be, will promptly return to the respective Holders thereof any Physical Notes held by it during the acceleration of the Notes (except in the case of an acceleration resulting from a Default by the Company in the payment of the Fundamental Change Repurchase Price with respect to such Notes), or any instructions for book-entry transfer of the Notes in compliance with the applicable procedures of the Depositary shall be deemed to have been cancelled, and, upon such return or cancellation, as the case may be, the Fundamental Change Repurchase Notice with respect thereto shall be deemed to have been withdrawn.
Appears in 2 contracts
Samples: Indenture (Jetblue Airways Corp), Indenture (Jetblue Airways Corp)
Repurchase at Option of Holders Upon a Fundamental Change. (a) If a Fundamental Change occurs at any time prior to the Maturity Date, each Holder shall have the right, at such Holder’s option, to require the Company to repurchase for cash all of such Holder’s Notes, or any portion thereof properly surrendered and not validly withdrawn pursuant to Section 15.03 that is equal to minimum denominations of $1,000 or an integral multiple of $1,000 in excess thereof1,000, on the date (the “Fundamental Change Repurchase Xxxxxxxxxxx Xxxxxx Xxxxxxxxxx Date”) specified by the Company that is not less than 20 calendar days Business Days or more than 35 calendar days Business Days following the date of the Fundamental Change Company Notice at a repurchase price equal to 100% of the principal amount thereof, plus accrued and unpaid interest thereon to, but excluding, the Fundamental Change Repurchase Date (“Accrued Interest”) plus all unpaid interest from the Fundamental Change Repurchase Date to, but excluding, the Maturity Date (the “Make-Whole Interest Payment”) (together, the “Fundamental Change Repurchase Price”), ) unless the Fundamental Change Repurchase Date falls after a Regular Record Date but on or prior to the Interest Payment Date to which such Regular Record Date relates, in which case the Company shall instead pay the full amount of accrued and unpaid interest (to, but excluding, such the Accrued Interest Payment Date) to Holders of record as of such Regular Record Date, and the Fundamental Change Repurchase Price shall be equal to 100% of the principal amount of Notes to be repurchased plus the Make-Whole Interest Payment pursuant to this Article 15; provided that the Company shall not be required to repurchase, or to make an offer to repurchase, the Notes upon a Fundamental Change if a third party makes such an offer in the same manner, at the same time and otherwise in compliance with the requirements for an offer made by the Company as set forth in this Section 15.02 and such third party purchases all Notes properly surrendered and not validly withdrawn under its offer in the same manner, at the same time and otherwise in compliance with the requirements for an offer made by the Company as set forth in this Section 15.02.
(b) Repurchases of Notes under this Section 15.02 shall be made, at the option of the Holder thereof, upon:
(i) delivery to the Paying Agent or tender agent appointed to facilitate the repurchase (the “Tender Agent”) by a Holder of a duly completed notice (the “Fundamental Change Repurchase Notice”) in the form set forth in Attachment 2 to the Form of Note attached hereto as Exhibit A, if the Notes are Physical Notes, or in compliance with the Depositary’s procedures for surrendering interests in Global Notes, if the Notes are Global Notes, in each case on or before the close of business on the Business Day immediately preceding the Fundamental Change Repurchase Date; and
(ii) delivery of the Notes, if the Notes are Physical Notes, to the Paying Agent or Tender Agent, as the case may be, at any time after delivery of the Fundamental Change Repurchase Notice (together with all necessary endorsements for transfer) at the Corporate Trust Office of the Paying Agent or the principal office of the Tender Agent located in the United States of America as notified by the Tender Agent to Holders and the Trustee, as applicableAgent, or book-entry transfer of the Notes, if the Notes are Global Notes, in compliance with the procedures of the Depositary, in each case such delivery being a condition to receipt by the Holder of the Fundamental Change Repurchase Price therefor. The Fundamental Change Repurchase Notice in respect of any Physical Notes to be repurchased shall state:
(i) in the case of Physical Notes, the certificate numbers of the Notes to be delivered for repurchase;
(ii) the portion of the principal amount of Notes to be repurchased, which must be $1,000 or an integral multiple thereof; and
(iii) that the Notes are to be repurchased by the Company pursuant to the applicable provisions of the Notes and this Indenture; provided, however, that if . If the Notes are Global Notes, to exercise the Fundamental Change Repurchase Notice repurchase right, Holders must comply surrender their Notes in accordance with appropriate applicable Depositary procedures. Notwithstanding anything herein to the contrary, any Holder delivering to the Paying Agent or Tender Agent, as the case may be, the Fundamental Change Repurchase Notice contemplated by this Section 15.02 shall have the right to withdraw, in whole or in part, such Fundamental Change Repurchase Notice at any time prior to the close of business on the Business Day immediately preceding the Fundamental Change Repurchase Date by delivery of a written notice of withdrawal to the Paying Agent or Tender Agent, as the case may be, in accordance with Section 15.03, or in accordance with the customary procedures of the Depository with respect to Global Notes. The Paying Agent or Tender Agent, as the case may be, shall promptly notify the Company of the receipt by it of any Fundamental Change Repurchase Notice or written notice of withdrawal thereof.
(c) On or before the 20th Business Day after the occurrence of the effective date of a Fundamental Change, the Company shall provide to all Holders of Notes and the Trustee, the Conversion Agent (in the case of a Conversion Agent other than the Trustee) and the Paying Agent (in the case of a Paying Agent other than the Trustee) a written notice (the “Fundamental Change Company Notice”) of the occurrence of the effective date of the Fundamental Change and of the repurchase right at the option of the Holders arising as a result thereof. In the case of Physical Notes, such notice shall be by first class mail or, in the case of Global Notes, such notice shall be delivered in accordance with the applicable procedures of the Depositary. Simultaneously with providing such notice, the Company shall publish a notice containing the information set forth in the Fundamental Change Company Notice on the Company’s website or through such other public medium as the Company may use at that time. Each Fundamental Change Company Notice shall specify:
(i) the events causing the Fundamental Change;
(ii) the effective date of the Fundamental Change;
(iii) the last date on which a Holder may exercise the repurchase right pursuant to this Article 15;
(iv) the Fundamental Change Repurchase Price;
(v) the Fundamental Change Repurchase Date;
(vi) the name and address of the Paying Agent or Tender Agent, as the case may be, and the Conversion Agent, if applicable;
(vii) if applicable, the Conversion Rate and any adjustments to the Conversion Rate as a result of the such Fundamental Change;
(viii) that the Notes with respect to which a Fundamental Change Repurchase Notice has been delivered by a Holder may be converted only if the Holder validly withdraws the Fundamental Change Repurchase Notice in accordance with the terms of this Indenture; and
(ix) the procedures that Holders must follow to require the Company to repurchase their Notes. No failure of the Company to give the foregoing notices and no defect therein shall limit the Holders’ repurchase rights or affect the validity of the proceedings for the repurchase of the Notes pursuant to this Section 15.02. At the Company’s request, given at least five days prior to the date the Fundamental Change Company Notice is to be sent (or such shorter period as may be agreed to by the Trustee), the Trustee shall give such notice in the Company’s name and at the Company’s expense; provided, however, that, in all cases, the text of such Fundamental Change Company Notice shall be prepared by the Company.
(d) Notwithstanding the foregoing, no Notes may be repurchased by the Company on any date at the option of the Holders upon a Fundamental Change if the principal amount of the Notes has been accelerated, and such acceleration has not been rescinded, on or prior to such date (except in the case of an acceleration resulting from a Default by the Company in the payment of the Fundamental Change Repurchase Price with respect to such Notes). The Paying Agent or Tender Agent, as the case may be, will promptly return to the respective Holders thereof any Physical Notes held by it during the acceleration of the Notes (except in the case of an acceleration resulting from a Default by the Company in the payment of the Fundamental Change Repurchase Price with respect to such Notes), or any instructions for book-entry transfer of the Notes in compliance with the procedures of the Depositary shall be deemed to have been cancelled, and, upon such return or cancellation, as the case may be, the Fundamental Change Repurchase Notice with respect thereto shall be deemed to have been withdrawn.
Appears in 2 contracts
Samples: Indenture (Invitae Corp), Investment Agreement (Invitae Corp)
Repurchase at Option of Holders Upon a Fundamental Change. (a) If a Fundamental Change occurs at any time prior to the Maturity Datetime, then each Holder shall have the right, at such Holder’s option, to require the Company to repurchase purchase for cash any or all of such Holder’s Notes, Notes or any portion thereof that is equal to minimum denominations of $1,000 or an integral a multiple of $1,000 in excess thereofprincipal amount, on the date (the “Fundamental Change Repurchase Purchase Date”) specified by the Company that is not less than 20 calendar days or and not more than 35 calendar days following the date of the Fundamental Change Company Purchase Right Notice (as defined below) at a repurchase purchase price equal to 100% of the principal amount thereof, plus together with accrued and unpaid interest thereon interest, thereon, if any, to, but excluding, the Fundamental Change Repurchase Purchase Date (the “Fundamental Change Repurchase Purchase Price”); provided, unless the however, that if Notes are purchased pursuant to this Section 15.02 on a Fundamental Change Repurchase Purchase Date that falls after the close of business on a Regular Record Date but on at or prior to the close of business on the corresponding Interest Payment Date, the interest payable in respect of such Interest Payment Date shall be payable to which such Regular Record Date relates, in which case the Company shall instead pay the full amount of accrued and unpaid interest (to, but excluding, such Interest Payment Date) to Holders of record as of such the corresponding Regular Record Date, and in which case, the Fundamental Change Repurchase Purchase Price shall be equal to 100% of the principal amount of Notes to be repurchased pursuant to this Article 15; provided that the Company shall not be required to repurchase, or to make an offer to repurchase, the Notes upon a Fundamental Change if a third party makes such an offer in the same manner, at the same time and otherwise in compliance with the requirements for an offer made by the Company as set forth in this Section 15.02 and such third party purchases all Notes properly surrendered and not validly withdrawn under its offer in the same manner, at the same time and otherwise in compliance with the requirements for an offer made by the Company as set forth in this Section 15.02being purchased.
(b) Repurchases Purchases of Notes under this Section 15.02 shall be made, at the option of the Holder thereof, upon:
(i) delivery to the Trustee (or other Paying Agent or tender agent appointed to facilitate by the repurchase (the “Tender Agent”Company) by a Holder of a duly completed notice (the “Fundamental Change Repurchase Purchase Notice”) in the form set forth in Attachment 2 to on the Form reverse of the Note attached hereto as Exhibit A, if during the Notes are Physical Notes, or in compliance with period between the Depositary’s procedures for surrendering interests in Global Notes, if delivery of the Notes are Global Notes, in each case on or before Fundamental Change Purchase Right Notice and the close of business on the Business Day immediately preceding the Fundamental Change Repurchase DatePurchase Date (the “Fundamental Change Expiration Time”); and
(ii) delivery or book-entry transfer of the NotesNotes to the Trustee (or other Paying Agent appointed by the Company) at any time during period between the delivery of the Fundamental Change Purchase Notice and the Fundamental Change Expiration Time (together with all necessary endorsements, if the Notes are Physical Notes, to the Paying Agent or Tender Agent, as the case may be, at any time after delivery of the Fundamental Change Repurchase Notice (together with all necessary endorsements for transfer) at the Corporate Trust Office of the Paying Agent or the principal corporate trust office of the Tender Trustee (or other Paying Agent located in the United States of America as notified appointed by the Tender Agent to Holders and the TrusteeCompany), as applicable, or book-entry transfer of the Notes, if the Notes are Global Notes, in compliance with the procedures of the Depositary, in each case such delivery being a condition to receipt by the Holder of the Fundamental Change Repurchase Purchase Price therefor. The Fundamental Change Repurchase Purchase Notice in respect of any Notes to be repurchased shall state:
(iA) in the case of Physical Notesif certificated, the certificate numbers of the Notes to be delivered for repurchasepurchase;
(iiB) the portion of the principal amount of Notes to be repurchasedpurchased, which must be $1,000 or an integral multiple thereof; and
(iiiC) that the Notes are to be repurchased purchased by the Company pursuant to the applicable provisions of the Notes and this the Indenture; provided, however, that if the Notes are Global Notes, the Fundamental Change Repurchase Purchase Notice must comply with appropriate applicable Depositary procedures. Notwithstanding anything herein The Company shall be required to the contrarypurchase, any Holder delivering pursuant to the Paying Agent or Tender AgentArticle 15, as the case may be, Notes that have been validly surrendered and not withdrawn on the Fundamental Change Repurchase Notice contemplated by Purchase Date pursuant to Section 15.03. Notes to be purchased pursuant to this Section 15.02 shall have the right to withdraw, be paid for in whole cash. The Trustee (or in part, such Fundamental Change Repurchase Notice at any time prior to the close of business on the Business Day immediately preceding the Fundamental Change Repurchase Date by delivery of a written notice of withdrawal to the other Paying Agent or Tender Agent, as appointed by the case may be, in accordance with Section 15.03, or in accordance with the customary procedures of the Depository with respect to Global Notes. The Paying Agent or Tender Agent, as the case may be, Company) shall promptly notify the Company of the receipt by it of any Fundamental Change Repurchase Purchase Notice or written notice of withdrawal thereofthereof in accordance with the provisions of Section 15.03. Any Note that is to be purchased only in part shall be, if certificated, surrendered to the Trustee (with, if the Company or the Trustee so requires, due endorsement by, or a written instrument of transfer in form satisfactory to the Company and the Trustee duly executed by the Holder thereof or his attorney duly authorized in writing), and the Company shall execute, and the Trustee shall authenticate and make available for delivery to the Holder of such Note without service charge, a new Note or Notes, containing identical terms and conditions, each in an authorized denomination in aggregate principal amount equal to and in exchange for the unpurchased portion of the principal of the Note so surrendered, or, if a Global Note, the Trustee, or the Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby for the purchased portion of the principal of the Note.
(c) On or before The Company shall give the 20th Business Day Trustee and Paying Agent and each Holder a written notice of the Fundamental Change within 20 calendar days after the occurrence of the effective date of a such Fundamental ChangeChange (such notice, the Company shall provide to all Holders of Notes and the Trustee, the Conversion Agent (in the case of a Conversion Agent other than the Trustee) and the Paying Agent (in the case of a Paying Agent other than the Trustee) a notice (the “Fundamental Change Company Purchase Right Notice”) of the occurrence of the effective date of the Fundamental Change and of the repurchase purchase right at the option of the Holders arising as a result thereof. In the case of Physical Notes, such Such notice shall be either by first class mail or, in the case of with respect to Global Notes, such notice shall be delivered in accordance with the applicable procedures of the Depositary’s notice procedures. Simultaneously with providing such noticeFundamental Change Purchase Right Notice, the Company shall publish a notice containing the information set forth in the Fundamental Change Company Notice included therein on the Company’s website or through such other public medium as the Company may use at that such time. Each The Fundamental Change Company Purchase Right Notice shall specify:specify (if applicable):
(i) the events causing the Fundamental Change;
(ii) the effective date of the Fundamental Change;
(iii) the last date on which a Holder may exercise the repurchase purchase right pursuant to this Article 15;
(iv) the Fundamental Change Repurchase Purchase Price;
(v) the Fundamental Change Repurchase Purchase Date;
(vi) the name and address of the Paying Agent or Tender Agent, as the case may be, and the Conversion Agent, if applicable;
(vii) if applicable, the applicable Conversion Rate and any adjustments to the applicable Conversion Rate as a result of the Fundamental ChangeRate;
(viii) that the Notes with respect to which a Fundamental Change Repurchase Purchase Notice has been delivered by a Holder may be converted only if the Holder validly withdraws the Fundamental Change Repurchase Purchase Notice in accordance with the terms of this IndentureSection 15.02; and
(ix) the procedures that Holders must follow to require the Company to repurchase purchase their Notes. No failure of the Company to give the foregoing notices and no defect therein shall limit the Holders’ repurchase rights or affect the validity of the proceedings for the repurchase of the Notes pursuant to this Section 15.02. At the Company’s request, given at least five days prior to the date the Fundamental Change Company Notice is to be sent (or such shorter period as may be agreed to by the Trustee), the Trustee shall give such notice in the Company’s name and at the Company’s expense; provided, however, that, in all cases, the text of such Fundamental Change Company Notice shall be prepared by the Company.
(d) Notwithstanding anything to the foregoingcontrary herein, no Notes may be repurchased purchased by the Company on any date at the option of the Holders upon a Fundamental Change if the principal amount of the Notes has been accelerated, and such acceleration has not been rescinded, on or prior to such date the relevant Fundamental Change Purchase Date (except in the case of an acceleration resulting from a Default by the Company Company’s default in the payment of the Fundamental Change Repurchase Purchase Price with respect to such Notes). The Paying Agent or Tender Agent, as the case may be, will promptly return .
(e) Notwithstanding anything to the respective Holders thereof any Physical Notes held by it during the acceleration of the Notes (except contrary in the case of an acceleration resulting from a Default by this Article 15, the Company in the payment of shall not be required to make a Fundamental Change purchase offer pursuant to a Fundamental Change Purchase Notice upon a Fundamental Change if a third party makes the Fundamental Change Repurchase Price with respect to such Notes)purchase offer in the manner, or any instructions for book-entry transfer of at the Notes times and otherwise in compliance with the procedures of the Depositary shall be deemed to have been cancelled, and, upon such return or cancellation, as the case may be, requirements set forth in this Article 15 and purchases all Notes properly tendered and not withdrawn under the Fundamental Change Repurchase Notice with respect thereto shall be deemed to have been withdrawnpurchase offer.
Appears in 2 contracts
Samples: Indenture (Envestnet, Inc.), Indenture (Envestnet, Inc.)
Repurchase at Option of Holders Upon a Fundamental Change. (a) If there shall occur a Fundamental Change occurs at any time prior to the Stated Maturity Dateof the Notes, then each Holder Noteholder shall have the right, at such Holder’s option, right to require the Company Issuer to repurchase its Notes for cash all of such Holder’s Notescash, in whole or any portion thereof that is equal to minimum denominations in part (in principal amounts of $1,000 or an and integral multiple of $1,000 in excess multiples thereof), on the a date (the “Fundamental Change Repurchase Purchase Date”) specified by the Company that is Issuer (which date shall be not less earlier than 20 calendar fifteen (15) days or and not more than 35 calendar thirty (30) days following after the date of the Issuer Repurchase Notice Date related to such Fundamental Change Company Notice Change) at a repurchase purchase price equal to 100% of the principal amount thereofof the Notes being repurchased, plus accrued and unpaid interest thereon to, but excluding, to the Fundamental Change Repurchase Purchase Date (such amount, the “Fundamental Change Repurchase Purchase Price”), unless the Fundamental Change Repurchase Date falls after a Regular Record Date but on or prior to the Interest Payment Date to which such Regular Record Date relates, in which case the Company shall instead pay the full amount of accrued and unpaid interest (to, but excluding, such Interest Payment Date) to Holders of record as of such Regular Record Date, and the Fundamental Change Repurchase Price shall be equal to 100% of the principal amount of Notes to be repurchased pursuant to this Article 15; provided that the Company shall not be required to repurchase, or to make an offer to repurchase, the Notes upon a Fundamental Change if a third party makes such an offer in the same manner, at the same time and otherwise in compliance with the requirements for an offer made by the Company as set forth in this Section 15.02 and such third party purchases all Notes properly surrendered and not validly withdrawn under its offer in the same manner, at the same time and otherwise in compliance with the requirements for an offer made by the Company as set forth in this Section 15.02.
(b) Repurchases of Notes under this Section 15.02 shall be made, at the option of the Holder thereof, upon:
(i) delivery to the Paying Agent or tender agent appointed to facilitate the repurchase (the “Tender Agent”) by a Holder of a duly completed notice (the “Fundamental Change Repurchase Notice”) in the form set forth in Attachment 2 to the Form of Note attached hereto as Exhibit A, if the Notes are Physical Notes, or in compliance with the Depositary’s procedures for surrendering interests in Global Notes, if the Notes are Global Notes, in each case on or before the close of business on the Business Day immediately preceding the Fundamental Change Repurchase Date; and
(ii) delivery of the Notes, if the Notes are Physical Notes, to the Paying Agent or Tender Agent, as the case may be, at any time after delivery of the Fundamental Change Repurchase Notice (together with all necessary endorsements for transfer) at the Corporate Trust Office of the Paying Agent or the principal office of the Tender Agent located in the United States of America as notified by the Tender Agent to Holders and the Trustee, as applicable, or book-entry transfer of the Notes, if the Notes are Global Notes, in compliance with the procedures of the Depositary, in each case such delivery being a condition to receipt by the Holder of the Fundamental Change Repurchase Price therefor. The Fundamental Change Repurchase Notice in respect of any Notes to be repurchased shall state:
(i) in the case of Physical Notes, the certificate numbers of the Notes to be delivered for repurchase;
(ii) the portion of the principal amount of Notes to be repurchased, which must be $1,000 or an integral multiple thereof; and
(iii) that the Notes are to be repurchased by the Company pursuant to the applicable provisions of the Notes and this Indenture; provided, however, that if the Notes are Global Notes, the Fundamental Change Repurchase Notice must comply with appropriate Depositary procedures. Notwithstanding anything herein to the contrary, any Holder delivering to the Paying Agent or Tender Agent, as the case may be, the Fundamental Change Repurchase Notice contemplated by this Section 15.02 shall have the right to withdraw, in whole or in part, such Fundamental Change Repurchase Notice at any time prior to the close of business on the Business Day immediately preceding the Fundamental Change Repurchase Date by delivery of a written notice of withdrawal to the Paying Agent or Tender Agent, as the case may be, in accordance with Section 15.03, or in accordance with the customary procedures of the Depository with respect to Global Notes. The Paying Agent or Tender Agent, as the case may be, shall promptly notify the Company of the receipt by it of any Fundamental Change Repurchase Notice or written notice of withdrawal thereof.
(c) On or before the 20th Business Day Within 20 days after the occurrence of the effective date of a Fundamental Change, the Company Issuer shall provide mail or cause to be mailed to all Holders holders of Notes and record on the Trustee, the Conversion Agent (in the case of a Conversion Agent other than the Trustee) and the Paying Agent (in the case of a Paying Agent other than the Trustee) a notice (the “Fundamental Change Company Notice”) of the occurrence of the effective date of the Fundamental Change (and of the repurchase right at the option of the Holders arising to beneficial owners as a result thereof. In the case of Physical Notes, such notice shall be required by first class mail or, in the case of Global Notes, such notice shall be delivered in accordance with the applicable procedures of the Depositary. Simultaneously with providing such notice, the Company shall publish a notice containing the information law) an Issuer Repurchase Notice as set forth in Section 3.06 with respect to such Fundamental Change. The Issuer shall also deliver a copy of the Issuer Repurchase Notice to the Trustee and the Paying Agent at such time as it is mailed to Noteholders. In addition to the mailing of such Issuer Repurchase Notice, the Issuer shall disseminate a press release through Dow Xxxxx & Company, Inc., Bloomberg Business News, PR Newswire or a substantially similar financial news organization announcing the occurrence of such Fundamental Change Company Notice and publish such information in a newspaper of general circulation in The City of New York or on the CompanyIssuer’s website web site, or through such other public medium as the Company may use Issuer shall deem appropriate at that such time. Each Fundamental Change Company Notice The failure to issue any such press release or any defect therein shall specify:
(i) not affect the events causing the Fundamental Change;
(ii) the effective date validity of the Fundamental Change;
(iii) the last date on which a Holder may exercise Issuer Repurchase Notice or any proceedings for the repurchase right pursuant of any Note which any Noteholder may elect to have the Issuer redeem as provided in this Article 15;
(iv) the Fundamental Change Repurchase Price;
(v) the Fundamental Change Repurchase Date;
(vi) the name and address of the Paying Agent or Tender Agent, as the case may be, and the Conversion Agent, if applicable;
(vii) if applicable, the Conversion Rate and any adjustments to the Conversion Rate as a result of the Fundamental Change;
(viii) that the Notes with respect to which a Fundamental Change Repurchase Notice has been delivered by a Holder may be converted only if the Holder validly withdraws the Fundamental Change Repurchase Notice in accordance with the terms of this Indenture; and
(ix) the procedures that Holders must follow to require the Company to repurchase their NotesSection 3.05. No failure of the Company Issuer to give the foregoing notices and no defect therein shall limit the HoldersNoteholders’ repurchase rights or affect the validity of the proceedings for the repurchase of the Notes pursuant to this Section 15.02. At 3.05.
(c) In order to exercise its repurchase right, the Company’s requestholder must deliver to the Paying Agent, given at least five days prior to the date close of business on the third Business Day prior to the Fundamental Change Company Purchase Date, a written notice of repurchase (the “Repurchase Notice”). Such Repurchase Notice shall state: (A) the certificate number (if the Note is in certificated form) of the Note which the holder will deliver to be sent repurchased, (or B) the portion of the principal amount of the Note which the holder will deliver to be repurchased, in multiples of $1,000, provided that the remaining principal amount of Notes is in an authorized denomination and (C) that such shorter period as may Note shall be agreed repurchased pursuant to by the Trustee), the Trustee shall give such notice terms and conditions specified in the Company’s name Note and at the Company’s expense; provided, however, that, in all cases, the text this Indenture. Any Repurchase Notice provided in respect of such Fundamental Change Company Notice a beneficial interest in a Global Note shall be prepared by required to comply with the Companyapplicable procedures of the Depositary.
(d) The Issuer, if so requested, shall repurchase from the holder thereof, pursuant to this Section 3.05, a portion of a Note, if the principal amount of such portion is $1,000 or a whole multiple of $1,000. Provisions of this Indenture that apply to the repurchase of all of a Note also apply to the repurchase of such portion of such Note.
(e) Notwithstanding the foregoing, no Notes may be repurchased by the Company on any date at the option Issuer pursuant to this Section 3.05 if there has occurred and is continuing an Event of the Holders upon a Fundamental Change if the principal amount of Default with respect to the Notes has been accelerated, and such acceleration has not been rescinded, on or prior to such date (except in the case of an acceleration resulting from other than a Default by the Company default in the payment of the Fundamental Change Repurchase Purchase Price with respect for the Notes to such Notesbe repurchased). .
(f) The Paying Agent shall promptly notify the Issuer of the receipt by it of any Repurchase Notice or Tender Agent, written notice of withdrawal thereof. All questions as the case may be, will promptly return to the respective Holders thereof validity, eligibility (including time of receipt) and acceptance of any Physical Notes held by it during the acceleration of the Notes (except in the case of an acceleration resulting from a Default Note for repurchase shall be determined by the Company in the payment of the Fundamental Change Repurchase Price with respect to such Notes)Issuer, or any instructions for book-entry transfer of the Notes in compliance with the procedures of the Depositary whose determination shall be deemed to have been cancelled, and, upon such return or cancellation, as the case may be, the Fundamental Change Repurchase Notice with respect thereto shall be deemed to have been withdrawnfinal and binding absent manifest error.
Appears in 2 contracts
Samples: Nineteenth Supplemental Indenture (Istar Financial Inc), Indenture (KKR Financial Holdings LLC)
Repurchase at Option of Holders Upon a Fundamental Change. (a) If a Fundamental Change occurs at any time prior to the Maturity Datetime, then each Holder Noteholder shall have the right, at such Holder’s option, to require the Company to repurchase for cash all of such Holder’s Notes, Notes or any portion thereof that is equal to minimum denominations of $1,000 or an integral a multiple of $1,000 in excess thereofprincipal amount, for cash on the date (the “Fundamental Change Repurchase Date”) specified by the Company that is not less than 20 calendar days or twenty (20) Business Days and not more than 35 calendar days following thirty-five (35) Business Days after the date of the Fundamental Change Company Notice (as defined below) at a repurchase price equal to 100% of the principal amount thereof, plus together with accrued and unpaid interest thereon to, but excluding, the Fundamental Change Repurchase Date (the “Fundamental Change Repurchase Price”), unless the Fundamental Change Repurchase Date falls after a Regular Record Date but on or prior to the Interest Payment Date to which such Regular Record Date relates, in which case the Company shall instead pay the full amount of accrued and unpaid interest (to, but excluding, such Interest Payment Date) to Holders of record as of such Regular Record Date, and the Fundamental Change Repurchase Price shall be equal to 100% of the principal amount of Notes to be repurchased pursuant to this Article 15; provided that the Company shall not be required to repurchase, or to make an offer to repurchase, the Notes upon a Fundamental Change if a third party makes such an offer in the same manner, at the same time and otherwise in compliance with the requirements for an offer made by the Company as set forth in this Section 15.02 and such third party purchases all Notes properly surrendered and not validly withdrawn under its offer in the same manner, at the same time and otherwise in compliance with the requirements for an offer made by the Company as set forth in this Section 15.02.
(b) . Repurchases of Notes under this Section 15.02 9.02 shall be made, at the option of the Holder thereof, upon:
(i) delivery to the Trustee (or other Paying Agent or tender agent appointed to facilitate by the repurchase (the “Tender Agent”Company) by a Holder of a duly completed notice (the “Fundamental Change Repurchase Notice”) in the form set forth in Attachment 2 on the reverse of the Note prior to the Form of Note attached hereto as Exhibit A, if the Notes are Physical Notes, or in compliance with the Depositary’s procedures for surrendering interests in Global Notes, if the Notes are Global Notes, in each case on or before the close of business on the Business Day immediately preceding the Fundamental Change Repurchase Date; and
(ii) delivery or book-entry transfer of the Notes, if the Notes are Physical Notes, to the Trustee (or other Paying Agent or Tender Agent, as appointed by the case may be, Company) at any time after delivery of the Fundamental Change Repurchase Notice (together with all necessary endorsements for transferendorsements) at the Corporate Trust Office of the Trustee (or other Paying Agent or appointed by the principal office of the Tender Agent located Company) in the United States Borough of America as notified by the Tender Agent to Holders and the TrusteeManhattan, as applicable, or book-entry transfer of the Notes, if the Notes are Global Notes, in compliance with the procedures of the Depositary, in each case such delivery being a condition to receipt by the Holder of the Fundamental Change Repurchase Price therefor; provided that such Fundamental Change Repurchase Price shall be so paid pursuant to this Section 9.02 only if the Note so delivered to the Trustee (or other Paying Agent appointed by the Company) shall conform in all respects to the description thereof in the related Fundamental Change Repurchase Notice. The Fundamental Change Repurchase Notice in respect of any Notes to be repurchased shall state:
(iA) in the case of Physical Notesif certificated, the certificate numbers of the Notes to be delivered for repurchase;
(iiB) the portion of the principal amount of Notes to be repurchased, which must be $1,000 or an integral multiple thereof; and
(iiiC) that the Notes are to be repurchased by the Company pursuant to the applicable provisions of the Notes and this Fourth Supplemental Indenture; provided, however, that if . Any repurchase by the Notes are Global Notes, the Fundamental Change Repurchase Notice must comply with appropriate Depositary procedures. Notwithstanding anything herein Company contemplated pursuant to the contrary, any Holder delivering to the Paying Agent or Tender Agent, as the case may be, the Fundamental Change Repurchase Notice contemplated by provisions of this Section 15.02 9.02 shall have be consummated by the right delivery of the consideration to withdraw, in whole or in part, such Fundamental Change Repurchase Notice at any time prior to be received by the close Holder promptly following the later of business on the Business Day immediately preceding the Fundamental Change Repurchase Date by and the time of the book-entry transfer or delivery of a written notice of withdrawal to the Note. The Trustee (or other Paying Agent or Tender Agent, as appointed by the case may be, in accordance with Section 15.03, or in accordance with the customary procedures of the Depository with respect to Global Notes. The Paying Agent or Tender Agent, as the case may be, Company) shall promptly notify the Company of the receipt by it of any Fundamental Change Repurchase Notice or written notice of withdrawal thereofthereof in accordance with the provisions of Section 9.02(c). Any Note that is to be repurchased only in part shall be surrendered to the Trustee (with, if the Company or the Trustee so requires, due endorsement by, or a written instrument of transfer in form satisfactory to the Company and the Trustee duly executed by the Holder thereof or his attorney duly authorized in writing), and the Company shall execute, and the Trustee shall authenticate and make available for delivery to the Holder of such Note without service charge, a new Note or Notes, containing identical terms and conditions, each in an authorized denomination in aggregate principal amount equal to and in exchange for the unrepurchased portion of the principal of the Note so surrendered.
(cb) On or before the 20th Business Day twentieth day after the occurrence of the effective date of a any Fundamental Change, the Company shall provide to all Holders of record of the Notes and the Trustee, the Conversion Agent (in the case of a Conversion Agent other than the Trustee) Trustee and the Paying Agent (in the case of a Paying Agent other than the Trustee) a notice (the “Fundamental Change Company Notice”) of the occurrence of the effective date of the such Fundamental Change and of the repurchase right at the option of the Holders arising as a result thereof. In the case of Physical Notes, such notice Such mailing shall be by first class mail or, in the case of Global Notes, such notice shall be delivered in accordance with the applicable procedures of the Depositarymail. Simultaneously with providing such noticeFundamental Change Company Notice, the Company shall publish a notice containing the information set forth included therein once in the Fundamental Change Company Notice a newspaper of general circulation in The City of New York or publish such information on the Company’s website or through such other public medium as the Company may use at that such time. Each Fundamental Change Company Notice shall specify:
(i) the events causing the Fundamental Change;
(ii) the effective date of the Fundamental Change;
(iii) that the last date on which a Holder may must exercise the repurchase right pursuant on or prior to this Article 15the close of business on the Fundamental Change Repurchase Date;
(iv) the Fundamental Change Repurchase Price;
(v) the Fundamental Change Repurchase Date;
(vi) the name and address of the Paying Agent or Tender Agent, as the case may be, and the Conversion Exchange Agent, if applicable;
(vii) if applicable, the Conversion applicable Exchange Rate and any adjustments to the Conversion Rate as a result of the Fundamental Changeapplicable Exchange Rate;
(viii) that the Notes with respect to which a Fundamental Change Repurchase Notice has been delivered by a Holder may be converted exchanged only if the Holder validly withdraws the Fundamental Change Repurchase Notice in accordance with the terms of this Fourth Supplemental Indenture; and
(ix) the procedures that Holders must follow to require the Company to repurchase their Notes. No failure of the Company to give the foregoing notices and no defect therein shall limit the HoldersNoteholders’ repurchase rights or affect the validity of the proceedings for the repurchase of the Notes pursuant to this Section 15.02. At the Company’s request, given at least five days prior 9.02.
(c) A Fundamental Change Repurchase Notice may be withdrawn by means of a written notice of withdrawal delivered to the date Trustee and Paying Agent in accordance with the Fundamental Change Company Notice is at any time prior to be sent (or such shorter period as may be agreed the close of business on the Business Day prior to by the Trustee), the Trustee shall give such notice in the Company’s name and at the Company’s expense; provided, however, that, in all cases, the text of such Fundamental Change Company Notice shall be prepared by the Company.Repurchase Date, specifying:
(di) Notwithstanding the foregoing, no Notes may be repurchased by the Company on any date at the option of the Holders upon a Fundamental Change if the principal amount of the Notes has with respect to which such notice of withdrawal is being submitted;
(ii) if certificated Notes have been acceleratedissued, and the certificate numbers of the withdrawn Notes; and
(iii) the principal amount, if any, of such acceleration has Notes that remains subject to the original Fundamental Change Repurchase Notice, which portion must be in principal amounts of $1,000 or an integral multiple of $1,000; provided, however, that if the Notes are not been rescindedin certificated form, on the notice must comply with appropriate procedures of the Depositary.
(d) On or prior to such date 11:00 a.m. (except local time in The City of New York) on the case of an acceleration resulting from a Default second Business Day following the Fundamental Change Repurchase Date, the Company will deposit with the Trustee (or other Paying Agent appointed by the Company or if the Company is acting as its own Paying Agent, set aside, segregate and hold in trust in accordance with the Base Indenture as modified by this Fourth Supplemental Indenture) an amount of money sufficient to repurchase on the Fundamental Change Repurchase Date all of the Notes to be repurchased on such date at the Fundamental Change Repurchase Price. Subject to receipt of funds and/or Notes by the Trustee (or other Paying Agent appointed by the Company), payment for Notes surrendered for repurchase (and not withdrawn) prior to the close of business on the Fundamental Change Repurchase Date will be made promptly after the later of (x) the Fundamental Change Repurchase Date with respect to such Note (provided the Holder has satisfied the conditions to the payment of the Fundamental Change Repurchase Price with respect in Section 9.02), and (y) the time of book-entry transfer or the delivery of such Note to the Trustee (or other Paying Agent appointed by the Company) by the Holder thereof in the manner required by Section 9.02 by mailing checks for the amount payable to the Holders of such Notes)Notes entitled thereto as they shall appear in the Security Register, provided, however, that payments to the Depositary shall be made by wire transfer of immediately available funds to the account of the Depositary or its nominee. The Paying Agent or Tender AgentTrustee shall, as promptly after such payment and upon written demand by the case may beCompany, will promptly return to the respective Holders thereof Company any Physical Notes held by it during the acceleration of the Notes (except funds in the case of an acceleration resulting from a Default by the Company in the payment excess of the Fundamental Change Repurchase Price with respect Price.
(e) If the Trustee (or other Paying Agent appointed by the Company) holds money or securities sufficient to repurchase on the Fundamental Change Repurchase Date all the Notes or portions thereof that are to be purchased as of the second Business Day following the Fundamental Change Repurchase Date, then on and after the Fundamental Change Repurchase Date (i) such Notes will cease to be Outstanding, (ii) interest will cease to accrue on such Notes), and (iii) all other rights of the Holders of such Notes will terminate, whether or any instructions for not book-entry transfer of the Notes in compliance with has been made or the procedures of the Depositary shall be deemed to Notes have been cancelleddelivered to the Trustee or Paying Agent, and, upon such return or cancellation, as other than the case may be, right to receive the Fundamental Change Repurchase Notice with respect thereto Price upon delivery of the Notes.
(f) The provisions of Article Thirteen of the Base Indenture shall not be deemed applicable to have been withdrawnthe Notes.
Appears in 2 contracts
Samples: Fourth Supplemental Indenture (Prologis, L.P.), Fourth Supplemental Indenture (Amb Property Lp)
Repurchase at Option of Holders Upon a Fundamental Change. (a) If there shall occur a Fundamental Change occurs at any time prior to the Maturity Date, then each Holder of Securities shall have the right, at such Holder’s option, to require the Company to repurchase for cash cash, at the Fundamental Change Repurchase Price (as defined below), all of such Holder’s NotesSecurities, or any portion thereof that is equal to minimum denominations of $1,000 or an integral a multiple of $1,000 in excess thereofprincipal amount, on the a date (the “Fundamental Change Repurchase Date”) specified by the Company Company, that is not less than 20 calendar days or nor more than 35 calendar days following after the date of the Company Repurchase Notice related to such Fundamental Change Company Notice at a cash repurchase price equal to 100% of the principal amount thereofof the Securities being repurchased, plus accrued and unpaid interest thereon to, but excluding, the Fundamental Change Repurchase Date (the “Fundamental Change Repurchase Price”), unless subject to the satisfaction by the Holder of the requirements set forth in Section 3.04(c); provided that if such Fundamental Change Repurchase Date falls after a Regular Record Date but and on or prior to the corresponding Interest Payment Date, then the interest payable on the Fundamental Change Repurchase Date shall be paid on the Fundamental Change Repurchase Date to which such the Holders of record of the Securities on the applicable Regular Record Date relates, in which case instead of the Company shall instead pay Holders surrendering the full amount of accrued and unpaid interest (to, but excluding, Securities for repurchase on such Interest Payment Date) to Holders of record as of such Regular Record Datedate, and the Fundamental Change Repurchase Price shall will be equal to 100% of the principal amount of Notes the Securities to be repurchased pursuant to this Article 15; provided that repurchased.
(a) On or before the 15th calendar day after the occurrence of a Fundamental Change, the Company shall not be provide to the Trustee and to all Holders of record of the Securities on the date of the Fundamental Change at their addresses shown in the Register of the Registrar and to beneficial owners of the Securities to the extent required to repurchase, or to make an offer to repurchaseby applicable law, the Notes upon a Fundamental Change if a third party makes such an offer in the same manner, at the same time and otherwise in compliance with the requirements for an offer made by the Company Repurchase Notice as set forth in Section 3.06 with respect to such Fundamental Change and the resulting repurchase right. No failure of the Company to give the foregoing notices and no defect therein shall limit the repurchase rights of Holders of Securities or affect the validity of the proceedings for the repurchase of the Securities pursuant to this Section 15.02 and such third party purchases all Notes properly surrendered and not validly withdrawn under its offer in the same manner, at the same time and otherwise in compliance with the requirements for an offer made by the Company as set forth in this Section 15.023.04.
(b) Repurchases of Notes under this Section 15.02 shall For Securities to be made, repurchased at the option of the Holder, the Holder thereofmust deliver to the Paying Agent, upon:
prior to the close of business on the Fundamental Change Repurchase Date, (i) delivery a written notice to the Paying Agent or tender agent appointed to facilitate of the exercise of such repurchase (the “Tender Agent”) by a Holder of a duly completed notice right (the “Fundamental Change Repurchase Notice”) in the form set forth in Attachment 2 to on the Form reverse of Note attached hereto as Exhibit Athe Securities duly completed (if the Securities are certificated) (or, if the Notes Securities are Physical Notesevidenced by a Global Security, or in compliance such Holder must comply with the Depositary’s procedures for surrendering interests in Global Notes, if the Notes are Global Notes, in each case on or before the close of business on the Business Day immediately preceding the Fundamental Change Repurchase Date; and
applicable Depositary procedures) together with (ii) such Securities duly endorsed for transfer (if the Securities are certificated) or book-entry transfer of such Securities (if the Securities are evidenced by a Global Security). The delivery of the Notes, if the Notes are Physical Notes, such Securities to the Paying Agent with, or Tender Agent, as the case may be, at any time after delivery of of, the Fundamental Change Repurchase Notice (together with all necessary endorsements for transferendorsements) at the Corporate Trust Office office of the Paying Agent or the principal office of the Tender Agent located in the United States of America as notified by the Tender Agent to Holders and the Trustee, as applicable, or book-entry transfer of the Notes, if the Notes are Global Notes, in compliance with the procedures of the Depositary, in each case such delivery being shall be a condition to receipt payment by the Company to the Holder of the Fundamental Change Repurchase Price therefor. The ; provided that such Fundamental Change Repurchase Notice Price shall be so paid pursuant to this Section 3.04 only if the Securities so delivered to the Paying Agent shall conform in respect all respects to the description thereof in the Fundamental Change Repurchase Notice. All questions as to the validity, eligibility (including time of receipt) and acceptance of any Notes to Securities for repurchase shall be repurchased determined by the Company, whose determination shall state:be final and binding absent manifest error.
(ic) in The Company shall repurchase from the case of Physical NotesHolder thereof, the certificate numbers of the Notes pursuant to be delivered for repurchase;
(ii) the this Section 3.04, a portion of a Security if the principal amount of Notes to be repurchased, which must be such portion is $1,000 or an integral multiple of $1,000 in excess thereof; and. Provisions of this Indenture that apply to the repurchase of all of a Security also apply to the repurchase of such portion of such Security.
(iiid) that the Notes are to be repurchased by the Company pursuant to the applicable provisions of the Notes and this Indenture; provided, however, that if the Notes are Global Notes, the Fundamental Change Repurchase Notice must comply with appropriate Depositary procedures. Notwithstanding anything herein to the contrary, any Holder delivering to the Paying Agent or Tender Agent, as the case may be, the Fundamental Change Repurchase Notice contemplated by this Section 15.02 shall have the right to withdraw, in whole or in part, such Fundamental Change Repurchase Notice at any time prior to the close of business on the Business Day immediately preceding the Fundamental Change Repurchase Date by delivery of a written notice of withdrawal to the Paying Agent or Tender Agent, as the case may be, in accordance with Section 15.03, or in accordance with the customary procedures of the Depository with respect to Global Notes. The Paying Agent or Tender Agent, as the case may be, shall promptly notify the Company of the receipt by it of any Fundamental Change Repurchase Notice or written notice of withdrawal thereof.
(c) On or before . Any repurchase by the 20th Business Day after Company contemplated pursuant to the occurrence provisions of this Section 3.04 shall be consummated by the delivery of the effective date consideration to be received by the Holder promptly following the later of a Fundamental Change, the Company shall provide to all Holders of Notes and the Trustee, the Conversion Agent (in the case of a Conversion Agent other than the Trustee) and the Paying Agent (in the case of a Paying Agent other than the Trustee) a notice (the “Fundamental Change Company Notice”) of the occurrence of the effective date of the Fundamental Change and of the repurchase right at the option of the Holders arising as a result thereof. In the case of Physical Notes, such notice shall be by first class mail or, in the case of Global Notes, such notice shall be delivered in accordance with the applicable procedures of the Depositary. Simultaneously with providing such notice, the Company shall publish a notice containing the information set forth in the Fundamental Change Company Notice on the Company’s website or through such other public medium as the Company may use at that time. Each Fundamental Change Company Notice shall specify:
(i) the events causing the Fundamental Change;
(ii) the effective date of the Fundamental Change;
(iii) the last date on which a Holder may exercise the repurchase right pursuant to this Article 15;
(ivx) the Fundamental Change Repurchase Price;
Date and (vy) the Fundamental Change Repurchase Date;
(vi) the name and address time of the Paying Agent or Tender Agent, as the case may be, and the Conversion Agent, if applicable;
(vii) if applicable, the Conversion Rate and any adjustments to the Conversion Rate as a result of the Fundamental Change;
(viii) that the Notes with respect to which a Fundamental Change Repurchase Notice has been delivered by a Holder may be converted only if the Holder validly withdraws the Fundamental Change Repurchase Notice in accordance with the terms of this Indenture; and
(ix) the procedures that Holders must follow to require the Company to repurchase their Notes. No failure of the Company to give the foregoing notices and no defect therein shall limit the Holders’ repurchase rights or affect the validity of the proceedings for the repurchase of the Notes pursuant to this Section 15.02. At the Company’s request, given at least five days prior to the date the Fundamental Change Company Notice is to be sent (or such shorter period as may be agreed to by the Trustee), the Trustee shall give such notice in the Company’s name and at the Company’s expense; provided, however, that, in all cases, the text of such Fundamental Change Company Notice shall be prepared by the Company.
(d) Notwithstanding the foregoing, no Notes may be repurchased by the Company on any date at the option of the Holders upon a Fundamental Change if the principal amount of the Notes has been accelerated, and such acceleration has not been rescinded, on or prior to such date (except in the case of an acceleration resulting from a Default by the Company in the payment of the Fundamental Change Repurchase Price with respect to such Notes). The Paying Agent or Tender Agent, as the case may be, will promptly return to the respective Holders thereof any Physical Notes held by it during the acceleration of the Notes (except in the case of an acceleration resulting from a Default by the Company in the payment of the Fundamental Change Repurchase Price with respect to such Notes), or any instructions for book-entry transfer or delivery of the Notes in compliance with the procedures of the Depositary shall be deemed to have been cancelled, and, upon such return or cancellation, as the case may be, the Fundamental Change Repurchase Notice with respect thereto shall be deemed to have been withdrawnSecurities.
Appears in 2 contracts
Samples: Indenture (Viavi Solutions Inc.), Indenture (Viavi Solutions Inc.)
Repurchase at Option of Holders Upon a Fundamental Change. (a) If a Fundamental Change occurs at any time prior to the Maturity Date, each Holder shall have the right, at such Holder’s option, to require the Company to repurchase for cash all of such Holder’s Notes, or any portion of the principal amount thereof properly surrendered and not validly withdrawn pursuant to Section 15.03 that is equal to minimum denominations of $1,000 or an integral a multiple of $1,000 in excess thereof1,000, on the date (the “Fundamental Change Repurchase Date”) specified by the Company that is not less than 20 calendar days or more than 35 calendar days Business Days following the date of the Fundamental Change Company Notice (provided that the Fundamental Change Repurchase Date shall be subject to postponement in order to allow the Company to comply with applicable law as a result of changes to such applicable law occurring after the date hereof) at a repurchase price equal to 100% of the principal amount thereof, plus accrued and unpaid interest thereon to, but excluding, the Fundamental Change Repurchase Date (the “Fundamental Change Repurchase Price”), unless the Fundamental Change Repurchase Date falls after a Regular Record Date but on or prior to the Interest Payment Date to which such Regular Record Date relates, in which case the Company shall instead pay the full amount of accrued and unpaid interest (to, but excluding, such Interest Payment Date) to Holders the Holder of record as of such Regular Record Date, and the Fundamental Change Repurchase Price shall be equal to 100% of the principal amount of Notes to be repurchased pursuant to this Article 15; provided that . Any Notes so repurchased by the Company shall not be required to repurchase, or to make an offer to repurchase, the Notes upon a Fundamental Change if a third party makes such an offer paid for in the same manner, at the same time and otherwise in compliance with the requirements for an offer made by the Company as set forth in this Section 15.02 and such third party purchases all Notes properly surrendered and not validly withdrawn under its offer in the same manner, at the same time and otherwise in compliance with the requirements for an offer made by the Company as set forth in this Section 15.02cash.
(b) Repurchases of Notes under this Section 15.02 shall be made, at the option of the Holder thereof, upon:
(i) delivery to the Paying Agent or tender paying agent appointed to facilitate the repurchase (the “Tender Agent”) by a Holder of a duly completed written notice (the “Fundamental Change Repurchase Notice”) in the form set forth in Attachment 2 to the Form of Note attached hereto as Exhibit A, if the Notes are Physical Notes, or in compliance with the Depositary’s procedures for surrendering interests in Global Notes, if the Notes are Global Notes, in each case on or before the close of business on the Business Day immediately preceding the Fundamental Change Repurchase Date; and
(ii) delivery of the Notes, if the Notes are Physical Notes, to the Paying Agent or Tender Agent, as the case may be, paying agent at any time after delivery of the Fundamental Change Repurchase Notice (together with all necessary endorsements for transfer) at the Corporate Trust Office of the Paying Agent or the principal office of the Tender Agent located in the United States of America as notified by the Tender Agent to Holders and the Trustee, as applicablepaying agent, or book-entry transfer of the Notes, if the Notes are Global Notes, in compliance with the procedures of the Depositary, in each case such delivery being a condition to receipt by the Holder of the Fundamental Change Repurchase Price therefor. The Fundamental Change Repurchase Notice in respect of any Notes to be repurchased shall state:
(i) in the case of Physical Notes, the certificate numbers of the Notes to be delivered for repurchase;
(ii) the portion of the principal amount of Notes to be repurchased, which must be $1,000 or an integral a multiple thereof; and
(iii) that the Notes are to be repurchased by the Company pursuant to the applicable provisions of the Notes and this Indenture; provided, however, that if the Notes are Global Notes, the Fundamental Change Repurchase Notice must comply with appropriate Depositary procedures. Notwithstanding anything herein to the contrary, any Holder delivering to the Paying Agent or Tender Agent, as the case may be, paying agent the Fundamental Change Repurchase Notice contemplated by this Section 15.02 shall have the right to withdraw, in whole or in part, such Fundamental Change Repurchase Notice at any time prior to the close of business on the Business Day immediately preceding the Fundamental Change Repurchase Date by delivery of a written notice of withdrawal to the Paying Agent or Tender Agent, as the case may be, paying agent in accordance with Section 15.03, or in accordance with the customary procedures of the Depository with respect to Global Notes. The Paying Agent or Tender Agent, as the case may be, paying agent shall promptly notify the Company of the receipt by it of any Fundamental Change Repurchase Notice or written notice of withdrawal thereof.
(c) On or before the 20th Business Day calendar day after the occurrence of the effective date of a Fundamental Change, the Company shall provide to all Holders of Notes and the Trustee, Trustee and the Conversion Agent paying agent (in the case of a Conversion Agent other than the Trustee) and the Paying Agent (in the case of a Paying Agent paying agent other than the Trustee) a written notice (the “Fundamental Change Company Notice”) of the occurrence of the effective date of the Fundamental Change and of the resulting repurchase right at the option of the Holders arising as a result thereof. In the case of Physical Notes, such notice shall be by first class mail or, in the case of Global Notes, such notice shall be delivered in accordance with the applicable procedures of the Depositary. Simultaneously with providing such notice, the Company shall publish a notice containing the information set forth in the Fundamental Change Company Notice on the Company’s website or through such other public medium as the Company may use at that time. Each Fundamental Change Company Notice shall specify:
(i) the events causing the Fundamental Change;
(ii) the effective date of the Fundamental Change;
(iii) the last date on which a Holder may exercise the repurchase right pursuant to this Article 15;
(iv) the Fundamental Change Repurchase Price;
(v) the Fundamental Change Repurchase Date;
(vi) the name and address of the Paying Agent or Tender Agent, as the case may be, paying agent and the Conversion Agent, if applicable;
(vii) if applicable, the Conversion Rate and any adjustments to the Conversion Rate as a result of the such Fundamental Change (or related Make-Whole Fundamental Change);
(viii) that the Notes with respect to which a Fundamental Change Repurchase Notice has been delivered by a Holder may be converted only if the Holder validly withdraws the Fundamental Change Repurchase Notice in accordance with the terms of this Indenture; and
(ix) the procedures that Holders must follow to require the Company to repurchase their Notes. No failure of the Company to give the foregoing notices and no defect therein shall limit the Holders’ repurchase rights or affect the validity of the proceedings for the repurchase of the Notes pursuant to this Section 15.02. At the Company’s request, given at least five days prior to the date the Fundamental Change Company Notice is to be sent (or such shorter period as may be agreed to by the Trustee), the Trustee shall give such notice in the Company’s name and at the Company’s expense; provided, however, that, in all cases, the text of such Fundamental Change Company Notice shall be prepared by the Company.
(d) Notwithstanding the foregoing, no Notes may be repurchased by the Company on any date at the option of the Holders upon a Fundamental Change if the principal amount of the Notes has been accelerated, and such acceleration has not been rescinded, on or prior to such date (except in the case of an acceleration resulting from a Default by the Company in the payment of the Fundamental Change Repurchase Price with respect to such Notes). The Paying Agent or Tender Agent, as the case may be, paying agent will promptly return to the respective Holders thereof any Physical Notes held by it during the acceleration of the Notes (except in the case of an acceleration resulting from a Default by the Company in the payment of the Fundamental Change Repurchase Price with respect to such Notes), or any instructions for book-entry transfer of the Notes in compliance with the procedures of the Depositary shall be deemed to have been cancelledcanceled, and, upon such return or cancellation, as the case may be, the Fundamental Change Repurchase Notice with respect thereto shall be deemed to have been withdrawn.
(e) The Company shall not be required to repurchase or make an offer to repurchase Notes upon the occurrence of a Fundamental Change otherwise required under this Section 15.02 if a third party makes such an offer to purchase Notes in the same manner, at the same time and otherwise in compliance with the requirements for an offer made by the Company as set forth in this Indenture and such third party purchases all Notes properly surrendered and not validly withdrawn under such offer to purchase.
Appears in 2 contracts
Samples: Indenture (Neogenomics Inc), Indenture (Neogenomics Inc)
Repurchase at Option of Holders Upon a Fundamental Change. (a) If Subject to Section 15.02(f), if a Fundamental Change occurs at any time prior to the Maturity Datetime, each Holder shall have the right, at such Holder’s option, to require the Company to repurchase for cash all of such Holder’s Notes, or any portion of the principal amount thereof properly surrendered and not validly withdrawn pursuant to Section 15.03 that is equal to a minimum denominations of $1,000 or an integral multiple of $1,000 in excess thereof1,000, on the date (the “Fundamental Change Repurchase Date”) specified by the Company that is not less than 20 calendar days Business Days or more than 35 calendar days Business Days following the date of the Fundamental Change Company Notice at a repurchase price equal to 100% of the principal amount thereof, plus accrued and unpaid interest thereon to, but excluding, the Fundamental Change Repurchase Date (the “Fundamental Change Repurchase Price”), unless the Fundamental Change Repurchase Date falls after a Regular Record Date but on or prior to the Interest Payment Date to which such Regular Record Date relates, in which case the Company shall instead pay the full amount of accrued and unpaid interest (to, but excluding, such Interest Payment Date) to Holders of record as of the close of business on such Regular Record Date on, or at the Company’s election, before such Interest Payment Date, and the Fundamental Change Repurchase Price shall be equal to 100% of the principal amount of Notes to be repurchased pursuant to this Article Article 15; provided that the Company shall not be required to repurchase, or to make an offer to repurchase, the Notes upon a Fundamental Change if a third party makes such an offer in the same manner, at the same time and otherwise in compliance with the requirements for an offer made by the Company as set forth in this Section 15.02 and such third party purchases all Notes properly surrendered and not validly withdrawn under its offer in the same manner, at the same time and otherwise in compliance with the requirements for an offer made by the Company as set forth in this Section 15.02.
(b) Repurchases of Notes under this Section Section 15.02 shall be made, at the option of the Holder thereof, upon:
(i) delivery to the Paying Agent or tender agent appointed to facilitate the repurchase (the “Tender Agent”) by a Holder of a duly completed notice (the “Fundamental Change Repurchase Notice”) in the form set forth in Attachment 2 to the Form of Note attached hereto as Exhibit A, if the Notes are Physical Notes, or in compliance with the Depositary’s procedures for surrendering interests in Global Notes, if the Notes are Global Notes, in each case case, on or before the close of business on the Business Day immediately preceding the Fundamental Change Repurchase Date; and
(ii) delivery of the Notes, if the Notes are Physical Notes, to the Paying Agent or Tender Agent, as the case may be, at any time after delivery of the Fundamental Change Repurchase Notice (together with all necessary endorsements for transfer) at the Corporate Trust Office of the Paying Agent or the principal office of the Tender Agent located in the United States of America as notified by the Tender Agent to Holders and the Trustee, as applicableAgent, or book-entry transfer of the Notes, if the Notes are Global Notes, in compliance with the procedures of the Depositary, in each case case, such delivery or transfer being a condition to receipt by the Holder of the Fundamental Change Repurchase Price therefor. The Fundamental Change Repurchase Notice in respect of any Physical Notes to be repurchased shall state:
(i) in the case of Physical Notes, the certificate numbers of the Notes to be delivered for repurchase;
(ii) the portion of the principal amount of Notes to be repurchased, which must be $1,000 or an integral multiple thereof; and
(iii) that the Notes are to be repurchased by the Company pursuant to the applicable provisions of the Notes and this Indenture; provided, however, that if . If the Notes are Global Notes, to exercise the Fundamental Change Repurchase Notice repurchase right, Holders must comply surrender their Notes in accordance with appropriate applicable Depositary procedures. Notwithstanding anything herein to the contrary, any Holder delivering to the Paying Agent or Tender Agent, as the case may be, the Fundamental Change Repurchase Notice contemplated by this Section Section 15.02 shall have the right to withdraw, in whole or in part, such Fundamental Change Repurchase Notice at any time prior to the close of business on the Business Day immediately preceding the Fundamental Change Repurchase Date by delivery of a written notice of withdrawal to the Paying Agent or Tender Agent, as the case may be, in accordance with Section 15.03Section 15.03 in the case of Physical Notes, or in accordance with through the customary applicable procedures of the Depository with respect to Depositary, in the case of Global Notes. The Paying Agent or Tender Agent, as the case may be, shall promptly notify the Company of the receipt by it of any Fundamental Change Repurchase Notice or written notice of withdrawal thereof.
(c) On or before the 20th Business Day after the occurrence of the effective date of a Fundamental Change, the Company shall provide to all Holders of Notes and the Trustee, the Conversion Agent (in the case of a Conversion Agent other than the Trustee) Trustee and the Paying Agent (in the case of a Paying Agent other than the Trustee) a notice (the “Fundamental Change Company Notice”) of the occurrence of the effective date of the Fundamental Change and of the resulting repurchase right at the option of the Holders arising as a result thereof. In the case of Physical Notes, such notice shall be by first class mail or, in the case of Global Notes, such notice shall be delivered in accordance with the applicable procedures of the Depositary. Simultaneously with providing such notice, the Company shall publish a notice containing the such information set forth in the Fundamental Change Company Notice on the Company’s website or through such other public medium as the Company may use at that time. Each Fundamental Change Company Notice shall specify:
(i) the events causing the Fundamental Change;
(ii) the effective date of the Fundamental Change;
(iii) the last date on which a Holder may exercise the repurchase right pursuant to this Article Article 15;
(iv) the Fundamental Change Repurchase Price;
(v) the Fundamental Change Repurchase Date;
(vi) the name and address of the Paying Agent or Tender Agent, as the case may be, and the Conversion Agent, if applicable;
(vii) if applicable, the Conversion Rate and any adjustments to the Conversion Rate as a result of the Fundamental Change (or related Make-Whole Fundamental Change);
(viii) that the Notes with respect to which a Fundamental Change Repurchase Notice has been delivered by a Holder may be converted only if the Holder validly withdraws the Fundamental Change Repurchase Notice in accordance with the terms of this Indenture; and
(ix) the procedures that Holders must follow to require the Company to repurchase their Notes. No failure of the Company to give the foregoing notices and no defect therein shall limit the Holders’ repurchase rights or affect the validity of the proceedings for the repurchase of the Notes pursuant to this Section Section 15.02. At the Company’s written request, given at least five days prior to the date the Fundamental Change Company Notice two (2) Business Days before such notice is to be sent (or such shorter period as may shall be agreed acceptable to by the Trustee), ) the Trustee shall give such notice in the Company’s name and at the Company’s expense; provided, however, that, in all cases, the text of such Fundamental Change Company Notice shall be prepared by the Company.
(d) Notwithstanding anything to the contrary in this Article 15, the Company shall not be required to repurchase, or to make an offer to repurchase, the Notes upon a Fundamental Change if a third party makes such an offer in the same manner, at the same time and otherwise in compliance with the requirements for an offer made by the Company as set forth in this Article 15 and such third party purchases all Notes properly surrendered and not validly withdrawn under its offer in the same manner, at the same time and otherwise in compliance with the requirements for an offer made by the Company as set forth above.
(e) Notwithstanding the foregoing, no Notes may be repurchased by the Company on any date at the option of the Holders upon a Fundamental Change if the principal amount of the Notes has been accelerated, and such acceleration has not been rescinded, on or prior to such date (except in the case of an acceleration resulting from a Default by the Company in the payment of the Fundamental Change Repurchase Price with respect to such Notes). The Paying Agent or Tender Agent, as the case may be, will promptly return to the respective Holders thereof any Physical Notes held by it during the acceleration of the Notes (except in the case of an acceleration resulting from a Default by the Company in the payment of the Fundamental Change Repurchase Price with respect to such Notes), or any instructions for book-entry transfer of the Notes in compliance with the applicable procedures of the Depositary shall be deemed to have been cancelled, and, upon such return or cancellation, as the case may be, the Fundamental Change Repurchase Notice with respect thereto shall be deemed to have been withdrawn.
(f) Notwithstanding anything to the contrary in this Section 15.02, the Company shall not be required to send a Fundamental Change Company Notice, or offer to repurchase or repurchase any Notes, as set forth in this Article 15, in connection with a Fundamental Change occurring pursuant to clause (b)(A) or (B) of the definition thereof, if: (i) such Fundamental Change constitutes a Share Exchange Event whose Reference Property consists entirely of cash in U.S. dollars; (ii) immediately after such Fundamental Change, the Notes become convertible (pursuant to Section 14.07 and, if applicable, Section 14.03) into consideration that consists solely of U.S. dollars in an amount per $1,000 principal amount of Notes that equals or exceeds the Fundamental Change Repurchase Price per $1,000 principal amount of Notes (calculated assuming that the same includes the maximum amount of accrued but unpaid interest payable as part of the Fundamental Change Repurchase Price for such Fundamental Change); and (iii) the Company timely sends the notice relating to such Fundamental Change required pursuant to Section 14.01(b)(iii). Any Fundamental Change with respect to which, in accordance with the provisions described in this Section 15.02(f), the Company does not offer to repurchase any Notes is referred to as herein as an “Exempted Fundamental Change.”
Appears in 2 contracts
Repurchase at Option of Holders Upon a Fundamental Change. (a) If a Fundamental Change occurs at any time prior to the Maturity Datetime, each Holder shall have the right, at such Holder’s option, to require the Company to repurchase for cash all of such Holder’s Notes, or any portion thereof that is equal to minimum denominations of $1,000 or an integral a multiple of $1,000 in excess thereof, on the date (the “Fundamental Change Repurchase Date”) specified by the Company that is not less than 20 calendar days or more than 35 calendar days following the date of the Fundamental Change Company Notice at a repurchase price equal to 100% of the principal amount thereof, plus accrued and unpaid interest thereon to, but excluding, the Fundamental Change Repurchase Date (the “Fundamental Change Repurchase Price”), unless the Fundamental Change Repurchase Date falls after a Regular Record Date but on or prior to the Interest Payment Date to which such Regular Record Date relates, in which case the Company shall instead pay the full amount of accrued and unpaid interest (to, but excluding, such Interest Payment Date) to Holders of record as of such Regular Record Date, and the Fundamental Change Repurchase Price shall be equal to 100% of the principal amount of Notes to be repurchased pursuant to this Article 15; provided that the Company shall not be required to repurchase, or to make an offer to repurchase, the Notes upon a Fundamental Change if a third party makes such an offer in the same manner, at the same time and otherwise in compliance with the requirements for an offer made by the Company as set forth in this Section 15.02 and such third party purchases all Notes properly surrendered and not validly withdrawn under its offer in the same manner, at the same time and otherwise in compliance with the requirements for an offer made by the Company as set forth in this Section 15.02.
(b) Repurchases of Notes under this Section 15.02 shall be made, at the option of the Holder thereof, upon:
(i) delivery to the Paying Agent or tender agent appointed to facilitate the repurchase (the “Tender Agent”) by a Holder of a duly completed notice (the “Fundamental Change Repurchase Notice”) in the form set forth in Attachment 2 to the Form of Note attached hereto as Exhibit A, if the Notes are Physical Notes, or in compliance with the Depositary’s procedures for surrendering interests in Global Notes, if the Notes are Global Notes, in each case on or before the close of business on the Business Day immediately preceding the Fundamental Change Repurchase Date; and
(ii) delivery of the Notes, if the Notes are Physical Notes, to the Paying Agent or Tender Agent, as the case may be, at any time after delivery of the Fundamental Change Repurchase Notice (together with all necessary endorsements for transfer) at the Corporate Trust Office of the Paying Agent or the principal office of the Tender Agent located in the United States of America as notified by the Tender Agent to Holders and the Trustee, as applicableAgent, or book-entry transfer of the Notes, if the Notes are Global Notes, in compliance with the procedures of the Depositary, in each case such delivery being a condition to receipt by the Holder of the Fundamental Change Repurchase Price therefor. The Fundamental Change Repurchase Notice in respect of any Notes to be repurchased shall state:
(i) in the case of Physical Notes, the certificate numbers of the Notes to be delivered for repurchase;
(ii) the portion of the principal amount of Notes to be repurchased, which must be $1,000 or an integral a multiple thereof; and
(iii) that the Notes are to be repurchased by the Company pursuant to the applicable provisions of the Notes and this Indenture; provided, however, that if the Notes are Global Notes, the Fundamental Change Repurchase Notice must comply with appropriate Depositary procedures. Notwithstanding anything herein to the contrary, any Holder delivering to the Paying Agent or Tender Agent, as the case may be, the Fundamental Change Repurchase Notice contemplated by this Section 15.02 shall have the right to withdraw, in whole or in part, such Fundamental Change Repurchase Notice at any time prior to the close of business on the Business Day immediately preceding the Fundamental Change Repurchase Date by delivery of a written notice of withdrawal to the Paying Agent or Tender Agent, as the case may be, in accordance with Section 15.03, or in accordance with the customary procedures of the Depository with respect to Global Notes. The Paying Agent or Tender Agent, as the case may be, shall promptly notify the Company of the receipt by it of any Fundamental Change Repurchase Notice or written notice of withdrawal thereof.
(c) On or before the 20th Business Day calendar day after the occurrence of the effective date of a Fundamental Change, the Company shall provide to all Holders of Notes and the Trustee, the Conversion Agent (in the case of a Conversion Agent other than the Trustee) Trustee and the Paying Agent (in the case of a Paying Agent other than the Trustee) a notice (the “Fundamental Change Company Notice”) of the occurrence of the effective date of the Fundamental Change and of the repurchase right at the option of the Holders arising as a result thereof. In the case of Physical Notes, such notice shall be by first class mail or, in the case of Global Notes, such notice shall be delivered in accordance with the applicable procedures of the Depositary. Simultaneously with providing such notice, the Company shall publish a notice containing the information set forth in the Fundamental Change Company Notice in a newspaper of general circulation in The City of New York or publish such information on the Company’s website or through such other public medium as the Company may use at that time. Each Fundamental Change Company Notice shall specify:
(i) the events causing the Fundamental Change;
(ii) the effective date of the Fundamental Change;
(iii) the last date on which a Holder may exercise the repurchase right pursuant to this Article 15;
(iv) the Fundamental Change Repurchase Price;
(v) the Fundamental Change Repurchase Date;
(vi) the name and address of the Paying Agent or Tender Agent, as the case may be, and the Conversion Agent, if applicable;
(vii) if applicable, the Conversion Rate and any adjustments to the Conversion Rate as a result of the Fundamental ChangeRate;
(viii) that the Notes with respect to which a Fundamental Change Repurchase Notice has been delivered by a Holder may be converted only if the Holder validly withdraws the Fundamental Change Repurchase Notice in accordance with the terms of this Indenture; and
(ix) the procedures that Holders must follow to require the Company to repurchase their Notes. No failure of the Company to give the foregoing notices and no defect therein shall limit the Holders’ repurchase rights or affect the validity of the proceedings for the repurchase of the Notes pursuant to this Section 15.02. At the Company’s request, given at least five days prior to the date the Fundamental Change Company Notice is to be sent (or such shorter period as may be agreed to by the Trustee), the Trustee shall give such notice in the Company’s name and at the Company’s expense; provided, however, that, in all cases, the text of such Fundamental Change Company Notice shall be prepared by the Company.
(d) Notwithstanding the foregoing, no Notes may be repurchased by the Company on any date at the option of the Holders upon a Fundamental Change if the principal amount of the Notes has been accelerated, and such acceleration has not been rescinded, on or prior to such date (except in the case of an acceleration resulting from a Default by the Company in the payment of the Fundamental Change Repurchase Price with respect to such Notes). The Paying Agent or Tender Agent, as the case may be, will promptly return to the respective Holders thereof any Physical Notes held by it during the acceleration of the Notes (except in the case of an acceleration resulting from a Default by the Company in the payment of the Fundamental Change Repurchase Price with respect to such Notes), or any instructions for book-entry transfer of the Notes in compliance with the procedures of the Depositary shall be deemed to have been cancelled, and, upon such return or cancellation, as the case may be, the Fundamental Change Repurchase Notice with respect thereto shall be deemed to have been withdrawn.
Appears in 2 contracts
Samples: Indenture (Pandora Media, Inc.), Indenture (Pandora Media, Inc.)
Repurchase at Option of Holders Upon a Fundamental Change. (a) If a Fundamental Change occurs at any time prior to the Maturity Datetime, each Holder shall have the right, at such Holder’s option, to require the Company to repurchase for cash all of such Holder’s Notes, or any portion of the principal thereof that is equal to minimum denominations of $1,000 or an integral multiple of $1,000 in excess thereof1,000, on the date (the “Fundamental Change Repurchase Date”) specified by the Company that is not less than 20 calendar days Business Days or more than 35 calendar days 45 Business Days following the date of the Fundamental Change Company Notice at a repurchase price equal to 100% of the principal amount thereof, plus accrued and unpaid interest thereon to, but excluding, the Fundamental Change Repurchase Date (the “Fundamental Change Repurchase Price”), unless the Fundamental Change Repurchase Date falls after a Regular Record Date but on or prior to the Interest Payment Date to which such Regular Record Date relates, in which case the Company shall instead pay the full amount of accrued and unpaid interest (to, but excluding, such Interest Payment Date) to Holders of record as of such Regular Record Date, and the Fundamental Change Repurchase Price shall be equal to 100% of the principal amount of Notes to be repurchased pursuant to this Article 15; provided that the Company shall not be required to repurchase, or to make an offer to repurchase, the Notes upon a Fundamental Change if a third party makes such an offer in the same manner, at the same time and otherwise in compliance with the requirements for an offer made by the Company as set forth in this Section 15.02 and such third party purchases all Notes properly surrendered and not validly withdrawn under its offer in the same manner, at the same time and otherwise in compliance with the requirements for an offer made by the Company as set forth in this Section 15.0212.
(b) Repurchases of Notes under this Section 15.02 12.01 shall be made, at the option of the Holder thereof, upon:
(i) delivery to the Paying Agent or tender agent appointed to facilitate the repurchase (the “Tender Agent”) by a Holder of a duly completed notice (the “Fundamental Change Repurchase Notice”) in the form set forth in Attachment 2 to the Form of Note attached hereto as Exhibit A, if the Notes are Physical Notes, or in compliance with the Depositary’s procedures for surrendering interests in Global Notes, Applicable Procedures if the Notes are Global Notes, in each case on or before the close of business 5:00 p.m., New York City time, on the Business Day immediately preceding the Fundamental Change Repurchase Date; and
(ii) delivery of the Notes, if the Notes are Physical Notes, to the Paying Agent or Tender Agent, as the case may be, at any time after delivery of the Fundamental Change Repurchase Notice (together with all necessary endorsements for transfer) at the Corporate Trust Office of the Paying Agent or the principal office of the Tender Agent located in the United States of America as notified by the Tender Agent to Holders and the Trustee, as applicableAgent, or book-entry transfer of the Notes, if the Notes are Global Notes, in compliance with the procedures of the DepositaryApplicable Procedures, in each case such delivery being a condition to receipt by the Holder of the Fundamental Change Repurchase Price therefor. The Fundamental Change Repurchase Notice in respect of any Notes to be repurchased shall state:
(i) in the case of Physical Notes, the certificate numbers of the Notes to be delivered for repurchase;
(ii) the portion of the principal amount of Notes to be repurchased, which must be $1,000 or an integral multiple thereof; and
(iii) that the Notes are to be repurchased by the Company pursuant to the applicable provisions of the Notes and this the Indenture; provided, however, that if the Notes are Global Notes, the Fundamental Change Repurchase Notice must comply with appropriate Depositary proceduresthe Applicable Procedures. Notwithstanding anything herein to the contrary, any Holder delivering to the Paying Agent or Tender Agent, as the case may be, the Fundamental Change Repurchase Notice contemplated by this Section 15.02 12.01 shall have the right to withdraw, in whole or in part, such Fundamental Change Repurchase Notice at any time prior to the close of business 5:00 p.m., New York City time, on the Business Day immediately preceding the Fundamental Change Repurchase Date by delivery of a written notice of withdrawal to the Paying Agent or Tender Agent, as the case may be, in accordance with Section 15.03, or in accordance with the customary procedures of the Depository with respect to Global Notes12.02. The Paying Agent or Tender Agent, as the case may be, shall promptly notify the Company of the receipt by it of any Fundamental Change Repurchase Notice or written notice of withdrawal thereof.
(c) On or before the 20th Business Day calendar day after the occurrence of the effective date of a Fundamental Change, the Company shall provide to all Holders of Notes and the Trustee, the Conversion Agent (in the case of a Conversion Agent other than the Trustee) Trustee and the Paying Agent (in the case of a Paying Agent other than the Trustee) a notice (the “Fundamental Change Company Notice”) of the occurrence of the effective date of the Fundamental Change and of the repurchase right at the option of the Holders arising as a result thereof. In the case of Physical Notes, such Such notice shall be by first class mail or, in the case of Global Notes, such notice shall be delivered in accordance with the applicable procedures of the DepositaryApplicable Procedures. Simultaneously with providing such notice, the Company shall publish a notice containing the information set forth in the Fundamental Change Company Notice in a newspaper of general circulation in The City of New York or publish such information on the Company’s website or through such other public medium as the Company may use at that time. Each Fundamental Change Company Notice shall specify:
(i) the events causing the Fundamental Change;
(ii) the effective date of the Fundamental Change;
(iii) the last date on which a Holder may exercise the repurchase right pursuant to this Article 1512;
(iv) the Fundamental Change Repurchase Price;
(v) the Fundamental Change Repurchase Date;
(vi) the name and address of the Paying Agent or Tender Agent, as the case may be, and the Conversion Agent, if applicable;
(vii) if applicable, the Conversion Rate and any adjustments to the Conversion Rate as a result of the Fundamental ChangeRate;
(viii) if applicable, that the Notes with respect to which a Fundamental Change Repurchase Notice has been delivered by a Holder may be converted only if the Holder validly withdraws the Fundamental Change Repurchase Notice in accordance with the terms of this the Indenture; and
(ix) the procedures that Holders must follow to require the Company to repurchase their Notes. No failure of the Company to give the foregoing notices and no defect therein shall limit the Holders’ repurchase rights or affect the validity of the proceedings for the repurchase of the Notes pursuant to this Section 15.0212.01. At the Company’s request, given at least five days prior to the date the Fundamental Change Company Notice is to be sent (or such shorter period as may be agreed to by the Trustee), the Trustee shall give such notice in the Company’s name and at the Company’s expense; provided, however, that, in all cases, the text of such Fundamental Change Company Notice shall be prepared by the Company.
(d) Notwithstanding the foregoing, no Notes may be repurchased by the Company on any date at the option of the Holders upon a Fundamental Change if the principal amount of the Notes has been accelerated, and such acceleration has not been rescinded, on or prior to such date (except in the case of an acceleration resulting from a Default by the Company in the payment of the Fundamental Change Repurchase Price with respect to such Notes). The Paying Agent or Tender Agent, as the case may be, will shall promptly return to the respective Holders thereof any Physical Notes held by it during the acceleration of the Notes (except in the case of an acceleration resulting from a Default by the Company in the payment of the Fundamental Change Repurchase Price with respect to such Notes), or any instructions for book-entry transfer of the Notes in compliance with the procedures of the Depositary Applicable Procedures shall be deemed to have been cancelled, and, upon such return or cancellation, as the case may be, the Fundamental Change Repurchase Notice with respect thereto shall be deemed to have been withdrawn.
(e) Notwithstanding the foregoing, the Company shall not be required to repurchase any Notes in respect of which the Fundamental Change repurchase right has been exercised pursuant to this Section 12.01 and in respect of which the relevant Fundamental Change Repurchase Notice has not been withdrawn if a third party purchases such Notes on the Fundamental Change Repurchase Date in the manner and otherwise in compliance with the requirements set forth herein applicable to the repurchase of Notes upon a Fundamental Change.
Appears in 2 contracts
Samples: Second Supplemental Indenture (Molycorp, Inc.), First Supplemental Indenture (Molycorp, Inc.)
Repurchase at Option of Holders Upon a Fundamental Change. (a) If there shall occur a Fundamental Change occurs at any time prior to the Maturity Date, then each Holder shall have the right, at such Holder’s option, to require the Company to repurchase for cash all of such Holder’s NotesSecurities, or any portion thereof that is equal to minimum denominations of $1,000 or an integral multiple of $1,000 in excess thereofprincipal amount, on the date (the “Fundamental Change Repurchase Date”) specified by the Company that is not less than 20 calendar days or Business Days and not more than 35 calendar days following Business Days after the date of the Fundamental Change Company Notice at a repurchase price equal to 100% of the principal amount thereof, plus together with accrued and unpaid interest thereon to, but excluding, the Fundamental Change Repurchase Date (the “Fundamental Change Repurchase Price”), unless the Fundamental Change Repurchase Date falls is after a Regular Record Date but and on or prior to the related Interest Payment Date to which such Regular Record Date relatesDate, in which case interest accrued to the Company shall instead pay the full amount of accrued and unpaid interest (to, but excluding, such Interest Payment Date) Date will be paid to Holders holders of record the Securities as of such the preceding Regular Record Date, Date and the Fundamental Change Repurchase Price payable to the Holder surrendering the Security for repurchase pursuant to this Article 3 shall be equal to 100% of the principal amount of Notes Securities subject to be repurchased pursuant to this Article 15; provided that the Company shall repurchase and will not be required to repurchase, or to make an offer to repurchase, the Notes upon a Fundamental Change if a third party makes such an offer in the same manner, at the same time include any accrued and otherwise in compliance with the requirements for an offer made by the Company as set forth in this Section 15.02 and such third party purchases all Notes properly surrendered and not validly withdrawn under its offer in the same manner, at the same time and otherwise in compliance with the requirements for an offer made by the Company as set forth in this Section 15.02.
(b) unpaid interest. Repurchases of Notes Securities under this Section 15.02 3.01 shall be made, at the option of the Holder thereof, upon:
(i) delivery to the Paying Agent or tender agent appointed to facilitate the repurchase (the “Tender Agent”) by a Holder holder of a duly completed notice (the “Fundamental Change Repurchase Notice”) in the form set forth in Attachment 2 on the reverse of the Security and attached as Exhibit C hereto on or prior to the Form of Note attached hereto as Exhibit A, if the Notes are Physical Notes, or in compliance with the Depositary’s procedures for surrendering interests in Global Notes, if the Notes are Global Notes, in each case on or before the close of business on the Business Scheduled Trading Day immediately preceding the Fundamental Change Repurchase Date; and
(ii) delivery or book-entry transfer of the Notes, if the Notes are Physical Notes, Securities to the Paying Agent or Tender Agent, as the case may be, at any time after delivery of the Fundamental Change Repurchase Notice (together with all necessary endorsements for transferendorsements) at the Corporate Trust Office office of the Paying Agent or the principal office of the Tender Agent located in the United States of America as notified by the Tender Agent to Holders and the TrusteeAgent, as applicable, or book-entry transfer of the Notes, if the Notes are Global Notes, in compliance with the procedures of the Depositary, in each case such delivery being a condition to receipt by the Holder holder of the Fundamental Change Repurchase Price therefor; provided that such Fundamental Change Repurchase Price shall be so paid pursuant to this Section 3.01 only if the Security so delivered to the Paying Agent shall conform in all respects to the description thereof in the related Fundamental Change Repurchase Notice. The Fundamental Change Repurchase Notice in respect of any Notes to be repurchased shall state:
(iA) in the case of Physical Notesif certificated, the certificate numbers of the Notes Securities to be delivered for repurchase;
(iiB) the portion of the principal amount of Notes Securities to be repurchased, which must be $1,000 or an integral multiple thereof; and
(iiiC) that the Notes Securities are to be repurchased by the Company pursuant to the applicable provisions of the Notes Securities and this Indenture; provided, however, that if the Notes Securities are Global Notesnot Certificated Securities, the Fundamental Change Repurchase Notice must comply with appropriate Depositary proceduresApplicable Procedures of the Depositary. Any repurchase by the Company contemplated pursuant to the provisions of this Section 3.01 shall be consummated by the payment of the Fundamental Change Repurchase Price pursuant to Section 3.03(a). Notwithstanding anything herein to the contrary, any Holder holder delivering to the Paying Agent or Tender Agent, as the case may be, the Fundamental Change Repurchase Notice contemplated by this Section 15.02 3.01 shall have the right to withdraw, in whole or in part, such Fundamental Change Repurchase Notice at any time prior to the close of business on the Business Scheduled Trading Day immediately preceding the Fundamental Change Repurchase Date by delivery of a written notice of withdrawal to the Paying Agent or Tender Agent, as the case may be, in accordance with Section 15.03, or in accordance with the customary procedures of the Depository with respect to Global Notes3.02. The Paying Agent or Tender Agent, as the case may be, shall promptly notify the Company of the receipt by it of any Fundamental Change Repurchase Notice or written notice of withdrawal thereof.
(cb) On or before the 20th Business Day calendar day after the occurrence of the effective date of a Fundamental Change, the Company shall provide to all Holders of Notes and the Trustee, the Conversion Agent (in the case of a Conversion Agent other than the Trustee) and the Paying Agent (in the case of a Paying Agent other than the Trustee) a notice (the “Fundamental Change Company Notice”) to all Holders of record of the Securities and the Trustee of, and issue a press release in respect of (and make such press release available on the Company’s website), the occurrence of the effective date of the Fundamental Change and of the repurchase right at the option of the Holders arising as a result thereof. In the case of Physical Notes, such Such notice shall be effected by first class mail or, in the case of any Global NotesSecurities, such notice shall be delivered in accordance with the applicable procedures Applicable Procedures of the Depositary. Simultaneously with Depositary for providing such notice, the Company shall publish a notice containing the information set forth in the Fundamental Change Company Notice on the Company’s website or through such other public medium as the Company may use at that timenotices. Each Fundamental Change Company Notice shall specify:
(i) the events causing the Fundamental Change;
(ii) the effective date of the Fundamental Change, and whether the Fundamental Change is a Make-Whole Fundamental Change;
(iii) the last date on which a Holder holder may exercise the repurchase right pursuant to this Article 153;
(iv) the Fundamental Change Repurchase Price;
(v) the Fundamental Change Repurchase Date;
(vi) the name and address of the Paying Agent or Tender Agent, as the case may be, and the Conversion Agent, if applicable;
(vii) the applicable Conversion Rate, and, if applicable, the Conversion Rate and any adjustments to the applicable Conversion Rate as a result of the Fundamental ChangeRate;
(viii) that the Notes Securities with respect to which a Fundamental Change Repurchase Notice has been delivered by a Holder holder may be converted only if the Holder validly holder withdraws the Fundamental Change Repurchase Notice in accordance with the terms of this Indenture;
(ix) that the holder must exercise the repurchase right on or prior to the close of business on the Scheduled Trading Day immediately preceding the Fundamental Change Repurchase Date (the “Fundamental Change Expiration Time”);
(x) that the holder shall have the right to withdraw any Securities surrendered prior to the Fundamental Change Expiration Time; and
(ixxi) the procedures that Holders holders must follow to require the Company to repurchase their NotesSecurities. No failure of the Company to give the foregoing notices and no defect therein shall limit the Holders’ repurchase rights or affect the validity of the proceedings for the repurchase of the Notes Securities pursuant to this Section 15.02. At the Company’s request, given at least five days prior to the date the Fundamental Change Company Notice is to be sent (or such shorter period as may be agreed to by the Trustee), the Trustee shall give such notice in the Company’s name and at the Company’s expense; provided, however, that, in all cases, the text of such Fundamental Change Company Notice shall be prepared by the Company3.01.
(dc) Notwithstanding the foregoing, no Notes Securities may be repurchased by the Company on any date at the option of the Holders upon a Fundamental Change if the principal amount of the Notes Securities has been accelerated, and such acceleration has not been rescinded, on or prior to such date the Fundamental Change Repurchase Date (except in the case of an acceleration resulting from a Default by the Company in the payment of the Fundamental Change Repurchase Price with respect to such NotesSecurities). The Paying Agent .
(d) In connection with any purchase offer, the Company will:
(i) comply with the provisions of Rule 13e-4, Rule 14e-1 and any other tender offer rules under the Exchange Act, if required under the Exchange Act,
(ii) file a Schedule TO or Tender Agentany successor or similar schedule, as if required under the case may beExchange Act, will promptly return to the respective Holders thereof and
(iii) otherwise comply with all federal and state securities laws in connection with any Physical Notes held by it during the acceleration of the Notes (except in the case of an acceleration resulting from a Default offer by the Company to purchase the Securities. Notwithstanding anything to the contrary provided in this Indenture, compliance by the Company with Rule 13e-4, Rule 14e-1 and any other tender offer rule under the Exchange Act in accordance with clause (i) above, to the extent inconsistent with any other provision of this Indenture, will not, standing alone, constitute an Event of Default solely as a result of compliance by the Company with such rules. Notwithstanding the foregoing the Company shall not be required to repurchase the Securities in accordance with this Section 3.01 if a third party or any Subsidiary of the Company makes an offer in the payment of manner, at the Fundamental Change Repurchase Price with respect to such Notes), or any instructions for book-entry transfer of the Notes times and otherwise in compliance with the procedures of the Depositary shall be deemed to have been cancelled, and, upon requirements set forth in this Section 3.01 and purchases all Securities validly tendered and not withdrawn under such return or cancellation, as the case may be, the Fundamental Change Repurchase Notice with respect thereto shall be deemed to have been withdrawnpurchase offer.
Appears in 2 contracts
Samples: Indenture (BGC Partners, Inc.), Indenture (Regis Corp)
Repurchase at Option of Holders Upon a Fundamental Change. (a) If a Fundamental Change occurs at any time prior to the Maturity Datetime, then each Holder Noteholder shall have the right, at such Holder’s option, to require the Company to repurchase for cash all of such Holder’s Notes, Notes or any portion thereof that is equal to minimum denominations of $1,000 or an integral a multiple of $1,000 in excess thereofprincipal amount, for cash on the date (the “Fundamental Change Repurchase Date”) specified by the Company that is not less than 20 calendar days or twenty (20) Business Days and not more than 35 calendar days following thirty-five (35) Business Days after the date of the Fundamental Change Company Notice (as defined below) at a repurchase price equal to 100% of the principal amount thereof, plus together with accrued and unpaid interest thereon to, but excluding, the Fundamental Change Repurchase Date (the “Fundamental Change Repurchase Price”), unless the Fundamental Change Repurchase Date falls after a Regular Record Date but on or prior to the Interest Payment Date to which such Regular Record Date relates, in which case the Company shall instead pay the full amount of accrued and unpaid interest (to, but excluding, such Interest Payment Date) to Holders of record as of such Regular Record Date, and the Fundamental Change Repurchase Price shall be equal to 100% of the principal amount of Notes to be repurchased pursuant to this Article 15; provided that the Company shall not be required to repurchase, or to make an offer to repurchase, the Notes upon a Fundamental Change if a third party makes such an offer in the same manner, at the same time and otherwise in compliance with the requirements for an offer made by the Company as set forth in this Section 15.02 and such third party purchases all Notes properly surrendered and not validly withdrawn under its offer in the same manner, at the same time and otherwise in compliance with the requirements for an offer made by the Company as set forth in this Section 15.02.
(b) . Repurchases of Notes under this Section 15.02 9.02 shall be made, at the option of the Holder thereof, upon:
(i) delivery to the Trustee (or other Paying Agent or tender agent appointed to facilitate by the repurchase (the “Tender Agent”Company) by a Holder of a duly completed notice (the “Fundamental Change Repurchase Notice”) in the form set forth in Attachment 2 on the reverse of the Note prior to the Form of Note attached hereto as Exhibit A, if the Notes are Physical Notes, or in compliance with the Depositary’s procedures for surrendering interests in Global Notes, if the Notes are Global Notes, in each case on or before the close of business on the Business Day immediately preceding the Fundamental Change Repurchase Date; and
(ii) delivery or book-entry transfer of the Notes, if the Notes are Physical Notes, to the Trustee (or other Paying Agent or Tender Agent, as appointed by the case may be, Company) at any time after delivery of the Fundamental Change Repurchase Notice (together with all necessary endorsements for transferendorsements) at the Corporate Trust Office of the Trustee (or other Paying Agent appointed by the Company) in the Borough of Manhattan or the principal office City of the Tender Agent located in the United States of America as notified by the Tender Agent to Holders and the TrusteeBoston, as applicable, or book-entry transfer of the Notes, if the Notes are Global Notes, in compliance with the procedures of the Depositary, in each case such delivery being a condition to receipt by the Holder of the Fundamental Change Repurchase Price therefor; provided that such Fundamental Change Repurchase Price shall be so paid pursuant to this Section 9.02 only if the Note so delivered to the Trustee (or other Paying Agent appointed by the Company) shall conform in all respects to the description thereof in the related Fundamental Change Repurchase Notice. The Fundamental Change Repurchase Notice in respect of any Notes to be repurchased shall state:
(iA) in the case of Physical Notesif certificated, the certificate numbers of the Notes to be delivered for repurchase;
(iiB) the portion of the principal amount of Notes to be repurchased, which must be $1,000 or an integral multiple thereof; and
(iiiC) that the Notes are to be repurchased by the Company pursuant to the applicable provisions of the Notes and this Annex C of the Twelfth Supplemental Indenture; provided, however, that if . Any repurchase by the Notes are Global Notes, the Fundamental Change Repurchase Notice must comply with appropriate Depositary procedures. Notwithstanding anything herein Company contemplated pursuant to the contrary, any Holder delivering to the Paying Agent or Tender Agent, as the case may be, the Fundamental Change Repurchase Notice contemplated by provisions of this Section 15.02 9.02 shall have be consummated by the right delivery of the consideration to withdraw, in whole or in part, such Fundamental Change Repurchase Notice at any time prior to be received by the close Holder promptly following the later of business on the Business Day immediately preceding the Fundamental Change Repurchase Date by and the time of the book-entry transfer or delivery of a written notice of withdrawal to the Note. The Trustee (or other Paying Agent or Tender Agent, as appointed by the case may be, in accordance with Section 15.03, or in accordance with the customary procedures of the Depository with respect to Global Notes. The Paying Agent or Tender Agent, as the case may be, Company) shall promptly notify the Company of the receipt by it of any Fundamental Change Repurchase Notice or written notice of withdrawal thereofthereof in accordance with the provisions of Section 9.02(c). Any Note that is to be repurchased only in part shall be surrendered to the Trustee (with, if the Company or the Trustee so requires, due endorsement by, or a written instrument of transfer in form satisfactory to the Company and the Trustee duly executed by the Holder thereof or his attorney duly authorized in writing), and the Company shall execute, and the Trustee shall authenticate and make available for delivery to the Holder of such Note without service charge, a new Note or Notes, containing identical terms and conditions, each in an authorized denomination in aggregate principal amount equal to and in exchange for the unrepurchased portion of the principal of the Note so surrendered.
(cb) On or before the 20th Business Day twentieth day after the occurrence of the effective date of a any Fundamental Change, the Company shall provide to all Holders of record of the Notes and the Trustee, the Conversion Agent (in the case of a Conversion Agent other than the Trustee) Trustee and the Paying Agent (in the case of a Paying Agent other than the Trustee) a notice (the “Fundamental Change Company Notice”) of the occurrence of the effective date of the such Fundamental Change and of the repurchase right at the option of the Holders arising as a result thereof. In the case of Physical Notes, such notice Such mailing shall be by first class mail or, in the case of Global Notes, such notice shall be delivered in accordance with the applicable procedures of the Depositarymail. Simultaneously with providing such noticeFundamental Change Company Notice, the Company shall publish a notice containing the information set forth included therein once in the Fundamental Change Company Notice a newspaper of general circulation in The City of New York or publish such information on the Company’s website or through such other public medium as the Company may use at that such time. Each Fundamental Change Company Notice shall specify:
(i) the events causing the Fundamental Change;
(ii) the effective date of the Fundamental Change;
(iii) that the last date on which a Holder may must exercise the repurchase right pursuant on or prior to this Article 15the close of business on the Fundamental Change Repurchase Date;
(iv) the Fundamental Change Repurchase Price;
(v) the Fundamental Change Repurchase Date;
(vi) the name and address of the Paying Agent or Tender Agent, as the case may be, and the Conversion Exchange Agent, if applicable;
(vii) if applicable, the Conversion applicable Exchange Rate and any adjustments to the Conversion Rate as a result of the Fundamental Changeapplicable Exchange Rate;
(viii) that the Notes with respect to which a Fundamental Change Repurchase Notice has been delivered by a Holder may be converted exchanged only if the Holder validly withdraws the Fundamental Change Repurchase Notice in accordance with the terms of this Annex C of the Twelfth Supplemental Indenture; and
(ix) the procedures that Holders must follow to require the Company to repurchase their Notes. No failure of the Company to give the foregoing notices and no defect therein shall limit the HoldersNoteholders’ repurchase rights or affect the validity of the proceedings for the repurchase of the Notes pursuant to this Section 15.02. At the Company’s request, given at least five days prior 9.02.
(c) A Fundamental Change Repurchase Notice may be withdrawn by means of a written notice of withdrawal delivered to the date Trustee and Paying Agent in accordance with the Fundamental Change Company Notice is at any time prior to be sent (or such shorter period as may be agreed the close of business on the Business Day prior to by the Trustee), the Trustee shall give such notice in the Company’s name and at the Company’s expense; provided, however, that, in all cases, the text of such Fundamental Change Company Notice shall be prepared by the Company.Repurchase Date, specifying:
(di) Notwithstanding the foregoing, no Notes may be repurchased by the Company on any date at the option of the Holders upon a Fundamental Change if the principal amount of the Notes has with respect to which such notice of withdrawal is being submitted;
(ii) if certificated Notes have been acceleratedissued, and the certificate numbers of the withdrawn Notes; and
(iii) the principal amount, if any, of such acceleration has Notes that remains subject to the original Fundamental Change Repurchase Notice, which portion must be in principal amounts of $1,000 or an integral multiple of $1,000; provided, however, that if the Notes are not been rescindedin certificated form, on the notice must comply with appropriate procedures of the Depositary.
(d) On or prior to such date 11:00 a.m. (except local time in The City of New York) on the case of an acceleration resulting from a Default second Business Day following the Fundamental Change Repurchase Date, the Company will deposit with the Trustee (or other Paying Agent appointed by the Company or if the Company is acting as its own Paying Agent, set aside, segregate and hold in trust in accordance with the Base Indenture as modified by this Annex C of the Twelfth Supplemental Indenture) an amount of money sufficient to repurchase on the Fundamental Change Repurchase Date all of the Notes to be repurchased on such date at the Fundamental Change Repurchase Price. Subject to receipt of funds and/or Notes by the Trustee (or other Paying Agent appointed by the Company), payment for Notes surrendered for repurchase (and not withdrawn) prior to the close of business on the Fundamental Change Repurchase Date will be made promptly after the later of (x) the Fundamental Change Repurchase Date with respect to such Note (provided the Holder has satisfied the conditions to the payment of the Fundamental Change Repurchase Price with respect in Section 9.02), and (y) the time of book-entry transfer or the delivery of such Note to the Trustee (or other Paying Agent appointed by the Company) by the Holder thereof in the manner required by Section 9.02 by mailing checks for the amount payable to the Holders of such Notes)Notes entitled thereto as they shall appear in the Security Register, provided, however, that payments to the Depositary shall be made by wire transfer of immediately available funds to the account of the Depositary or its nominee. The Paying Agent or Tender AgentTrustee shall, as promptly after such payment and upon written demand by the case may beCompany, will promptly return to the respective Holders thereof Company any Physical Notes held by it during the acceleration of the Notes (except funds in the case of an acceleration resulting from a Default by the Company in the payment excess of the Fundamental Change Repurchase Price with respect Price.
(e) If the Trustee (or other Paying Agent appointed by the Company) holds money or securities sufficient to repurchase on the Fundamental Change Repurchase Date all the Notes or portions thereof that are to be purchased as of the second Business Day following the Fundamental Change Repurchase Date, then on and after the Fundamental Change Repurchase Date (i) such Notes will cease to be Outstanding, (ii) interest will cease to accrue on such Notes), and (iii) all other rights of the Holders of such Notes will terminate, whether or any instructions for not book-entry transfer of the Notes in compliance with has been made or the procedures of the Depositary shall be deemed to Notes have been cancelleddelivered to the Trustee or Paying Agent, and, upon such return or cancellation, as other than the case may be, right to receive the Fundamental Change Repurchase Notice with respect thereto shall be deemed to have been withdrawnPrice upon delivery of the Notes.
Appears in 2 contracts
Samples: Supplemental Indenture (Prologis), Supplemental Indenture (Amb Property Lp)
Repurchase at Option of Holders Upon a Fundamental Change. (a) If a Fundamental Change occurs at any time prior to the Maturity Date, each Holder shall have the right, at such Holder’s option, to require the Company to repurchase for cash all of such Holder’s Notes, or any portion of the principal amount thereof properly surrendered and not validly withdrawn pursuant to Section 15.03 that is equal to minimum denominations of $1,000 or an integral a multiple of $1,000 in excess thereof1,000, on the date (the “Fundamental Change Repurchase Date”) specified by the Company that is not less than 20 calendar days or more than 35 calendar days Business Days following the date of the Fundamental Change Company Notice at a repurchase price equal to 100% of the principal amount thereof, plus accrued and unpaid interest thereon to, but excluding, the Fundamental Change Repurchase Date (the “Fundamental Change Repurchase Price”), unless the Fundamental Change Repurchase Date falls after a Regular Record Date but on or prior to the Interest Payment Date to which such Regular Record Date relates, in which case the Company shall instead pay on the relevant Interest Payment Date the full amount of accrued and unpaid interest (to, but excluding, such Interest Payment Date) to Holders the Holder of record as of such Regular Record Date, and the Fundamental Change Repurchase Price shall be equal to 100% of the principal amount of Notes to be repurchased pursuant to this Article 15; provided that . Any Notes so repurchased by the Company shall not be required to repurchase, or to make an offer to repurchase, the Notes upon a paid for in cash. The Fundamental Change if a third party makes such an offer Repurchase Date shall be subject to postponement in the same manner, at the same time and otherwise in compliance with the requirements for an offer made by order to allow the Company to comply with applicable law as set forth in a result of changes to such applicable law occurring after the date of this Section 15.02 and such third party purchases all Notes properly surrendered and not validly withdrawn under its offer in the same manner, at the same time and otherwise in compliance with the requirements for an offer made by the Company as set forth in this Section 15.02Indenture.
(b) Repurchases of Notes under this Section 15.02 shall be made, at the option of the Holder thereof, upon:
(i) delivery to the Paying Agent or tender agent appointed to facilitate the repurchase (the “Tender Agent”) by a Holder of a duly completed written notice (the “Fundamental Change Repurchase Notice”) in the form set forth in Attachment 2 to the Form of Note attached hereto as Exhibit A, if the Notes are Physical Notes, or in compliance with the Depositary’s procedures for surrendering interests in Global Notes, if the Notes are Global Notes, in each case on or before the close of business on the Business Day immediately preceding the Fundamental Change Repurchase Date; and
(ii) delivery of the Notes, if the Notes are Physical Notes, to the Paying Agent or Tender Agent, as the case may be, at any time after delivery of the Fundamental Change Repurchase Notice (together with all necessary endorsements for transfer) at the Corporate Trust Office of the Paying Agent or the principal office of the Tender Agent located in the United States of America as notified by the Tender Agent to Holders and the Trustee, as applicableAgent, or book-entry transfer of the Notes, if the Notes are Global Notes, in compliance with the procedures of the Depositary, in each case such delivery being a condition to receipt by the Holder of the Fundamental Change Repurchase Price therefor. The Fundamental Change Repurchase Notice in respect of any Notes to be repurchased shall state:
(i) in the case of Physical Notes, the certificate numbers of the Notes to be delivered for repurchase;
(ii) the portion of the principal amount of Notes to be repurchased, which must be $1,000 or an integral a multiple thereof; and
(iii) that the Notes are to be repurchased by the Company pursuant to the applicable provisions of the Notes and this Indenture; provided, however, that if the Notes are Global Notes, the Fundamental Change Repurchase Notice must comply with appropriate Depositary procedures. Notwithstanding anything herein to the contrary, any Holder delivering to the Paying Agent or Tender Agent, as the case may be, the Fundamental Change Repurchase Notice contemplated by this Section 15.02 shall have the right to withdraw, in whole or in part, such Fundamental Change Repurchase Notice at any time prior to the close of business on the Business Day immediately preceding the Fundamental Change Repurchase Date by delivery of a written notice of withdrawal to the Paying Agent or Tender Agent, as the case may be, in accordance with Section 15.03, or in accordance with the customary procedures of the Depository with respect to Global Notes. The Paying Agent or Tender Agent, as the case may be, shall promptly notify the Company of the receipt by it of any Fundamental Change Repurchase Notice or written notice of withdrawal thereof.
(c) On or before the 20th Business Day after the occurrence of the effective date of a Fundamental Change, the Company shall provide to all Holders of Notes and Holders, the Trustee, the Conversion Agent (in the case of a Conversion Agent other than the Trustee) and the Paying Agent (in the case of a Paying Agent other than the Trustee) a written notice (the “Fundamental Change Company Notice”) of the occurrence of the effective date of the Fundamental Change and of the resulting repurchase right at the option of the Holders arising as a result thereof. In the case of Physical Notes, such notice shall be by first class mail or, in the case of Global Notes, such notice shall be delivered in accordance with the applicable procedures of the Depositary. Simultaneously with providing such notice, the Company shall publish a notice containing the information set forth in the Fundamental Change Company Notice on the Company’s website or through such other public medium as the Company may use at that time. Each Fundamental Change Company Notice shall specify:
(i) the events causing the Fundamental Change;
(ii) the effective date of the Fundamental Change;
(iii) the last date on which a Holder may exercise the repurchase right pursuant to this Article 15;
(iv) the Fundamental Change Repurchase Price;
(v) the Fundamental Change Repurchase Date;
(vi) the name and address of the Paying Agent or Tender Agent, as the case may be, and the Conversion Agent, if applicable;
(vii) if applicable, the Conversion Rate and any adjustments to the Conversion Rate as a result of the such Fundamental Change (or related Make-Whole Fundamental Change);
(viii) that the Notes with respect to which a Fundamental Change Repurchase Notice has been delivered by a Holder may be converted only if the Holder validly withdraws the Fundamental Change Repurchase Notice in accordance with the terms of this Indenture; and
(ix) the procedures that Holders must follow to require the Company to repurchase their Notes. No failure of the Company to give the foregoing notices and no defect therein shall limit the Holders’ repurchase rights or affect the validity of the proceedings for the repurchase of the Notes pursuant to this Section 15.02. At the Company’s written request, given at least five days prior to the date the Fundamental Change Company Notice is to be sent (or such shorter period as may be agreed to by the Trustee)sent, the Trustee shall give such notice in the Company’s name and at the Company’s expense; provided, however, that, in all cases, the text of such Fundamental Change Company Notice shall be prepared by the Company.
(d) Notwithstanding the foregoing, no Notes may be repurchased by the Company on any date at the option of the Holders upon a Fundamental Change if the principal amount of the Notes has been accelerated, and such acceleration has not been rescinded, on or prior to such date (except in the case of an acceleration resulting from a Default by the Company in the payment of the Fundamental Change Repurchase Price with respect to such Notes). The Paying Agent or Tender Agent, as the case may be, will promptly return to the respective Holders thereof any Physical Notes held by it during the acceleration of the Notes (except in the case of an acceleration resulting from a Default by the Company in the payment of the Fundamental Change Repurchase Price with respect to such Notes), or any instructions for book-entry transfer of the Notes in compliance with the procedures of the Depositary shall be deemed to have been cancelled, and, upon such return or cancellation, as the case may be, the Fundamental Change Repurchase Notice with respect thereto shall be deemed to have been withdrawn.
(e) The Company shall not be required to repurchase or make an offer to repurchase Notes upon the occurrence of a Fundamental Change otherwise required under this Section 15.02 if a third party makes such an offer to purchase Notes in the same manner, at the same time and otherwise in compliance with the requirements for an offer made by the Company as set forth in this Indenture and such third party purchases all Notes properly surrendered and not validly withdrawn under such offer to purchase.
Appears in 2 contracts
Samples: Indenture (Brookdale Senior Living Inc.), Indenture (Brookdale Senior Living Inc.)
Repurchase at Option of Holders Upon a Fundamental Change. (a) If a Fundamental Change occurs at any time prior to the Maturity Date, each Holder shall have the right, at such Holder’s option, to require the Company to repurchase for cash all of such Holder’s Notes, or any portion of the principal amount thereof properly surrendered and not validly withdrawn pursuant to Section 15.03 that is equal to minimum denominations of $1,000 or an integral a multiple of $1,000 in excess thereof1,000, on the date (the “Fundamental Change Repurchase Date”) specified by the Company that is not less than 20 calendar days or more than 35 calendar days Business Days following the date of the Fundamental Change Company Notice at a repurchase price equal to 100% of the principal amount thereof, plus accrued and unpaid interest thereon to, but excluding, the Fundamental Change Repurchase Date (the “Fundamental Change Repurchase Price”), unless the Fundamental Change Repurchase Date falls after a Regular Record Date but on or prior to the Interest Payment Date to which such Regular Record Date relates, in which case the Company shall instead pay the full amount of accrued and unpaid interest (to, but excluding, such Interest Payment Date) to Holders the Holder of record as of such Regular Record Date, and the Fundamental Change Repurchase Price shall be equal to 100% of the principal amount of Notes to be repurchased pursuant to this Article 15; provided that . Any Notes so repurchased by the Company shall not be required to repurchase, or to make an offer to repurchase, the Notes upon a Fundamental Change if a third party makes such an offer paid for in the same manner, at the same time and otherwise in compliance with the requirements for an offer made by the Company as set forth in this Section 15.02 and such third party purchases all Notes properly surrendered and not validly withdrawn under its offer in the same manner, at the same time and otherwise in compliance with the requirements for an offer made by the Company as set forth in this Section 15.02cash.
(b) Repurchases of Notes under this Section 15.02 shall be made, at the option of the Holder thereof, upon:
(i) delivery to the Paying Agent or tender agent appointed to facilitate the repurchase (the “Tender Agent”) by a Holder of a duly completed written notice (the “Fundamental Change Repurchase Notice”) in the form set forth in Attachment 2 to the Form of Note attached hereto as Exhibit A, if the Notes are Physical Notes, or in compliance with the Depositary’s procedures for surrendering interests in Global Notes, if the Notes are Global Notes, in each case on or before the close of business on the Business Day immediately preceding the Fundamental Change Repurchase Date; and
(ii) delivery of the Notes, if the Notes are Physical Notes, to the Paying Agent or Tender Agent, as the case may be, at any time after delivery of the Fundamental Change Repurchase Notice (together with all necessary endorsements for transfer) at the Corporate Trust Office of the Paying Agent or the principal office of the Tender Agent located in the United States of America as notified by the Tender Agent to Holders and the Trustee, as applicableAgent, or book-entry transfer of the Notes, if the Notes are Global Notes, in compliance with the procedures of the Depositary, in each case such delivery being a condition to receipt by the Holder of the Fundamental Change Repurchase Price therefor. The Fundamental Change Repurchase Notice in respect of any Notes to be repurchased shall state:
(i) in the case of Physical Notes, the certificate numbers of the Notes to be delivered for repurchase;
(ii) the portion of the principal amount of Notes to be repurchased, which must be $1,000 or an integral a multiple thereof; and
(iii) that the Notes are to be repurchased by the Company pursuant to the applicable provisions of the Notes and this Indenture; provided, however, that if the Notes are Global Notes, the Fundamental Change Repurchase Notice must comply with appropriate Depositary procedures. Notwithstanding anything herein to the contrary, any Holder delivering to the Paying Agent or Tender Agent, as the case may be, the Fundamental Change Repurchase Notice contemplated by this Section 15.02 shall have the right to withdraw, in whole or in part, such Fundamental Change Repurchase Notice at any time prior to the close of business on the Business Day immediately preceding the Fundamental Change Repurchase Date by delivery of a written notice of withdrawal to the Paying Agent or Tender Agent, as the case may be, in accordance with Section 15.03, or in accordance with the customary procedures of the Depository with respect to Global Notes. The Paying Agent or Tender Agent, as the case may be, shall promptly notify the Company of the receipt by it of any Fundamental Change Repurchase Notice or written notice of withdrawal thereof.
(c) On or before the 20th Business Day calendar day after the occurrence of the effective date of a Fundamental Change, the Company shall provide to all Holders of Notes and the Trustee, the Conversion Agent (in the case of a Conversion Agent other than the Trustee) Trustee and the Paying Agent (in the case of a Paying Agent other than the Trustee) a written notice (the “Fundamental Change Company Notice”) of the occurrence of the effective date of the Fundamental Change and of the resulting repurchase right at the option of the Holders arising as a result thereof. In the case of Physical Notes, such notice shall be by first class mail or, in the case of Global Notes, such notice shall be delivered in accordance with the applicable procedures of the Depositary. Simultaneously with providing such notice, the Company shall publish a notice containing the information set forth in the Fundamental Change Company Notice on the Company’s website or through such other public medium as the Company may use at that time. Each Fundamental Change Company Notice shall specify:
(i) the events causing the Fundamental Change;
(ii) the effective date of the Fundamental Change;
(iii) the last date on which a Holder may exercise the repurchase right pursuant to this Article 15;
(iv) the Fundamental Change Repurchase Price;
(v) the Fundamental Change Repurchase Date;
(vi) the name and address of the Paying Agent or Tender Agent, as the case may be, and the Conversion Agent, if applicable;
(vii) if applicable, the Conversion Rate and any adjustments to the Conversion Rate as a result of the such Fundamental Change (or related Make-Whole Fundamental Change);
(viii) that the Notes with respect to which a Fundamental Change Repurchase Notice has been delivered by a Holder may be converted only if the Holder validly withdraws the Fundamental Change Repurchase Notice in accordance with the terms of this Indenture; and
(ix) the procedures that Holders must follow to require the Company to repurchase their Notes. No failure of the Company to give the foregoing notices and no defect therein shall limit the Holders’ repurchase rights or affect the validity of the proceedings for the repurchase of the Notes pursuant to this Section 15.02. At the Company’s request, given at least five days prior to the date the Fundamental Change Company Notice is to be sent (or such shorter period as may be agreed to by the Trustee)sent, the Trustee shall give such notice in the Company’s name and at the Company’s expense; provided, however, that, in all cases, the text of such Fundamental Change Company Notice shall be prepared by the Company.
(d) Notwithstanding the foregoing, no Notes may be repurchased by the Company on any date at the option of the Holders upon a Fundamental Change if the principal amount of the Notes has been accelerated, and such acceleration has not been rescinded, on or prior to such date (except in the case of an acceleration resulting from a Default by the Company in the payment of the Fundamental Change Repurchase Price with respect to such Notes). The Paying Agent or Tender Agent, as the case may be, will promptly return to the respective Holders thereof any Physical Notes held by it during the acceleration of the Notes (except in the case of an acceleration resulting from a Default by the Company in the payment of the Fundamental Change Repurchase Price with respect to such Notes), or any instructions for book-entry transfer of the Notes in compliance with the procedures of the Depositary shall be deemed to have been cancelled, and, upon such return or cancellation, as the case may be, the Fundamental Change Repurchase Notice with respect thereto shall be deemed to have been withdrawn.
(e) The Company shall not be required to repurchase or make an offer to repurchase Notes upon the occurrence of a Fundamental Change otherwise required under this Section 15.02 if a third party makes such an offer to purchase Notes in the same manner, at the same time and otherwise in compliance with the requirements for an offer made by the Company as set forth in this Indenture and such third party purchases all Notes properly surrendered and not validly withdrawn under such offer to purchase.
Appears in 2 contracts
Samples: Indenture (Coupa Software Inc), Indenture (Coupa Software Inc)
Repurchase at Option of Holders Upon a Fundamental Change. (a) If a Fundamental Change occurs at any time prior to the Maturity Date, each Holder shall have the right, at such Holder’s option, to require the Company to repurchase for cash all of such Holder’s Notes, or any portion of the principal amount thereof that is equal to minimum denominations of $1,000 or an integral multiple of $1,000 in excess thereof, on the date (the “Fundamental Change Repurchase Date”) specified by the Company that is not less than 20 calendar days or nor more than 35 calendar days following the date of the Fundamental Change Company Notice (subject to extension to comply with applicable law), at a repurchase price equal to 100% of the principal amount thereof, plus accrued and unpaid interest thereon to, but excludingnot including, the Fundamental Change Repurchase Date (the “Fundamental Change Repurchase Price”), unless the Fundamental Change Repurchase Date falls after a Regular Record Date but on or prior to the Interest Payment Date to which such Regular Record Date relates, in which case the Company shall instead pay the full amount of accrued and unpaid interest (to, but excluding, such Interest Payment Date) to Holders of record as of such Regular Record Date, and the Fundamental Change Repurchase Price shall be equal to 100% of the principal amount of Notes to be repurchased purchased pursuant to this Article 15; provided that the Company shall not be required to repurchase, or to make an offer to repurchase, the Notes upon a Fundamental Change if a third party makes such an offer in the same manner, at the same time and otherwise in compliance with the requirements for an offer made by the Company as set forth in this Section 15.02 and such third party purchases all Notes properly surrendered and not validly withdrawn under its offer in the same manner, at the same time and otherwise in compliance with the requirements for an offer made by the Company as set forth in this Section 15.02.
(b) Repurchases of Notes under this Section 15.02 shall be made, at the option of the Holder thereof, upon:
(i) delivery to the Paying Agent or tender agent appointed to facilitate the repurchase (the “Tender Agent”) by a Holder of a duly completed notice (the “Fundamental Change Repurchase Notice”) in the form set forth in Attachment 2 to the Form of Note attached hereto as Exhibit A, if the Notes are Physical Certificated Notes, or in compliance with the Depositary’s procedures Applicable Procedures for surrendering interests in Global Notes, if the Notes are Global Notes, in each case on or before the close of business on the Business Day immediately preceding the Fundamental Change Repurchase Date; and
(ii) delivery of the Notes, if the Notes are Physical Certificated Notes, to the Paying Agent on or Tender Agent, as before the case may be, at any time after delivery close of business on the Business Day immediately preceding the Fundamental Change Repurchase Notice Date (together with all necessary endorsements for transfer) at the Corporate Trust Office of the Paying Agent or the principal office of the Tender Agent located in the United States of America as notified by the Tender Agent to Holders and the Trustee, as applicableAgent, or book-entry transfer of the Notes, if the Notes are Global Notes, in compliance with the procedures of the DepositaryApplicable Procedures, in each case such delivery being a condition to receipt by the Holder of the Fundamental Change Repurchase Price therefor. The Fundamental Change Repurchase Notice in respect of any Notes to be repurchased shall state:
(i) A. in the case of Physical Certificated Notes, the certificate numbers of the Notes to be delivered for repurchase;
(ii) B. the portion of the principal amount of Notes to be repurchased, which must be $1,000 or an integral multiple of $1,000 in excess thereof; and
(iii) C. that the Notes are to be repurchased by the Company pursuant to the applicable provisions of the Notes and this Indenture; provided, however, that if the Notes are Global Notes, the Fundamental Change Repurchase Notice must comply with appropriate Depositary proceduresthe Applicable Procedures. Notwithstanding anything herein to the contrary, any Holder delivering to the Paying Agent or Tender Agent, as the case may be, the Fundamental Change Repurchase Notice contemplated by this Section 15.02 shall have the right to withdraw, in whole or in part, such Fundamental Change Repurchase Notice at any time prior to the close of business on the Business Day immediately preceding the Fundamental Change Repurchase Date by delivery of a written notice of withdrawal to the Paying Agent or Tender Agent, as the case may be, in accordance with Section 15.03. If a Holder has already delivered a Fundamental Change Repurchase Notice with respect to a Note, or such Holder may not surrender such Note for conversion until such Holder has validly withdrawn such Fundamental Change Repurchase Notice (or, in the case of a Global Note, has complied with the Applicable Procedures with respect to such a withdrawal) in accordance with the customary procedures terms of the Depository with respect to Global NotesSection 15.03. The Paying Agent or Tender Agent, as the case may be, shall promptly notify the Company of the receipt by it of any Fundamental Change Repurchase Notice or written notice of withdrawal thereof.
(c) On or before the 20th Business Day calendar day after the occurrence of the effective date of a Fundamental Change, the Company shall provide to all Holders of Notes and Notes, the Trustee, the Conversion Agent (in the case of a Conversion Agent if other than the Trustee) and the Paying Agent (in the case of a Paying Agent if other than the Trustee) a notice (the “Fundamental Change Company Notice”) of the occurrence of the effective date of the Fundamental Change and of the repurchase right at the option of the Holders arising as a result thereof. In the case of Physical Certificated Notes, such notice shall be by first class mail or, in the case of Global Notes, such notice shall be delivered in accordance with the applicable procedures of the Depositary. Simultaneously with providing such notice, the Company shall publish a notice containing the information set forth in the Fundamental Change Company Notice on the Company’s website or through such other public medium as the Company may use at that time. Each Fundamental Change Company Notice shall specify:
(i) the events causing the Fundamental Change;
(ii) the effective date of the Fundamental Change;
(iii) the last date on which a Holder may exercise the repurchase right pursuant to this Article 15;
(iv) the Fundamental Change Repurchase Price;
(v) the Fundamental Change Repurchase Date;
(vi) the name and address of the Paying Agent or Tender Agent, as the case may be, and the Conversion AgentAgent (if other than the Trustee), if applicable;
(vii) if applicable, the Conversion Rate and any adjustments to the Conversion Rate as a result of the Fundamental ChangeRate;
(viii) that the Notes with respect to which a Fundamental Change Repurchase Notice has been delivered by a Holder may be converted only if the Holder validly withdraws the Fundamental Change Repurchase Notice in accordance with the terms of this Indenture; andIndenture (or, in the case of a Global Note, complies with the Applicable Procedures with respect to such a withdrawal);
(ix) the procedures that Holders must follow to require the Company to repurchase their Notes; and
(x) the CUSIP numbers and the statement required in Section 2.09 hereto. No failure of Simultaneously with providing such Fundamental Change Company Notice, the Company to give shall issue a press release containing such information, disclose the foregoing notices and no defect therein shall limit information in a Current Report on Form 8-K or post such information on the Holders’ repurchase rights or affect the validity of the proceedings for the repurchase of the Notes pursuant to this Section 15.02Company’s website. At the Company’s written request, given at least five days prior to the date the Fundamental Change Company Notice is to be sent (or such shorter period as may be agreed to by the Trustee), the Trustee shall give such notice in the Company’s name and at the Company’s expense; provided, however, that, in all cases, the text of such Fundamental Change Company Notice shall be prepared by the Company. In such a case, the Company shall deliver such notice to the Trustee at least three Business Days prior to the date that the notice is required to be given to the Holders (unless a shorter notice period shall be agreed to by the Trustee), together with Officer’s Certificate requesting that the Trustee give such notice. Such notice shall be delivered to the Trustee, to the Paying Agent (if other than the Trustee) and to each Holder at its address shown in the Note Register (and to the beneficial owner as required by applicable law) or, in the case of Global Notes, in accordance with the Applicable Procedures. No failure of the Company to give the foregoing notices and no defect therein shall limit the Holders’ repurchase rights or affect the validity of the proceedings for the repurchase of the Notes pursuant to this Section 15.02.
(d) Notwithstanding the foregoing, no Notes may be repurchased by the Company on any date at the option of the Holders upon a Fundamental Change if the principal amount of the Notes has been accelerated, and such acceleration has not been rescinded, on or prior to such date (except in the case of an acceleration resulting from a Default by the Company in the payment of the Fundamental Change Repurchase Price with respect to such Notes). The Paying Agent or Tender Agent, as the case may be, will promptly return to the respective Holders thereof any Physical Certificated Notes held by it during the acceleration of the Notes (except in the case of an acceleration resulting from a Default by the Company in the payment of the Fundamental Change Repurchase Price with respect to such Notes), or any instructions for book-entry transfer of the Notes in compliance with the procedures of the Depositary Applicable Procedures shall be deemed to have been cancelled, and, upon such return or cancellation, as the case may be, the Fundamental Change Repurchase Notice with respect thereto shall be deemed to have been withdrawn. Notwithstanding anything to the contrary in this Section 15.02, the Company shall not be required to repurchase, or to make an offer to repurchase, Notes upon a Fundamental Change if:
(i) a third party makes the offer in the manner, at the times, and otherwise in compliance with the requirements set forth in this Indenture applicable to an offer by the Company to repurchase Notes upon a Fundamental Change and such third party purchases all Notes validly tendered and not withdrawn upon such offer in the manner and otherwise in compliance with such requirements; or
(ii) pursuant to clause (b) of the definition thereof (or a Fundamental Change pursuant to clause (a) which also results in a Fundamental Change pursuant to clause (b)), if (i) such Fundamental Change results in the Notes becoming convertible (pursuant to the provisions described in Section 14.07) into an amount of cash per Note that is greater than (x) the Fundamental Change Repurchase Price (assuming the maximum amount of accrued interest would be payable based on the latest possible Fundamental Change Repurchase Date), plus (y) to the extent that the 35th Trading Day immediately following the effective date of such Fundamental Change is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date, the full amount of interest payable per Note on such Interest Payment Date and (ii) the Company provides timely notice of the Holders’ right to convert their Notes based on such Fundamental Change as described in Section 14.01(b)(iii) (the requirements set forth in clauses (i) and (ii) of this Section 15.02(d), the “Adequate Cash Conversion Provisions”).
Appears in 2 contracts
Samples: Indenture (MACOM Technology Solutions Holdings, Inc.), Indenture (TechTarget Inc)
Repurchase at Option of Holders Upon a Fundamental Change. (a) If a Fundamental Change occurs at any time prior to the Maturity Datetime, each Holder shall have the right, at such Holder’s option, to require the Company to repurchase for cash all of such Holder’s Notes, or any portion thereof that is equal to minimum denominations of $1,000 or in an integral multiple of $1,000 in excess thereofAuthorized Denomination, on the date (the “Fundamental Change Repurchase Date”) specified by the Company that is not less than 20 calendar days Business Days or more than 35 calendar days 30 Business Days following the date of the Fundamental Change Company Notice at a repurchase price equal to 100% of the principal amount thereof, plus accrued and unpaid interest thereon to, but excluding, the Fundamental Change Repurchase Date (the “Fundamental Change Repurchase Price”); provided, unless however, that if the Fundamental Change Repurchase Date falls is after a Regular Record Date but on or prior to the Interest Payment Date to which such Regular Record Date relates, in which case then the Company shall instead pay pay, on or before such Interest Payment Date, the full amount of accrued and unpaid interest (to, but excluding, such Interest Payment Date) to Holders of record as of such Regular Record Date, and the Fundamental Change Repurchase Price shall be equal to 100% of the principal amount of Notes to be repurchased pursuant to this Article 15; provided that the Company shall not be required to repurchase, or to make an offer to repurchase, the Notes upon a Fundamental Change if a third party makes such an offer in the same manner, at the same time and otherwise in compliance with the requirements for an offer made by the Company as set forth in this Section 15.02 and such third party purchases all Notes properly surrendered and not validly withdrawn under its offer in the same manner, at the same time and otherwise in compliance with the requirements for an offer made by the Company as set forth in this Section 15.0214.
(b) Repurchases of Notes under this Section 15.02 14.01 shall be made, at the option of the Holder thereof, upon:
(i) delivery to the Paying Agent or tender agent appointed to facilitate the repurchase (the “Tender Agent”) by a Holder of a duly completed notice (the “Fundamental Change Repurchase Notice”) substantially in the form set forth in Attachment 2 to the Form of Note attached hereto as Exhibit A, if the Notes are Physical Notes, or in compliance with the Depositary’s procedures Applicable Procedures for surrendering interests in Global Notes, if the Notes are Global Notes, in each case on or before the close Close of business Business on the Business Day immediately preceding the Fundamental Change Repurchase Date; and
(ii) delivery of the Notes, if the Notes are Physical Notes, to the Paying Agent or Tender Agent, as the case may be, at any time after delivery of the Fundamental Change Repurchase Notice (together with all necessary endorsements for transfer) at the Corporate Trust Office of the Paying Agent or the principal office of the Tender Agent located in the United States of America as notified by the Tender Agent to Holders and the Trustee, as applicable, or book-entry transfer of the Notes, if the Notes are Global Notes, in compliance with the procedures of the Depositary, in each case such delivery being a condition to receipt by the Holder of the Fundamental Change Repurchase Price therefor. The Fundamental Change Repurchase Notice in respect of any Notes to be repurchased shall state:
(i) in the case of Physical Notes, the certificate numbers of the Notes to be delivered for repurchase;
(ii) the portion of the principal amount of Notes to be repurchased, which must be $1,000 or an integral multiple thereof; and
(iii) that the Notes are to be repurchased by the Company pursuant to the applicable provisions of the Notes and this Indenture; provided, however, that if the Notes are Global Notes, the Fundamental Change Repurchase Notice must comply with appropriate Depositary procedures. Notwithstanding anything herein to the contrary, any Holder delivering to the Paying Agent or Tender Agent, as the case may be, the Fundamental Change Repurchase Notice contemplated by this Section 15.02 shall have the right to withdraw, in whole or in part, such Fundamental Change Repurchase Notice at any time prior to the close of business on the Business Day immediately preceding the Fundamental Change Repurchase Date by delivery of a written notice of withdrawal to the Paying Agent or Tender Agent, as the case may be, in accordance with Section 15.03, or in accordance with the customary procedures of the Depository with respect to Global Notes. The Paying Agent or Tender Agent, as the case may be, shall promptly notify the Company of the receipt by it of any Fundamental Change Repurchase Notice or written notice of withdrawal thereof.
(c) On or before the 20th Business Day after the occurrence of the effective date of a Fundamental Change, the Company shall provide to all Holders of Notes and the Trustee, the Conversion Agent (in the case of a Conversion Agent other than the Trustee) and the Paying Agent (in the case of a Paying Agent other than the Trustee) a notice (the “Fundamental Change Company Notice”) of the occurrence of the effective date of the Fundamental Change and of the repurchase right at the option of the Holders arising as a result thereof. In the case of Physical Notes, such notice shall be by first class mail or, in the case of Global Notes, such notice shall be delivered in accordance with the applicable procedures of the Depositary. Simultaneously with providing such notice, the Company shall publish a notice containing the information set forth in the Fundamental Change Company Notice on the Company’s website or through such other public medium as the Company may use at that time. Each Fundamental Change Company Notice shall specify:
(i) the events causing the Fundamental Change;
(ii) the effective date of the Fundamental Change;
(iii) the last date on which a Holder may exercise the repurchase right pursuant to this Article 15;
(iv) the Fundamental Change Repurchase Price;
(v) the Fundamental Change Repurchase Date;
(vi) the name and address of the Paying Agent or Tender Agent, as the case may be, and the Conversion Agent, if applicable;
(vii) if applicable, the Conversion Rate and any adjustments to the Conversion Rate as a result of the Fundamental Change;
(viii) that the Notes with respect to which a Fundamental Change Repurchase Notice has been delivered by a Holder may be converted only if the Holder validly withdraws the Fundamental Change Repurchase Notice in accordance with the terms of this Indenture; and
(ix) the procedures that Holders must follow to require the Company to repurchase their Notes. No failure of the Company to give the foregoing notices and no defect therein shall limit the Holders’ repurchase rights or affect the validity of the proceedings for the repurchase of the Notes pursuant to this Section 15.02. At the Company’s request, given at least five days prior to the date the Fundamental Change Company Notice is to be sent (or such shorter period as may be agreed to by the Trustee), the Trustee shall give such notice in the Company’s name and at the Company’s expense; provided, however, that, in all cases, the text of such Fundamental Change Company Notice shall be prepared by the Company.
(d) Notwithstanding the foregoing, no Notes may be repurchased by the Company on any date at the option of the Holders upon a Fundamental Change if the principal amount of the Notes has been accelerated, and such acceleration has not been rescinded, on or prior to such date (except in the case of an acceleration resulting from a Default by the Company in the payment of the Fundamental Change Repurchase Price with respect to such Notes). The Paying Agent or Tender Agent, as the case may be, will promptly return to the respective Holders thereof any Physical Notes held by it during the acceleration of the Notes (except in the case of an acceleration resulting from a Default by the Company in the payment of the Fundamental Change Repurchase Price with respect to such Notes), or any instructions for book-entry transfer of the Notes in compliance with the procedures of the Depositary shall be deemed to have been cancelled, and, upon such return or cancellation, as the case may be, the Fundamental Change Repurchase Notice with respect thereto shall be deemed to have been withdrawn.
Appears in 2 contracts
Samples: Indenture (Pacira BioSciences, Inc.), Indenture (Pacira BioSciences, Inc.)
Repurchase at Option of Holders Upon a Fundamental Change. (a) If a Fundamental Change occurs at any time prior to the Maturity Date, then each Holder Noteholder shall have the right, at such Holder’s option, to require the Company to repurchase for cash all of such Holder’s Notes, Notes or any portion thereof that is equal to minimum denominations of $1,000 or an integral a multiple of $1,000 in excess thereofprincipal amount, for cash on or after the Close of Business on the date (the “Fundamental Change Repurchase Date”) specified by the Company that is not less than 20 twenty (20) calendar days or and not more than 35 thirty-five (35) calendar days following after the date of the Fundamental Change Company Notice (as defined below) at a repurchase price equal to 100% of the principal amount thereof, plus together with accrued and unpaid interest thereon (including Filing Additional Interest, if any) to, but excluding, the Fundamental Change Repurchase Date (collectively, the “Fundamental Change Repurchase Price”). Notwithstanding the foregoing, unless if the Fundamental Change Repurchase Date falls is after a Regular Record Date but and on or prior to the corresponding Interest Payment Date to which such Regular Record Date relatesDate, in which case the Company shall instead pay the full amount of accrued and unpaid interest (toincluding Filing Additional Interest, but excluding, such Interest Payment Dateif any) to Holders of record as of such Regular Record Date, and will be paid on the Fundamental Change Repurchase Price shall be equal Date to 100% the Holder of record on the principal amount of Notes to be repurchased pursuant to this Article 15; provided that the Company shall not be required to repurchase, or to make an offer to repurchase, the Notes upon a Fundamental Change if a third party makes such an offer in the same manner, at the same time and otherwise in compliance with the requirements for an offer made by the Company as set forth in this Section 15.02 and such third party purchases all Notes properly surrendered and not validly withdrawn under its offer in the same manner, at the same time and otherwise in compliance with the requirements for an offer made by the Company as set forth in this Section 15.02.
(b) Record Date. Repurchases of Notes under this Section 15.02 11.02 shall be made, at the option of the Holder thereof, upon:
(i) delivery to the Trustee (or other Paying Agent or tender agent appointed to facilitate by the repurchase (the “Tender Agent”Company) by a Holder of a duly completed notice (the “Fundamental Change Repurchase Notice”) in the form set forth in Attachment 2 to the Form of Note attached hereto as Exhibit A, if the Notes are Physical Notes, or in compliance with the Depositary’s procedures for surrendering interests in Global Notes, if the Notes are Global Notes, in each case on or before the close of business on the reverse of the Note at any time prior the Close of Business Day immediately preceding on the Fundamental Change Repurchase Date; and
(ii) delivery or book-entry transfer of the Notes, if the Notes are Physical Notes, to the Trustee (or other Paying Agent or Tender Agent, as appointed by the case may be, Company) at any time after delivery of the Fundamental Change Repurchase Notice (together with all necessary endorsements for transferendorsements) at the Corporate Trust Office of the Trustee (or other Paying Agent or appointed by the principal office of the Tender Agent located Company) in the United States Borough of America as notified by the Tender Agent to Holders and the TrusteeManhattan, as applicable, or book-entry transfer of the Notes, if the Notes are Global Notes, in compliance with the procedures of the Depositary, in each case such delivery being a condition to receipt by the Holder of the Fundamental Change Repurchase Price therefor; provided that such Fundamental Change Repurchase Price shall be so paid pursuant to this Section 11.02 only if the Note so delivered to the Trustee (or other Paying Agent appointed by the Company) shall conform in all respects to the description thereof in the related Fundamental Change Repurchase Notice. The Fundamental Change Repurchase Notice in respect of any Notes to be repurchased shall state:
(iA) in the case of Physical Notesif certificated, the certificate numbers of the Notes to be delivered for repurchase;
(iiB) the portion of the principal amount of Notes to be repurchased, which must be $1,000 or an integral multiple thereof; and;
(iiiC) that the Notes are to be repurchased by the Company pursuant to the applicable provisions of the Notes and this the Indenture; and
(D) if such Fundamental Change Repurchase Notice is delivered prior to the occurrence of a Fundamental Change pursuant to a definitive agreement giving rise to a Fundamental Change, that the Holder acknowledges that the Company’s offer is conditioned on the occurrence of such Fundamental Change. provided, however, that if the Notes are Global Notesnot in certificated form, the Fundamental Change Repurchase Notice must comply with appropriate Depositary proceduresApplicable Procedures. Notwithstanding anything herein Any repurchase by the Company contemplated pursuant to the contrary, any Holder delivering to the Paying Agent or Tender Agent, as the case may be, the Fundamental Change Repurchase Notice contemplated by provisions of this Section 15.02 11.02 shall have be consummated by the right delivery of the consideration to withdraw, in whole or in part, such Fundamental Change Repurchase Notice at any time prior to be received by the close Holder promptly following the later of business on the Business Day immediately preceding the Fundamental Change Repurchase Date by and the time of the book-entry transfer or delivery of a written notice of withdrawal to the Note. The Trustee (or other Paying Agent or Tender Agent, as appointed by the case may be, in accordance with Section 15.03, or in accordance with the customary procedures of the Depository with respect to Global Notes. The Paying Agent or Tender Agent, as the case may be, Company) shall promptly notify the Company of the receipt by it of any Fundamental Change Repurchase Notice or written notice of withdrawal thereofthereof in accordance with the provisions of Section 11.02(c). Any Note that is to be repurchased only in part shall be surrendered to the Trustee (with, if the Company or the Trustee so requires, due endorsement by, or a written instrument of transfer in form satisfactory to the Company and the Trustee duly executed by the Holder thereof or his attorney duly authorized in writing), and the Company shall execute, and the Trustee shall authenticate and make available for delivery to the Holder of such Note without service charge, a new Note or Notes, containing identical terms and conditions, each in an authorized denomination in aggregate principal amount equal to and in exchange for the unrepurchased portion of the principal of the Note so surrendered.
(cb) On or before the 20th Business Day fifth (5th) calendar day after the occurrence of the effective date of a Fundamental Change, the Company shall provide to all Holders of record of the Notes and as of the Trustee, date of the Conversion Agent (Fundamental Change Company Notice at their addresses shown in the case of a Conversion Agent other than Note Register (and to beneficial owners to the Trusteeextent required by applicable law) and the Trustee and Paying Agent (in the case of a Paying Agent other than the Trustee) a written notice (the “Fundamental Change Company Notice”) of the occurrence of the effective date of the such Fundamental Change and of the repurchase right at the option of the Holders arising as a result thereof. In the case of Physical Notes, such notice Such mailing shall be by first class mail or, in the case of Global Notes, such notice shall be delivered in accordance with the applicable procedures of the Depositarymail. Simultaneously with providing such noticeFundamental Change Company Notice, the Company shall publish a notice containing the information set forth included therein once in the Fundamental Change Company Notice a newspaper of general circulation in The City of New York or publish such information on the Company’s website or through such other public medium as the Company may use at that such time. Each Fundamental Change Company Notice shall specify:
(i) the events causing the Fundamental Change;
(ii) the effective date of the Fundamental Change;
(iii) that the last date on which a Holder may must exercise the repurchase right pursuant prior to this Article 15the Close of Business on the Fundamental Change Repurchase Date;
(iv) the Fundamental Change Repurchase Price;
(v) the Fundamental Change Repurchase Date;
(vi) the name and address of the Paying Agent or Tender Agent, as the case may be, and the Conversion Agent, if applicable;
(vii) if applicable, the applicable Conversion Rate and any adjustments to the applicable Conversion Rate as a result of the Fundamental ChangeRate;
(viii) that the Notes with respect to which a Fundamental Change Repurchase Notice has been delivered by a Holder may be converted only if the Holder validly withdraws the Fundamental Change Repurchase Notice in accordance with the terms of this the Indenture; and
(ix) the procedures that Holders must follow to require the Company to repurchase their Notes. No failure of the Company to give the foregoing notices and no defect therein shall limit the HoldersNoteholders’ repurchase rights or affect the validity of the proceedings for the repurchase of the Notes pursuant to this Section 15.02. At the Company’s request, given at least five days prior 11.02.
(c) A Fundamental Change Repurchase Notice may be withdrawn by delivering a written notice of withdrawal to the date Paying Agent in accordance with the Fundamental Change Company Notice is at any time prior to be sent (or such shorter period as may be agreed to by the Trustee), Close of Business on the Trustee shall give such notice in the Company’s name and at the Company’s expense; provided, however, that, in all cases, the text of such Fundamental Change Company Notice shall be prepared by the Company.Repurchase Date, specifying:
(di) Notwithstanding the foregoing, no Notes may be repurchased by the Company on any date at the option of the Holders upon a Fundamental Change if the principal amount of the Notes has been acceleratedwith respect to which such notice of withdrawal is being submitted;
(ii) the principal amount, and if any, of such acceleration has not been rescinded, on or prior Notes that remains subject to such date (except in the case of an acceleration resulting from a Default by the Company in the payment of the original Fundamental Change Repurchase Price Notice, which portion must be in principal amounts of $1,000 or an integral multiple of $1,000; and
(iii) if certificated Notes have been issued, the certificate numbers of the withdrawn Notes; provided, however, that if the Notes are not in certificated form, the notice must comply with respect to such Notes)Applicable Procedures. The Paying Agent or Tender Agent, as the case may be, will promptly return to the respective Holders thereof any Physical certificated Notes held with respect to which a Fundamental Change Repurchase Notice has been withdrawn in compliance with the provisions of this Section 11.02(c). If the Notes are not in certificated form, such return must comply with the appropriate procedures of the Depositary. If a Fundamental Change Repurchase Notice is given and then subsequently withdrawn in accordance with this Section 11.02(c), then the Company shall not be obligated to repurchase any Notes listed in such Fundamental Change Repurchase Notice.
(d) On or prior to 1:00 p.m. (local time in The City of New York) on the Business Day following the Fundamental Change Repurchase Date, the Company will deposit with the Trustee (or other Paying Agent appointed by it during the acceleration Company) or if the Company is acting as its own Paying Agent, set aside, segregate and hold in trust in accordance with the Indenture an amount of money or securities sufficient to repurchase as of the Fundamental Change Repurchase Date all of the Notes to be repurchased as of such date at the Fundamental Change Repurchase Price. Subject to receipt of funds and/or Notes by the Trustee (except in the case of an acceleration resulting from a Default or other Paying Agent appointed by the Company in and subject to extension if necessary to comply with the provisions of the Investment Company Act of 1940), payment for Notes surrendered for repurchase (and not withdrawn) prior to the Close of Business on the Fundamental Change Repurchase Date will be made promptly after the later of (x) the Fundamental Change Repurchase Date with respect to such Note (provided the Holder has satisfied the conditions to the payment of the Fundamental Change Repurchase Price with respect in this Section 11.02), and (y) the time of book-entry transfer or the delivery of such Note to the Trustee (or other Paying Agent appointed by the Company) by the Holder thereof in the manner required by this Section 11.02 by mailing checks for the amount payable to the Holders of such Notes entitled thereto as they shall appear in the Note Register (in the case of certificated Notes) by wire transfer of immediately available funds to the account of the Depositary or its nominee (if the Notes are not in certificated form). The Trustee shall, promptly after such payment return to the Company any funds in excess of the Fundamental Change Repurchase Price.
(e) If the Trustee (or other Paying Agent appointed by the Company) holds money or securities sufficient to repurchase as of the Fundamental Change Repurchase Date all the Notes or portions thereof that are to be repurchased as of the Business Day following the Fundamental Change Repurchase Date, then on and after the Fundamental Change Repurchase Date (i) such Notes will cease to be Outstanding, (ii) interest (including Filing Additional Interest, if any) will cease to accrue on such Notes), whether or any instructions for not book-entry transfer of the Notes in compliance with has been made or the procedures of the Depositary shall be deemed to Notes have been cancelled, and, upon such return delivered to the Trustee or cancellationPaying Agent, as the case may be, and (iii) all other rights of the Holders of such Notes will terminate other than the right to receive the Fundamental Change Repurchase Notice with respect thereto shall be deemed to have been withdrawnPrice upon delivery or transfer of such Notes.
Appears in 2 contracts
Samples: Supplemental Indenture (Prospect Capital Corp), Supplemental Indenture (Prospect Capital Corp)
Repurchase at Option of Holders Upon a Fundamental Change. (a) If Subject to Section 15.02(f), if a Fundamental Change occurs at any time prior to the Maturity Datetime, each Holder shall have the right, at such Holder’s option, to require the Company to repurchase for cash all of such Holder’s Notes, or any portion of the principal amount thereof properly surrendered and not validly withdrawn pursuant to Section 15.03 that is equal to minimum denominations of $1,000 or an integral multiple of $1,000 in excess thereof1,000, on the date (the “Fundamental Change Repurchase Date”) specified by the Company that is not less than 20 calendar days Business Days or more than 35 calendar days Business Days following the date of the Fundamental Change Company Notice at a repurchase price equal to 100% of the principal amount thereof, plus accrued and unpaid interest thereon to, but excluding, the Fundamental Change Repurchase Date (the “Fundamental Change Repurchase Price”), unless the Fundamental Change Repurchase Date falls after a Regular Record Date but on or prior to the Interest Payment Date to which such Regular Record Date relates, in which case the Company shall instead pay the full amount of accrued and unpaid interest (to, but excluding, such Interest Payment Date) to Holders of record as of the close of business on such Regular Record Date on, or at the Company’s election, before such Interest Payment Date, and the Fundamental Change Repurchase Price shall be equal to 100% of the principal amount of Notes to be repurchased pursuant to this Article Article 15; provided that the Company shall not be required to repurchase, or to make an offer to repurchase, the Notes upon a Fundamental Change if a third party makes such an offer in the same manner, at the same time and otherwise in compliance with the requirements for an offer made by the Company as set forth in this Section 15.02 and such third party purchases all Notes properly surrendered and not validly withdrawn under its offer in the same manner, at the same time and otherwise in compliance with the requirements for an offer made by the Company as set forth in this Section 15.02.
(b) Repurchases of Notes under this Section Section 15.02 shall be made, at the option of the Holder thereof, upon:
(i) delivery to the Paying Agent or tender agent appointed to facilitate the repurchase (the “Tender Agent”) by a Holder of a duly completed notice (the “Fundamental Change Repurchase Notice”) in the form set forth in Attachment 2 to the Form of Note attached hereto as Exhibit A, if the Notes are Physical Notes, or in compliance with the Depositary’s applicable procedures for surrendering interests in Global Notes, if the Notes are Global Notes, in each case case, on or before the close of business on the Business Day immediately preceding the Fundamental Change Repurchase Date; and
(ii) delivery of the Notes, if the Notes are Physical Notes, to the Paying Agent or Tender Agent, as the case may be, at any time after delivery of the Fundamental Change Repurchase Notice (together with all necessary endorsements for transfer) at the Corporate Trust Office of the Paying Agent or the principal office of the Tender Agent located in the United States of America as notified by the Tender Agent to Holders and the Trustee, as applicableAgent, or book-entry transfer of the Notes, if the Notes are Global Notes, in compliance with the applicable procedures of the Depositary, in each case case, such delivery or transfer being a condition to receipt by the Holder of the Fundamental Change Repurchase Price therefor. The Fundamental Change Repurchase Notice in respect of any Physical Notes to be repurchased shall state:
(i) in the case of Physical Notes, the certificate numbers of the Notes to be delivered for repurchase;
(ii) the portion of the principal amount of Notes to be repurchased, which must be $1,000 or an integral multiple thereof; and
(iii) that the Notes are to be repurchased by the Company pursuant to the applicable provisions of the Notes and this Indenture; provided, however, that if . If the Notes are Global Notes, to exercise the Fundamental Change Repurchase Notice repurchase right, Holders must comply surrender their Notes in accordance with appropriate applicable Depositary procedures. Notwithstanding anything herein to the contrary, any Holder delivering to the Paying Agent or Tender Agent, as the case may be, the Fundamental Change Repurchase Notice contemplated by this Section Section 15.02 shall have the right to withdraw, in whole or in part, such Fundamental Change Repurchase Notice at any time prior to the close of business on the Business Day immediately preceding the Fundamental Change Repurchase Date by delivery of a written notice of withdrawal to the Paying Agent or Tender Agent, as the case may be, in accordance with Section Section 15.03, or in accordance with the customary procedures of the Depository with respect to Global Notes. The Paying Agent or Tender Agent, as the case may be, shall promptly notify the Company of the receipt by it of any Fundamental Change Repurchase Notice or written notice of withdrawal thereof.
(c) On or before the 20th Business Day after the occurrence of the effective date of a Fundamental Change, the Company shall provide to all Holders of Notes and the Trustee, the Conversion Agent (in the case of a Conversion Agent other than the Trustee) Trustee and the Paying Agent (in the case of a Paying Agent other than the Trustee) a notice (the “Fundamental Change Company Notice”) of the occurrence of the effective date of the Fundamental Change and of the resulting repurchase right at the option of the Holders arising as a result thereof. In the case of Physical Notes, such notice shall be by first class mail or, in the case of Global Notes, such notice shall be delivered in accordance with the applicable procedures of the Depositary. Simultaneously with providing such notice, the Company shall publish a notice containing the such information set forth in the Fundamental Change Company Notice on the Company’s website or through such other public medium as the Company may use at that time. Each Fundamental Change Company Notice shall specify:
(i) the events causing the Fundamental Change;
(ii) the effective date of the Fundamental Change;
(iii) the last date on which a Holder may exercise the repurchase right pursuant to this Article Article 15;
(iv) the Fundamental Change Repurchase Price;
(v) the Fundamental Change Repurchase Date;
(vi) the name and address of the Paying Agent or Tender Agent, as the case may be, and the Conversion Agent, if applicable;
(vii) if applicable, the Conversion Rate and any adjustments to the Conversion Rate as a result of the Fundamental Change (or related Make-Whole Fundamental Change);
(viii) that the Notes with respect to which a Fundamental Change Repurchase Notice has been delivered by a Holder may be converted only if the Holder validly withdraws the Fundamental Change Repurchase Notice in accordance with the terms of this Indenture; and
(ix) the procedures that Holders must follow to require the Company to repurchase their Notes. No failure of the Company to give the foregoing notices and no defect therein shall limit the Holders’ repurchase rights or affect the validity of the proceedings for the repurchase of the Notes pursuant to this Section Section 15.02. At the Company’s request, written request given at least five days prior to the date the Fundamental Change Company Notice two (2) Business Days before such notice is to be sent (or such shorter period as may shall be agreed acceptable to by the Trustee), the Trustee shall give such notice in the Company’s name and at the Company’s expense; provided, however, that, in all cases, the text of such Fundamental Change Company Notice shall be prepared by the Company.
(d) Notwithstanding anything to the contrary in this Article 15, the Company shall not be required to repurchase, or to make an offer to repurchase, the Notes upon a Fundamental Change if a third party makes such an offer in the same manner, at the same time and otherwise in compliance with the requirements for an offer made by the Company as set forth in this Article 15 and such third party purchases all Notes properly surrendered and not validly withdrawn under its offer in the same manner, at the same time and otherwise in compliance with the requirements for an offer made by the Company as set forth above.
(e) Notwithstanding the foregoing, no Notes may be repurchased by the Company on any date at the option of the Holders upon a Fundamental Change if the principal amount of the Notes has been accelerated, and such acceleration has not been rescinded, on or prior to such date (except in the case of an acceleration resulting from a Default by the Company in the payment of the Fundamental Change Repurchase Price with respect to such Notes). The Paying Agent or Tender Agent, as the case may be, will promptly return to the respective Holders thereof any Physical Notes held by it during the acceleration of the Notes (except in the case of an acceleration resulting from a Default by the Company in the payment of the Fundamental Change Repurchase Price with respect to such Notes), or any instructions for book-entry transfer of the Notes in compliance with the applicable procedures of the Depositary shall be deemed to have been cancelled, and, upon such return or cancellation, as the case may be, the Fundamental Change Repurchase Notice with respect thereto shall be deemed to have been withdrawn.
(f) Notwithstanding anything to the contrary in this Section 15.02, the Company shall not be required to send a Fundamental Change Company Notice, or offer to repurchase or repurchase any Notes, as set forth in this Article 15, in connection with a Fundamental Change occurring pursuant to clause (b)(A) or (B) of the definition thereof, if: (i) such Fundamental Change constitutes a Share Exchange Event whose Reference Property consists entirely of cash in U.S. dollars; (ii) immediately after such Fundamental Change, the Notes become immediately convertible (pursuant to Section 14.07 and, if applicable, Section 14.03) into consideration that consists solely of U.S. dollars in an amount per $1,000 principal amount of Notes that equals or exceeds the Fundamental Change Repurchase Price per $1,000 principal amount of Notes (calculated assuming that the same includes the maximum amount of accrued but unpaid interest payable as part of the Fundamental Change Repurchase Price for such Fundamental Change); and (iii) the Company timely sends the notice relating to such Fundamental Change required pursuant to Section 14.01(b)(iii). Any Fundamental Change with respect to which, in accordance with the provisions described in this Section 15.02(f), the Company does not offer to repurchase any Notes is referred to as herein as an “Exempted Fundamental Change.”
Appears in 2 contracts
Samples: Indenture (Omnicell, Inc.), Indenture (Tetra Tech Inc)
Repurchase at Option of Holders Upon a Fundamental Change. (a) If a Fundamental Change occurs at any time prior to the Maturity Datetime, each Holder shall have the right, at such Holder’s option, to require the Company to repurchase for cash all of such Holder’s Notes, or any portion thereof that is equal to minimum denominations of $1,000 or an integral multiple of $1,000 in excess thereof1,000, on the date (the “Fundamental Change Repurchase Date”) specified by the Company that is not less than 20 calendar days or more than 35 calendar days following the date of the Fundamental Change Company Notice at a repurchase price equal to 100% of the principal amount thereof, plus accrued and unpaid interest thereon to, but excluding, the Fundamental Change Repurchase Date (the “Fundamental Change Repurchase Price”), unless the Fundamental Change Repurchase Date falls after a Regular Record Date but on or prior to the Interest Payment Date to which such Regular Record Date relates, in which case the Company shall instead pay the full amount of accrued and unpaid interest (to, but excluding, such Interest Payment Date) to Holders of record as of such Regular Record Date, and the Fundamental Change Repurchase Price shall be equal to 100% of the principal amount of Notes to be repurchased pursuant to this Article 15; provided that . The Fundamental Change Repurchase Date shall be subject to postponement in order to allow the Company shall not be required to repurchase, or comply with applicable law as a result of changes to make an offer to repurchase, such applicable law occurring after the Notes upon a Fundamental Change if a third party makes such an offer in the same manner, at the same time and otherwise in compliance with the requirements for an offer made by the Company as set forth in date of this Section 15.02 and such third party purchases all Notes properly surrendered and not validly withdrawn under its offer in the same manner, at the same time and otherwise in compliance with the requirements for an offer made by the Company as set forth in this Section 15.02Indenture.
(b) Repurchases of Notes under this Section 15.02 shall be made, at the option of the Holder thereof, upon:
(i) delivery to the Paying Agent or tender agent appointed to facilitate the repurchase (the “Tender Agent”) by a Holder of a duly completed notice (the “Fundamental Change Repurchase Notice”) in the form set forth in Attachment 2 to the Form of Note attached hereto as Exhibit A, if the Notes are Physical Notes, or in compliance with the Depositary’s procedures for surrendering interests in Global Notes, if the Notes are Global Notes, in each case on or before the close of business on the Business Day immediately preceding the Fundamental Change Repurchase Date; and
(ii) delivery of the Notes, if the Notes are Physical Notes, to the Paying Agent or Tender Agent, as the case may be, at any time after delivery of the Fundamental Change Repurchase Notice (together with all necessary endorsements for transfer) and on or prior to the close of business on the Business Day immediately preceding the Fundamental Change Repurchase Date at the Corporate Trust Office office of the Paying Agent or the principal office of the Tender Agent located in the United States of America as notified by the Tender Agent to Holders and the Trustee, as applicableAgent, or book-entry transfer of the Notes, if the Notes are Global Notes, in compliance with the procedures of the Depositary, in each case such delivery being a condition to receipt by the Holder of the Fundamental Change Repurchase Price therefor. The Fundamental Change Repurchase Notice in respect of any Notes to be repurchased shall state:
(i) in the case of Physical Notes, the certificate numbers of the Notes to be delivered for repurchase;
(ii) the portion of the principal amount of Notes to be repurchased, which must be $1,000 or an integral multiple thereof; and
(iii) that the Notes are to be repurchased by the Company pursuant to the applicable provisions of the Notes and this Indenture; provided, however, that if the Notes are Global Notes, the Fundamental Change Repurchase Notice must comply with appropriate Depositary procedures. Notwithstanding anything herein to the contrary, any Holder delivering to the Paying Agent or Tender Agent, as the case may be, the Fundamental Change Repurchase Notice contemplated by this Section 15.02 shall have the right to withdraw, in whole or in part, such Fundamental Change Repurchase Notice at any time prior to the close of business on the Business Day immediately preceding the Fundamental Change Repurchase Date by delivery of a written notice of withdrawal to the Paying Agent or Tender Agent, as the case may be, in accordance with Section 15.03, or in accordance with the customary procedures of the Depository with respect to Global Notes. The Paying Agent or Tender Agent, as the case may be, shall promptly notify the Company of the receipt by it of any Fundamental Change Repurchase Notice or written notice of withdrawal thereof.
(c) On or before the 20th Business Day after the occurrence of the effective date of a Fundamental Change, the Company shall provide to all Holders of Notes and the Trustee, the Conversion Agent (in the case of a Conversion Agent other than the Trustee) and the Paying Agent (in the case of a Paying Agent other than the Trustee) a notice (the “Fundamental Change Company Notice”) of the occurrence of the effective date of the Fundamental Change and of the repurchase right at the option of the Holders arising as a result thereof. In the case of Physical Notes, such notice shall be by first class mail or, in the case of Global Notes, such notice shall be delivered in accordance with the applicable procedures of the Depositary. Simultaneously with providing such notice, the Company shall publish a notice containing the information set forth in the Fundamental Change Company Notice on the Company’s website or through such other public medium as the Company may use at that time. Each Fundamental Change Company Notice shall specify:
(i) the events causing the Fundamental Change;
(ii) the effective date of the Fundamental Change;
(iii) the last date on which a Holder may exercise the repurchase right pursuant to this Article 15;
(iv) the Fundamental Change Repurchase Price;
(v) the Fundamental Change Repurchase Date;
(vi) the name and address of the Paying Agent or Tender Agent, as the case may be, and the Conversion Agent, if applicable;
(vii) if applicable, the Conversion Rate and any adjustments to the Conversion Rate as a result of the Fundamental Change;
(viii) that the Notes with respect to which a Fundamental Change Repurchase Notice has been delivered by a Holder may be converted only if the Holder validly withdraws the Fundamental Change Repurchase Notice in accordance with the terms of this Indenture; and
(ix) the procedures that Holders must follow to require the Company to repurchase their Notes. No failure of the Company to give the foregoing notices and no defect therein shall limit the Holders’ repurchase rights or affect the validity of the proceedings for the repurchase of the Notes pursuant to this Section 15.02. At the Company’s request, given at least five days prior to the date the Fundamental Change Company Notice is to be sent (or such shorter period as may be agreed to by the Trustee), the Trustee shall give such notice in the Company’s name and at the Company’s expense; provided, however, that, in all cases, the text of such Fundamental Change Company Notice shall be prepared by the Company.
(d) Notwithstanding the foregoing, no Notes may be repurchased by the Company on any date at the option of the Holders upon a Fundamental Change if the principal amount of the Notes has been accelerated, and such acceleration has not been rescinded, on or prior to such date (except in the case of an acceleration resulting from a Default by the Company in the payment of the Fundamental Change Repurchase Price with respect to such Notes). The Paying Agent or Tender Agent, as the case may be, will promptly return to the respective Holders thereof any Physical Notes held by it during the acceleration of the Notes (except in the case of an acceleration resulting from a Default by the Company in the payment of the Fundamental Change Repurchase Price with respect to such Notes), or any instructions for book-entry transfer of the Notes in compliance with the procedures of the Depositary shall be deemed to have been cancelled, and, upon such return or cancellation, as the case may be, the Fundamental Change Repurchase Notice with respect thereto shall be deemed to have been withdrawn.
Appears in 2 contracts
Repurchase at Option of Holders Upon a Fundamental Change. (a) If a Fundamental Change occurs at any time prior to the Maturity Datetime, then each Holder Noteholder shall have the right, at such Holder’s option, to require the Company to repurchase for cash all of such Holder’s Notes, Notes or any portion thereof that is equal to minimum denominations of $1,000 or an integral a multiple of $1,000 in excess thereofprincipal amount, for cash on the date (the “Fundamental Change Repurchase Date”) specified by the Company that is not less than 20 calendar days or twenty (20) Business Days and not more than 35 calendar days following thirty-five (35) Business Days after the date of the Fundamental Change Company Notice (as defined below) at a repurchase price equal to 100% of the principal amount thereof, plus together with accrued and unpaid interest thereon to, but excluding, the Fundamental Change Repurchase Date (the “Fundamental Change Repurchase Price”), unless the Fundamental Change Repurchase Date falls after a Regular Record Date but on or prior to the Interest Payment Date to which such Regular Record Date relates, in which case the Company shall instead pay the full amount of accrued and unpaid interest (to, but excluding, such Interest Payment Date) to Holders of record as of such Regular Record Date, and the Fundamental Change Repurchase Price shall be equal to 100% of the principal amount of Notes to be repurchased pursuant to this Article 15; provided that the Company shall not be required to repurchase, or to make an offer to repurchase, the Notes upon a Fundamental Change if a third party makes such an offer in the same manner, at the same time and otherwise in compliance with the requirements for an offer made by the Company as set forth in this Section 15.02 and such third party purchases all Notes properly surrendered and not validly withdrawn under its offer in the same manner, at the same time and otherwise in compliance with the requirements for an offer made by the Company as set forth in this Section 15.02.
(b) . Repurchases of Notes under this Section 15.02 9.02 shall be made, at the option of the Holder thereof, upon:
(i) delivery to the Trustee (or other Paying Agent or tender agent appointed to facilitate by the repurchase (the “Tender Agent”Company) by a Holder of a duly completed notice (the “Fundamental Change Repurchase Notice”) in the form set forth in Attachment 2 on the reverse of the Note prior to the Form Close of Note attached hereto as Exhibit A, if the Notes are Physical Notes, or in compliance with the Depositary’s procedures for surrendering interests in Global Notes, if the Notes are Global Notes, in each case Business on or before the close of business on the Business Day immediately preceding the Fundamental Change Repurchase Date; and
(ii) delivery or book-entry transfer of the Notes, if the Notes are Physical Notes, to the Trustee (or other Paying Agent or Tender Agent, as appointed by the case may be, Company) at any time after delivery of the Fundamental Change Repurchase Notice (together with all necessary endorsements for transferendorsements) at the Corporate Trust Office of the Trustee (or other Paying Agent or the principal office of the Tender Agent located in the United States of America as notified appointed by the Tender Agent to Holders and the TrusteeCompany), as applicable, or book-entry transfer of the Notes, if the Notes are Global Notes, in compliance with the procedures of the Depositary, in each case such delivery being a condition to receipt by the Holder of the Fundamental Change Repurchase Price therefor; provided that such Fundamental Change Repurchase Price shall be so paid pursuant to this Section 9.02 only if the Note so delivered to the Trustee (or other Paying Agent appointed by the Company) shall conform in all respects to the description thereof in the related Fundamental Change Repurchase Notice. The Fundamental Change Repurchase Notice in respect of any Notes to be repurchased shall state:
(iA) in the case of Physical Notesif certificated, the certificate numbers of the Notes to be delivered for repurchase;
(iiB) the portion of the principal amount of Notes to be repurchased, which must be $1,000 or an integral multiple thereof; and
(iiiC) that the Notes are to be repurchased by the Company pursuant to the applicable provisions of the Notes and this Indenture; provided, however, that if . Any repurchase by the Notes are Global Notes, the Fundamental Change Repurchase Notice must comply with appropriate Depositary procedures. Notwithstanding anything herein Company contemplated pursuant to the contrary, any Holder delivering to the Paying Agent or Tender Agent, as the case may be, the Fundamental Change Repurchase Notice contemplated by provisions of this Section 15.02 9.02 shall have be consummated by the right delivery of the consideration to withdraw, in whole or in part, such Fundamental Change Repurchase Notice at any time prior to be received by the close Holder promptly following the later of business on the Business Day immediately preceding the Fundamental Change Repurchase Date by and the time of the book-entry transfer or delivery of a written notice of withdrawal to the Note. The Trustee (or other Paying Agent or Tender Agent, as appointed by the case may be, in accordance with Section 15.03, or in accordance with the customary procedures of the Depository with respect to Global Notes. The Paying Agent or Tender Agent, as the case may be, Company) shall promptly notify the Company of the receipt by it of any Fundamental Change Repurchase Notice or written notice of withdrawal thereofthereof in accordance with the provisions of Section 9.02(c). Any Note that is to be repurchased only in part shall be surrendered to the Trustee (with, if the Company or the Trustee so requires, due endorsement by, or a written instrument of transfer in form satisfactory to the Company and the Trustee duly executed by the Holder thereof or his attorney duly authorized in writing), and the Company shall execute, and the Trustee shall authenticate and make available for delivery to the Holder of such Note without service charge, a new Note or Notes, containing identical terms and conditions, each in an authorized denomination in aggregate principal amount equal to and in exchange for the unrepurchased portion of the principal of the Note so surrendered.
(cb) On or before the 20th Business Day twentieth day after the occurrence of the effective date of a any Fundamental Change, the Company shall provide to all Holders of record of the Notes and the Trustee, the Conversion Agent (in the case of a Conversion Agent other than the Trustee) Trustee and the Paying Agent (in the case of a Paying Agent other than the Trustee) a notice (the “Fundamental Change Company Notice”) of the occurrence of the effective date of the such Fundamental Change and of the repurchase right at the option of the Holders arising as a result thereof. In the case of Physical Notes, such notice Such mailing shall be by first class mail or, in the case of Global Notes, such notice shall be delivered in accordance with the applicable procedures of the Depositarymail. Simultaneously with providing such noticeFundamental Change Company Notice, the Company shall publish a notice containing the information set forth included therein once in the Fundamental Change Company Notice a newspaper of general circulation in The City of New York or publish such information on the Company’s website or through such other public medium as the Company may use at that such time. Each Fundamental Change Company Notice shall specify:
(i) the events causing the Fundamental Change;
(ii) the effective date of the Fundamental Change;
(iii) that the last date on which a Holder may must exercise the repurchase right pursuant on or prior to this Article 15the Close of Business on the Fundamental Change Repurchase Date;
(iv) the Fundamental Change Repurchase Price;
(v) the Fundamental Change Repurchase Date;
(vi) the name and address of the Paying Agent or Tender Agent, as the case may be, and the Conversion Exchange Agent, if applicable;
(vii) if applicable, the Conversion applicable Exchange Rate and any adjustments to the Conversion Rate as a result of the Fundamental Changeapplicable Exchange Rate;
(viii) that the Notes with respect to which a Fundamental Change Repurchase Notice has been delivered by a Holder may be converted exchanged only if the Holder validly withdraws the Fundamental Change Repurchase Notice in accordance with the terms of this Indenture; and
(ix) the procedures that Holders must follow to require the Company to repurchase their Notes. No failure of the Company to give the foregoing notices and no defect therein shall limit the HoldersNoteholders’ repurchase rights or affect the validity of the proceedings for the repurchase of the Notes pursuant to this Section 15.02. At the Company’s request, given at least five days prior 9.02.
(c) A Fundamental Change Repurchase Notice may be withdrawn by means of a written notice of withdrawal delivered to the date Paying Agent in accordance with the Fundamental Change Company Notice is at any time prior to be sent (or such shorter period as may be agreed the Close of Business on the Business Day prior to by the Trustee), the Trustee shall give such notice in the Company’s name and at the Company’s expense; provided, however, that, in all cases, the text of such Fundamental Change Company Notice shall be prepared by the Company.Repurchase Date, specifying:
(di) Notwithstanding the foregoing, no Notes may be repurchased by the Company on any date at the option of the Holders upon a Fundamental Change if the principal amount of the Notes has with respect to which such notice of withdrawal is being submitted;
(ii) if certificated Notes have been acceleratedissued, and the certificate numbers of the withdrawn Notes; and
(iii) the principal amount, if any, of such acceleration has Notes that remains subject to the original Fundamental Change Repurchase Notice, which portion must be in principal amounts of $1,000 or an integral multiple of $1,000; provided, however, that if the Notes are not been rescindedin certificated form, on the notice must comply with appropriate procedures of the Depositary.
(d) On or prior to such date 11:00 a.m. (except local time in The City of New York) on the case of an acceleration resulting from a Default second Business Day following the Fundamental Change Repurchase Date, the Company will deposit with the Trustee (or other Paying Agent appointed by the Company or if the Company is acting as its own Paying Agent, set aside, segregate and hold in trust in accordance with this Indenture) an amount of money sufficient to repurchase on the Fundamental Change Repurchase Date all of the Notes to be repurchased on such date at the Fundamental Change Repurchase Price. Subject to receipt of funds and/or Notes by the Trustee (or other Paying Agent appointed by the Company), payment for Notes surrendered for repurchase (and not withdrawn) prior to the Close of Business on the Fundamental Change Repurchase Date will be made promptly after the later of (x) the Fundamental Change Repurchase Date with respect to such Note (provided the Holder has satisfied the conditions to the payment of the Fundamental Change Repurchase Price with respect in Section 9.02), and (y) the time of book-entry transfer or the delivery of such Note to the Trustee (or other Paying Agent appointed by the Company) by the Holder thereof in the manner required by Section 9.02 by mailing checks for the amount payable to the Holders of such Notes)Notes entitled thereto as they shall appear in the Security Register, provided, however, that payments to the Depositary shall be made by wire transfer of immediately available funds to the account of the Depositary or its nominee. The Paying Agent or Tender AgentTrustee shall, as promptly after such payment and upon written demand by the case may beCompany, will promptly return to the respective Holders thereof Company any Physical Notes held by it during the acceleration of the Notes (except funds in the case of an acceleration resulting from a Default by the Company in the payment excess of the Fundamental Change Repurchase Price with respect Price.
(e) If the Trustee (or other Paying Agent appointed by the Company) holds money or securities sufficient to repurchase on the Fundamental Change Repurchase Date all the Notes or portions thereof that are to be purchased as of the second Business Day following the Fundamental Change Repurchase Date, then on and after the Fundamental Change Repurchase Date (i) such Notes will cease to be Outstanding, (ii) interest will cease to accrue on such Notes), and (iii) all other rights of the Holders of such Notes will terminate, whether or any instructions for not book-entry transfer of the Notes in compliance with has been made or the procedures of the Depositary shall be deemed to Notes have been cancelleddelivered to the Trustee or Paying Agent, and, upon such return or cancellation, as other than the case may be, right to receive the Fundamental Change Repurchase Notice with respect thereto shall be deemed to have been withdrawnPrice upon delivery of the Notes.
Appears in 2 contracts
Samples: Third Supplemental Indenture (Archstone Smith Operating Trust), Third Supplemental Indenture (Archstone Smith Operating Trust)
Repurchase at Option of Holders Upon a Fundamental Change. (a) If a Fundamental Change occurs at any time prior to the Maturity Date, each Holder shall have the right, at such Holder’s option, to require the Company to repurchase for cash all of such Holder’s Notes, or any portion of the principal amount thereof properly surrendered and not validly withdrawn pursuant to Section 15.03 that is equal to minimum denominations of $1,000 or an integral multiple of $1,000 in excess thereof1,000, on the date (the “Fundamental Change Repurchase Date”) specified by the Company that is not less than 20 calendar days Business Days or more than 35 calendar days Business Days following the date of the Fundamental Change Company Notice at a repurchase price equal to 100% of the principal amount thereof, plus accrued and unpaid interest thereon interest, if any, plus any remaining amounts that would be owed to, but excluding, the Fundamental Change Repurchase Maturity Date (the “Fundamental Change Repurchase Price”), unless the Fundamental Change Repurchase Date falls after a Regular Record Date but on or prior to the Interest Payment Date to which such Regular Record Date relates, in which case the Company shall instead pay the full amount of accrued and unpaid interest (to, but excluding, such Interest Payment Date) to Holders of record as of such Regular Record Date, and the Fundamental Change Repurchase Price shall be equal to 100% of the principal amount of Notes to be repurchased pursuant to this Article 15; provided that . The Fundamental Change Repurchase Date shall be subject to postponement in order to allow the Company shall not be required to repurchase, or to make an offer to repurchase, the Notes upon a Fundamental Change if a third party makes such an offer in the same manner, at the same time and otherwise in compliance comply with the requirements for an offer made by the Company as set forth in this Section 15.02 and such third party purchases all Notes properly surrendered and not validly withdrawn under its offer in the same manner, at the same time and otherwise in compliance with the requirements for an offer made by the Company as set forth in this Section 15.02applicable law.
(b) Repurchases of Notes under this Section 15.02 shall be made, at the option of the Holder thereof, upon:
(i) delivery to the Paying Agent or tender paying agent appointed to facilitate the repurchase (the “Tender Agent”) by a Holder of a duly completed notice (the “Fundamental Change Repurchase Notice”) in the form set forth in Attachment 2 to the Form of Note attached hereto as Exhibit A, if the Notes are Physical Notes, or in compliance with the Depositary’s procedures Applicable Procedures for surrendering interests in Global Notes, if the Notes are Global Notes, in each case on or before the close of business on the Business Day immediately preceding the Fundamental Change Repurchase Date; and
(ii) delivery of the Notes, if the Notes are Physical Notes, to the Paying Agent or Tender Agent, as the case may be, paying agent at any time after delivery of the Fundamental Change Repurchase Notice (together with all necessary endorsements for transfer) at the Corporate Trust Office of the Paying Agent or the principal office of the Tender Agent located in the United States of America as notified by the Tender Agent to Holders and the Trustee, as applicablepaying agent, or book-book- entry transfer of the Notes, if the Notes are Global Notes, in compliance with the procedures of the Depositary, in each case such delivery being a condition to receipt by the Holder of the Fundamental Change Repurchase Price therefor. The Fundamental Change Repurchase Notice in respect of any Notes to be repurchased shall state:
(iiii) in the case of Physical Notes, the certificate numbers of the Notes to be delivered for repurchase;
(iiiv) the portion of the principal amount of Notes to be repurchased, which must be in minimum denominations of $1,000 or an integral multiple thereof; and
(iiiv) that the Notes are to be repurchased by the Company pursuant to the applicable provisions of the Notes and this Indenture; provided, however, that if the Notes are Global Notes, the Fundamental Change Repurchase Notice must comply with appropriate Depositary proceduresthe Applicable Procedures. Notwithstanding anything herein to the contrary, any Holder delivering to the Paying Agent or Tender Agent, as the case may be, paying agent the Fundamental Change Repurchase Notice contemplated by this Section 15.02 shall have the right to withdraw, in whole or in part, such Fundamental Change Repurchase Notice at any time prior to the close of business on the Business Day immediately preceding the Fundamental Change Repurchase Date by delivery of a written notice of withdrawal to the Paying Agent or Tender Agent, as the case may be, paying agent in accordance with Section 15.03, or in accordance with the customary procedures of the Depository with respect to Global Notes. The Paying Agent or Tender Agent, as the case may be, paying agent shall promptly notify the Company of the receipt by it of any Fundamental Change Repurchase Notice or written notice of withdrawal thereof.
(c) On or before the 20th Business Day after the occurrence of the effective date of a Fundamental Change, the Company shall provide to all Holders of Notes and Notes, the Trustee, the Conversion Agent (in the case of a Conversion Agent if other than the Trustee) and the Paying Agent paying agent (in the case of a Paying Agent paying agent other than the Trustee) a written notice (the “Fundamental Change Company Notice”) of the occurrence of the effective date of the Fundamental Change and of the repurchase right at the option of the Holders arising as a result thereof. In the case of Physical Notes, such notice shall be by first class mail or, in the case of Global Notes, such notice shall be delivered in accordance with the applicable procedures Applicable Procedures of the Depositary. Simultaneously with providing such notice, the Company shall publish a notice containing the information set forth in the Fundamental Change Company Notice on the Company’s website or through such other public medium as the Company may use at that time. Each Fundamental Change Company Notice shall specify:
(i) the events causing the Fundamental Change;
(ii) the effective date of the Fundamental Change;
(iii) the last date on which a Holder may exercise the repurchase right pursuant to this Article 15;
(iv) the Fundamental Change Repurchase Price;
(v) the Fundamental Change Repurchase Date;
(vi) the name and address of the Paying Agent or Tender Agent, as the case may be, paying agent and the Conversion Agent, if applicable;
(vii) if applicable, the Conversion Rate and any adjustments to the Conversion Rate as a result of the Fundamental ChangeRate;
(viii) that the Notes with respect to which a Fundamental Change Repurchase Notice has been delivered by a Holder may be converted only if the Holder validly withdraws the Fundamental Change Repurchase Notice in accordance with the terms of this Indenture; and
(ix) the procedures that Holders must follow to require the Company to repurchase their Notes. No failure of the Company to give the foregoing notices and no defect therein shall limit the Holders’ repurchase rights or affect the validity of the proceedings for the repurchase of the Notes pursuant to this Section 15.02. Simultaneously with providing such notice, the Company will publish such information on its website or through such other public medium as the Company may use at that time. At the Company’s written request, given at least five days prior to the date the Fundamental Change Company Notice is to be sent (or such shorter period as may be agreed to by the Trustee)sent, the Trustee shall give such notice in the Company’s name and at the Company’s expense; provided, however, that, in all cases, the text of such Fundamental Change Company Notice shall be prepared by the Company.
(d) Notwithstanding the foregoing, no Notes may be repurchased by the Company on any date at the option of the Holders upon in connection with a Fundamental Change if the principal amount of the Notes has been accelerated, and such acceleration has not been rescinded, on or prior to such date (except in the case of an acceleration resulting from a Default by the Company in the payment of the Fundamental Change Repurchase Price with respect to such Notes). The Paying Agent or Tender Agent, as the case may be, paying agent will promptly return to the respective Holders thereof any Physical Notes held by it during the acceleration of the Notes (except in the case of an acceleration resulting from a Default by the Company in the payment of the Fundamental Change Repurchase Price with respect to such Notes), or any instructions for book-entry transfer of the Notes in compliance with the procedures of the Depositary Applicable Procedures shall be deemed to have been cancelled, and, upon such return or cancellation, as the case may be, the Fundamental Change Repurchase Notice with respect thereto shall be deemed to have been withdrawn.
(e) Notwithstanding anything to the contrary in this Indenture, the Company shall not be required to repurchase, or to make an offer to repurchase, the Notes upon a Fundamental Change if a third party makes such an offer in the same manner, at the same time and otherwise in compliance with the requirements for an offer made by the Company as set forth in this Article 15 (including, without limitation, the requirement to comply with applicable securities laws), and such third party purchases all Notes properly surrendered and not validly withdrawn under its offer in the same manner, at the same time and otherwise in compliance with the requirements for an offer made by the Company as set forth in this Article 15 (including the requirement to pay the Fundamental Change Repurchase Price on the later of the applicable Fundamental Change Repurchase Date and the time of book-entry transfer or delivery of the relevant Notes); provided that the Company shall continue to be obligated to (x) deliver the applicable Fundamental Change Repurchase Notice to the Holders (which Fundamental Change Repurchase Notice shall state that such third party shall make such an offer to purchase the Notes) and to simultaneously with such Fundamental Change Repurchase Notice publish a notice containing such information in a newspaper of general circulation in the City of New York or publish the information on the Company’s website or through such other public medium as the Company may use at that time, (y) comply with applicable securities laws as set forth in this Indenture in connection with any such purchase and (z) pay the applicable Fundamental Change Repurchase Price on the later of the applicable Fundamental Change Repurchase Date and the time of book-entry transfer or delivery of the relevant Notes in the event such third party fails to make such payment in such amount at such time.
(f) For purposes of this Article 15, the paying agent may be any agent, depositary, tender agent, paying agent or other agent appointed by the Company to accomplish the purposes set forth herein.
Appears in 2 contracts
Samples: Subscription Agreement (Kaleyra, Inc.), Subscription Agreement (GigCapital2, Inc.)
Repurchase at Option of Holders Upon a Fundamental Change. (a) If a Fundamental Change occurs at any time prior to the Maturity Datetime, each Holder shall have the right, at such Holder’s option, to require the Company to repurchase for cash all of such Holder’s Notes, or any portion thereof that is equal to minimum denominations of $1,000 or an integral multiple of $1,000 in excess thereof1,000, on the date (the “Fundamental Change Repurchase Date”) specified by the Company that is not less than 20 calendar days or more than 35 calendar days following the date of the Fundamental Change Company Notice at a repurchase price equal to 100% of the principal amount thereof, plus accrued and unpaid interest thereon to, but excluding, the Fundamental Change Repurchase Date (the “Fundamental Change Repurchase Price”), unless the Fundamental Change Repurchase Date falls after a Regular Record Date but on or prior to the Interest Payment Date to which such Regular Record Date relates, in which case the Company shall instead pay the full amount of accrued and unpaid interest (to, but excluding, such Interest Payment Date) to Holders of record as of such Regular Record Date, and the Fundamental Change Repurchase Price shall be equal to 100% of the principal amount of Notes to be repurchased pursuant to this Article 15; provided that the Company shall not be required to repurchase, or to make an offer to repurchase, the Notes upon a Fundamental Change if a third party makes such an offer in the same manner, at the same time and otherwise in compliance with the requirements for an offer made by the Company as set forth in this Section 15.02 and such third party purchases all Notes properly surrendered and not validly withdrawn under its offer in the same manner, at the same time and otherwise in compliance with the requirements for an offer made by the Company as set forth in this Section 15.02.
(b) Repurchases of Notes under this Section 15.02 shall be made, at the option of the Holder thereof, upon:
(i) delivery to the Paying Agent or tender agent appointed to facilitate the repurchase (the “Tender Agent”) by a Holder of a duly completed notice (the “Fundamental Change Repurchase Notice”) in the form set forth in Attachment 2 to the Form of Note attached hereto as Exhibit A, if the Notes are Physical Notes, or in compliance with the Depositary’s procedures for surrendering interests in Global Notes, if the Notes are Global Notes, in each case on or before the close of business on the second Business Day immediately preceding the Fundamental Change Repurchase Date; and
(ii) delivery of the Notes, if the Notes are Physical Notes, to the Paying Agent or Tender Agent, as the case may be, at any time after delivery of the Fundamental Change Repurchase Notice (together with all necessary endorsements for transfer) at the Corporate Trust Office of the Paying Agent or the principal office of the Tender Agent located in the United States of America as notified by the Tender Agent to Holders and the Trustee, as applicableAgent, or book-entry transfer of the Notes, if the Notes are Global Notes, in compliance with the procedures of the Depositary, in each case such delivery being a condition to receipt by the Holder of the Fundamental Change Repurchase Price therefor. The Fundamental Change Repurchase Notice in respect of any Notes to be repurchased shall state:
(i) in the case of Physical Notes, the certificate numbers of the Notes to be delivered for repurchase;
(ii) the portion of the principal amount of Notes to be repurchased, which must be $1,000 or an integral multiple thereof; and
(iii) that the Notes are to be repurchased by the Company pursuant to the applicable provisions of the Notes and this Indenture; provided, however, that if the Notes are Global Notes, the Fundamental Change Repurchase Notice must comply with appropriate Depositary procedures. Notwithstanding anything herein to the contrary, any Holder delivering to the Paying Agent or Tender Agent, as the case may be, the Fundamental Change Repurchase Notice contemplated by this Section 15.02 shall have the right to withdraw, in whole or in part, such Fundamental Change Repurchase Notice at any time prior to the close of business on the Business Day immediately preceding the Fundamental Change Repurchase Date by delivery of a written notice of withdrawal to the Paying Agent or Tender Agent, as the case may be, in accordance with Section 15.03, or in accordance with the customary procedures of the Depository with respect to Global Notes. The Paying Agent or Tender Agent, as the case may be, shall promptly notify the Company of the receipt by it of any Fundamental Change Repurchase Notice or written notice of withdrawal thereof.
(c) On or before the 20th Business Day calendar day after the occurrence of the effective date of a Fundamental Change, the Company shall provide to all Holders of Notes and the Trustee, the Conversion Agent (in the case of a Conversion Agent other than the Trustee) Trustee and the Paying Agent (in the case of a Paying Agent other than the Trustee) a notice (the “Fundamental Change Company Notice”) of the occurrence of the effective date of the Fundamental Change and of the repurchase right at the option of the Holders arising as a result thereof. In the case of Physical Notes, such notice shall be by first class mail or, in the case of Global Notes, such notice shall be delivered in accordance with the applicable procedures of the Depositary. Simultaneously with providing such notice, the Company shall publish a notice containing the information set forth in the Fundamental Change Company Notice in a newspaper of general circulation in The City of New York or publish such information on the Company’s website or through such other public medium as the Company may use at that time. Each Fundamental Change Company Notice shall specify:
(i) the events causing the Fundamental Change;
(ii) the effective date of the Fundamental Change;
(iii) the last date on which a Holder may exercise the repurchase right pursuant to this Article 15;
(iv) the Fundamental Change Repurchase Price;
(v) the Fundamental Change Repurchase Date;
(vi) the name and address of the Paying Agent or Tender Agent, as the case may be, and the Conversion Agent, if applicable;
(vii) if applicable, the Conversion Rate and any adjustments to the Conversion Rate as a result of the Fundamental ChangeRate;
(viii) that the Notes with respect to which a Fundamental Change Repurchase Notice has been delivered by a Holder may be converted only if the Holder validly withdraws the Fundamental Change Repurchase Notice in accordance with the terms of this Indenture; and
(ix) the procedures that Holders must follow to require the Company to repurchase their Notes. No failure of the Company to give the foregoing notices and no defect therein shall limit the Holders’ repurchase rights or affect the validity of the proceedings for the repurchase of the Notes pursuant to this Section 15.02. At the Company’s request, given at least five days prior to the date the Fundamental Change Company Notice is to be sent (or such shorter period as may be agreed to by the Trustee), the Trustee shall give such notice in the Company’s name and at the Company’s expense; provided, however, that, in all cases, the text of such Fundamental Change Company Notice shall be prepared by the Company.
(d) Notwithstanding the foregoing, no Notes may be repurchased by the Company on any date at the option of the Holders upon a Fundamental Change if the principal amount of the Notes has been accelerated, and such acceleration has not been rescinded, on or prior to such date (except in the case of an acceleration resulting from a Default by the Company in the payment of the Fundamental Change Repurchase Price with respect to such Notes). The Paying Agent or Tender Agent, as the case may be, will promptly return to the respective Holders thereof any Physical Notes held by it during the acceleration of the Notes (except in the case of an acceleration resulting from a Default by the Company in the payment of the Fundamental Change Repurchase Price with respect to such Notes), or any instructions for book-entry transfer of the Notes in compliance with the procedures of the Depositary shall be deemed to have been cancelled, and, upon such return or cancellation, as the case may be, the Fundamental Change Repurchase Notice with respect thereto shall be deemed to have been withdrawn.
Appears in 2 contracts
Samples: Indenture (New Whale Inc.), Indenture (World Wrestling Entertainmentinc)
Repurchase at Option of Holders Upon a Fundamental Change. (a) If a Fundamental Change occurs at any time prior to the Maturity Date, each Holder shall have the right, at such Holder’s option, to require the Company to repurchase for cash all of such Holder’s Notes, or any portion of the principal amount thereof that is equal to minimum denominations of $1,000 or an integral multiple of $1,000 in excess thereof, on the date (the “Fundamental Change Repurchase Date”) specified by the Company that is not less than 20 calendar days or more than 35 calendar days following the date of the Fundamental Change Company Notice (subject to extension to comply with applicable law), at a repurchase price equal to 100% of the principal amount thereof, plus accrued and unpaid interest thereon to, but excludingnot including, the Fundamental Change Repurchase Date (the “Fundamental Change Repurchase Price”), unless the Fundamental Change Repurchase Date falls after a Regular Record Date but on or prior to the Interest Payment Date to which such Regular Record Date relates, in which case the Company shall instead pay the full amount of accrued and unpaid interest (to, but excluding, such Interest Payment Date) to Holders of record as of such Regular Record Date, and the Fundamental Change Repurchase Price shall be equal to 100% of the principal amount of Notes to be repurchased purchased pursuant to this Article 15; provided that the Company shall not be required to repurchase, or to make an offer to repurchase, the Notes upon a Fundamental Change if a third party makes such an offer in the same manner, at the same time and otherwise in compliance with the requirements for an offer made by the Company as set forth in this Section 15.02 and such third party purchases all Notes properly surrendered and not validly withdrawn under its offer in the same manner, at the same time and otherwise in compliance with the requirements for an offer made by the Company as set forth in this Section 15.02.
(b) Repurchases of Notes under this Section 15.02 shall be made, at the option of the Holder thereof, upon:
(i) delivery to the Paying Agent or tender agent appointed to facilitate the repurchase (the “Tender Agent”) by a Holder of a duly completed notice (the “Fundamental Change Repurchase Notice”) in the form set forth in Attachment 2 to the Form of Note attached hereto as Exhibit A, if the Notes are Physical Certificated Notes, or in compliance with the Depositary’s procedures Applicable Procedures for surrendering interests in Global Notes, if the Notes are Global Notes, in each case on or before the close of business on the Business Day immediately preceding the Fundamental Change Repurchase Date; and
(ii) delivery of the Notes, if the Notes are Physical Certificated Notes, to the Paying Agent on or Tender Agent, as before the case may be, at any time after delivery close of business on the Business Day immediately preceding the Fundamental Change Repurchase Notice Date (together with all necessary endorsements for transfer) at the Corporate Trust Office of the Paying Agent or the principal office of the Tender Agent located in the United States of America as notified by the Tender Agent to Holders and the Trustee, as applicableAgent, or book-entry transfer of the Notes, if the Notes are Global Notes, in compliance with the procedures of the DepositaryApplicable Procedures, in each case such delivery being a condition to receipt by the Holder of the Fundamental Change Repurchase Price therefor. The Fundamental Change Repurchase Notice in respect of any Notes to be repurchased shall state:
(i) A. in the case of Physical Certificated Notes, the certificate numbers of the Notes to be delivered for repurchase;
(ii) B. the portion of the principal amount of Notes to be repurchased, which must be a minimum denomination of $1,000 or an integral multiple of $1,000 in excess thereof; and
(iii) C. that the Notes are to be repurchased by the Company pursuant to the applicable provisions of the Notes and this Indenture; provided, however, that if the Notes are Global Notes, the Fundamental Change Repurchase Notice must comply with appropriate Depositary proceduresthe Applicable Procedures. Notwithstanding anything herein to the contrary, any Holder delivering to the Paying Agent or Tender Agent, as the case may be, the Fundamental Change Repurchase Notice contemplated by this Section 15.02 shall have the right to withdraw, in whole or in part, such Fundamental Change Repurchase Notice at any time prior to the close of business on the Business Day immediately preceding the Fundamental Change Repurchase Date by delivery of a written notice of withdrawal to the Trustee and the Paying Agent or Tender Agent, as (if other than the case may be, Trustee) in accordance with Section 15.03. If a Holder has already delivered a Fundamental Change Repurchase Notice with respect to a Note, or such Holder may not surrender such Note for conversion until such Holder has validly withdrawn such Fundamental Change Repurchase Notice (or, in the case of a Global Note, has complied with the Applicable Procedures with respect to such a withdrawal) in accordance with the customary procedures terms of the Depository with respect to Global NotesSection 15.03. The Paying Agent or Tender Agent, as the case may be, shall promptly notify the Company of the receipt by it of any Fundamental Change Repurchase Notice or written notice of withdrawal thereof.
(c) On or before the 20th Business Day calendar day after the occurrence of the effective date of a Fundamental Change, the Company shall provide to all Holders of Notes and the Trustee, the Conversion Agent (in the case of a Conversion Agent if other than the Trustee) and the Paying Agent (in the case of a Paying Agent if other than the Trustee) a notice (the “Fundamental Change Company Notice”) of the occurrence of the effective date of the Fundamental Change and of the repurchase right at the option of the Holders arising as a result thereof. In the case of Physical Notes, such notice shall be by first class mail or, in the case of Global Notes, such notice shall be delivered in accordance with the applicable procedures of the Depositary. Simultaneously with providing such notice, the Company shall publish a notice containing the information set forth in the Fundamental Change Company Notice on the Company’s website or through such other public medium as the Company may use at that time. Each Fundamental Change Company Notice shall specify:
(i) the events causing the Fundamental Change;
(ii) the effective date of the Fundamental Change;
(iii) the last date on which a Holder may exercise the repurchase right pursuant to this Article 15;
(iv) the Fundamental Change Repurchase Price;
(v) the Fundamental Change Repurchase Date;
(vi) the name and address of the Paying Agent or Tender Agent, as the case may be, and the Conversion Agent, if applicable;
(vii) if applicable, the Conversion Rate and any adjustments to the Conversion Rate as a result of the Fundamental ChangeRate;
(viii) that the Notes with respect to which a Fundamental Change Repurchase Notice has been delivered by a Holder may be converted only if the Holder validly withdraws the Fundamental Change Repurchase Notice in accordance with the terms of this Indenture; andIndenture (or, in the case of a Global Note, complies with the Applicable Procedures with respect to such a withdrawal);
(ix) the procedures that Holders must follow to require the Company to repurchase their Notes; and
(x) the CUSIP numbers and the statement required in Section 2.09 hereto. No failure of Simultaneously with providing such Fundamental Change Company Notice, the Company to give shall issue a press release containing such information, disclose the foregoing notices and no defect therein shall limit information in a Current Report on Form 8-K or post such information on the Holders’ repurchase rights or affect the validity of the proceedings for the repurchase of the Notes pursuant to this Section 15.02Company’s website. At the Company’s written request, given at least five days prior to the date the Fundamental Change Company Notice is to be sent (or such shorter period as may be agreed to by the Trustee), the Trustee shall give such notice in the Company’s name and at the Company’s expense; provided, however, that, in all cases, the text of such Fundamental Change Company Notice shall be prepared by the Company. In such a case, the Company shall deliver such notice to the Trustee at least three Business Days prior to the date that the notice is required to be given to the Holders (unless a shorter notice period shall be agreed to by the Trustee), together with Officer’s Certificate requesting that the Trustee give such notice. Such notice shall be delivered to the Trustee, to the Paying Agent (if other than the Trustee) and to each Holder at its address shown in the Note Register (and to the beneficial owner as required by applicable law) or, in the case of Global Notes, in accordance with the Applicable Procedures. No failure of the Company to give the foregoing notices and no defect therein shall limit the Holders’ repurchase rights or affect the validity of the proceedings for the repurchase of the Notes pursuant to this Section 15.02.
(d) Notwithstanding the foregoing, no Notes may be repurchased by the Company on any date at the option of the Holders upon a Fundamental Change if the principal amount of the Notes has been accelerated, and such acceleration has not been rescinded, on or prior to such date (except in the case of an acceleration resulting from a Default by the Company in the payment of the Fundamental Change Repurchase Price with respect to such Notes). The Paying Agent or Tender Agent, as the case may be, will promptly return to the respective Holders thereof any Physical Certificated Notes held by it during the acceleration of the Notes (except in the case of an acceleration resulting from a Default by the Company in the payment of the Fundamental Change Repurchase Price with respect to such Notes), or any instructions for book-entry transfer of the Notes in compliance with the procedures of the Depositary Applicable Procedures shall be deemed to have been cancelled, and, upon such return or cancellation, as the case may be, the Fundamental Change Repurchase Notice with respect thereto shall be deemed to have been withdrawn. Notwithstanding anything to the contrary in this Section 15.02, the Company shall not be required to repurchase, or to make an offer to repurchase, Notes upon a Fundamental Change if:
(i) a third party makes the offer in the manner, at the times, and otherwise in compliance with the requirements set forth in this Indenture applicable to an offer by the Company to repurchase Notes upon a Fundamental Change and such third party purchases all Notes validly tendered and not withdrawn upon such offer in the manner and otherwise in compliance with such requirements; or
(ii) pursuant to clause (b) of the definition thereof (or a Fundamental Change pursuant to clause (a) which also results in a Fundamental Change pursuant to clause (b)), if (i) such Fundamental Change results in the Notes becoming convertible (pursuant to the provisions described in Section 14.07) into an amount of cash per Note that is greater than (x) the Fundamental Change Repurchase Price (assuming the maximum amount of accrued interest would be payable based on the latest possible Fundamental Change Repurchase Date), plus (y) to the extent that the 35th calendar day immediately following the effective date of such Fundamental Change is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date, the full amount of interest payable per Note on such Interest Payment Date and (ii) the Company provides timely notice of the Holders’ right to convert their Notes based on such Fundamental Change as described in Section 14.01(b)(iii) (the requirements set forth in clauses (i) and (ii) of this Section 15.02(d), the “Adequate Cash Conversion Provisions”).
Appears in 2 contracts
Samples: Indenture (Cable One, Inc.), Indenture (Cinemark Holdings, Inc.)
Repurchase at Option of Holders Upon a Fundamental Change. (a) If there shall occur a Fundamental Change occurs at any time prior to maturity of the Maturity DateNotes, each then the Holder shall have the right, at such Holder’s its option, to require the Company to repurchase the Notes for cash all of such Holder’s Notescash, or any portion thereof that is equal to minimum denominations of $1,000 or an integral multiple of $1,000 in excess thereofprincipal amount, on the date (the “Fundamental Change Repurchase Date”) specified by the Company that is not less than 20 calendar days or twenty (20) Business Days and not more than 35 calendar days following thirty five (35) Business Days after the date of the Fundamental Change Company Notice (as defined below) at a repurchase price equal to 100% of the principal amount thereof, plus together with accrued and unpaid interest thereon to, but excluding, the Fundamental Change Repurchase Date (the “Fundamental Change Repurchase Price”), unless the . If such Fundamental Change Repurchase Date falls after a Regular Record Date but for the payment of interest, and on or prior to the corresponding Interest Payment Date to which such Regular Record Date relatesDate, in which case the Company shall instead pay the principal amount to the Holder surrendering the Notes for repurchase pursuant to this Section 4.02, and pay the full amount of accrued and unpaid interest (to, but excluding, payable on such Interest Payment Date) Date to Holders the Holder on the close of record as of such Regular business on the corresponding Record Date, and the Fundamental Change Repurchase Price shall be equal to 100% of the principal amount of Notes to be repurchased pursuant to this Article 15; provided that the Company shall not be required to repurchase, or to make an offer to repurchase, the Notes upon a Fundamental Change if a third party makes such an offer in the same manner, at the same time and otherwise in compliance with the requirements for an offer made by the Company as set forth in this Section 15.02 and such third party purchases all Notes properly surrendered and not validly withdrawn under its offer in the same manner, at the same time and otherwise in compliance with the requirements for an offer made by the Company as set forth in this Section 15.02.
(b) . Repurchases of Notes under this Section 15.02 4.02 shall be made, at the option of the Holder holder thereof, upon:
(i) delivery to the Paying Agent or tender agent appointed to facilitate Company by the repurchase (the “Tender Agent”) by a Holder of a duly completed notice in the form set forth on the attached Exhibit II (the “Fundamental Change Repurchase Notice”) in the form set forth in Attachment 2 prior to the Form of Note attached hereto as Exhibit A, if the Notes are Physical Notes, or in compliance with the Depositary’s procedures for surrendering interests in Global Notes, if the Notes are Global Notes, in each case on or before the close of business on the second Business Day immediately preceding prior to the Fundamental Change Repurchase Date; and
(ii) delivery of the Notes, if the Notes are Physical Notes, to the Paying Agent or Tender Agent, as the case may be, Company at any time after delivery of the Fundamental Change Repurchase Notice (together with all necessary endorsements for transfer) at the Corporate Trust Office of the Paying Agent or the principal office of the Tender Agent located in the United States of America as notified by the Tender Agent to Holders and the Trusteeendorsements), as applicable, or book-entry transfer of the Notes, if the Notes are Global Notes, in compliance with the procedures of the Depositary, in each case such delivery being a condition to receipt by the Holder of the Fundamental Change Repurchase Price therefortherefore; provided that such Fundamental Change Repurchase Price shall be so paid pursuant to this Section 4.02 only if the Note so delivered to the Company shall conform in all respects to the description thereof in the related Fundamental Change Repurchase Notice. The Fundamental Change Repurchase Notice in respect of any Notes to be repurchased shall state:
(iA) in the case of Physical Notes, the certificate numbers of the Notes to be delivered for repurchasepurchase;
(iiB) the portion of the principal amount of the Notes to be repurchased, which must be $1,000 or an integral multiple thereof; and
(iiiC) that the Notes are to be repurchased by the Company pursuant to the applicable provisions of the Notes and Notes; Any purchase by the Company contemplated pursuant to the provisions of this Indenture; provided, however, that if Section 4.02 shall be consummated by the Notes are Global Notes, delivery of the consideration to be received by the Holder promptly following the later of the Fundamental Change Repurchase Notice must comply with appropriate Depositary proceduresDate and the time of the delivery of the Notes. Notwithstanding anything herein to the contrary, any the Holder delivering to the Paying Agent or Tender Agent, as the case may be, the Fundamental Change Repurchase Notice contemplated by this Section 15.02 4.02 shall have the right to withdraw, in whole or in part, such Fundamental Change Repurchase Notice at any time prior to the close of business on the second Business Day immediately preceding prior to the Fundamental Change Repurchase Date by delivery of a written notice of withdrawal to the Paying Agent or Tender Agent, as the case may be, Company in accordance with Section 15.03, or in accordance with the customary procedures of the Depository with respect to Global Notes. The Paying Agent or Tender Agent, as the case may be, shall promptly notify the Company of the receipt by it of any Fundamental Change Repurchase Notice or written notice of withdrawal thereof4.03 below.
(cb) On or before the 20th Business Day As promptly as practicable after the occurrence of the effective date for a Fundamental Change, and in no event more than five Business Days after the effective date of a the Fundamental Change, the Company shall provide mail to all Holders of Notes and the Trustee, the Conversion Agent (in the case of a Conversion Agent other than the Trustee) and the Paying Agent (in the case of a Paying Agent other than the Trustee) Holder a notice (the “Fundamental Change Company Notice”) of the occurrence of the effective date of the Fundamental Change and of the repurchase right at the option of the Holders Holder arising as a result thereof. In the case of Physical Notes, such notice Such mailing shall be by first class mail or, in the case of Global Notes, such notice shall be delivered in accordance with the applicable procedures of the Depositary. Simultaneously with providing such notice, the Company shall publish a notice containing the information set forth in the Fundamental Change Company Notice on the Company’s website or through such other public medium as the Company may use at that timemail. Each Fundamental Change Company Notice shall specify:
(i) the events causing the Fundamental Change;
(ii) the effective date of the Fundamental Change;
(iii) the last date on which a the Holder may exercise the repurchase right pursuant to this Article 15right;
(iv) the Fundamental Change Repurchase Price;
(v) the Fundamental Change Repurchase Date;
(vi) that the name and address Holder must exercise the repurchase right on or prior to the close of business on the Paying Agent or Tender Agent, as Fundamental Change Repurchase Date (the case may be, and the Conversion Agent, if applicable“Fundamental Change Expiration Time”);
(vii) if applicable, that the Conversion Rate and any adjustments Holder shall have the right to withdraw the Notes surrendered prior to the Conversion Rate as a result of the Fundamental Change;Change Expiration Time; and
(viii) that the Notes with respect to which a Fundamental Change Repurchase Notice has been delivered by a Holder may be converted only if the Holder validly withdraws the Fundamental Change Repurchase Notice in accordance with the terms of this Indenture; and
(ix) the procedures that Holders the Holder must follow to require the Company to repurchase their its Notes. No failure of the Company to give the foregoing notices and no defect therein shall limit the Holders’ Holder’s repurchase rights or affect the validity of the proceedings for the repurchase of the Notes pursuant to this Section 15.02. At the Company’s request, given at least five days prior to the date the Fundamental Change Company Notice is to be sent (or such shorter period as may be agreed to by the Trustee), the Trustee shall give such notice in the Company’s name and at the Company’s expense; provided, however, that, in all cases, the text of such Fundamental Change Company Notice shall be prepared by the Company4.02.
(dc) Notwithstanding the foregoing, no the Notes may not be repurchased by the Company on any date at the option of the Holders Holder upon a Fundamental Change if the principal amount of the Notes has been accelerated, and such acceleration has not been rescinded, on or prior to such date the Fundamental Change Repurchase Date (except in the case of an acceleration resulting from a Default default by the Company in the payment of the Fundamental Change Repurchase Price with respect to such the Notes). The Paying Agent or Tender Agent.
(d) In connection with any purchase offer, as the case may be, Company will promptly return (to the respective Holders thereof extent applicable):
(i) comply with the provisions of Rule 13e-4, Rule 14e-1 and any Physical Notes held by it during other tender offer rules under the acceleration of Exchange Act,
(ii) file a Schedule TO or any successor or similar schedule, if required under the Notes Exchange Act, and
(except iii) otherwise comply with all federal and state securities laws in the case of an acceleration resulting from a Default connection with any offer by the Company in to purchase the payment of the Fundamental Change Repurchase Price with respect to such Notes), or any instructions for book-entry transfer of the Notes in compliance with the procedures of the Depositary shall be deemed to have been cancelled, and, upon such return or cancellation, as the case may be, the Fundamental Change Repurchase Notice with respect thereto shall be deemed to have been withdrawn.
Appears in 2 contracts
Samples: Exchange Agreement (Albany International Corp /De/), Exchange Agreement (Albany International Corp /De/)
Repurchase at Option of Holders Upon a Fundamental Change. (a) If a Fundamental Change occurs at any time prior to the Maturity Datetime, then each Holder Noteholder shall have the right, at such Holder’s option, to require the Company to repurchase for cash all of such Holder’s Notes, Notes or any portion thereof that is equal to minimum denominations of $1,000 or an integral a multiple of $1,000 in excess thereofprincipal amount, for cash on the date (the “Fundamental Change Repurchase Date”) specified by the Company that is not less than 20 calendar days or twenty (20) Business Days and not more than 35 calendar days following thirty-five (35) Business Days after the date of the Fundamental Change Company Notice (as defined below) at a repurchase price equal to 100% of the principal amount thereof, plus together with accrued and unpaid interest thereon to, but excluding, the Fundamental Change Repurchase Date (the “Fundamental Change Repurchase Price”), unless the Fundamental Change Repurchase Date falls after a Regular Record Date but on or prior to the Interest Payment Date to which such Regular Record Date relates, in which case the Company shall instead pay the full amount of accrued and unpaid interest (to, but excluding, such Interest Payment Date) to Holders of record as of such Regular Record Date, and the Fundamental Change Repurchase Price shall be equal to 100% of the principal amount of Notes to be repurchased pursuant to this Article 15; provided that the Company shall not be required to repurchase, or to make an offer to repurchase, the Notes upon a Fundamental Change if a third party makes such an offer in the same manner, at the same time and otherwise in compliance with the requirements for an offer made by the Company as set forth in this Section 15.02 and such third party purchases all Notes properly surrendered and not validly withdrawn under its offer in the same manner, at the same time and otherwise in compliance with the requirements for an offer made by the Company as set forth in this Section 15.02.
(b) . Repurchases of Notes under this Section 15.02 9.02 shall be made, at the option of the Holder thereof, upon:
(i) delivery to the Trustee (or other Paying Agent or tender agent appointed to facilitate by the repurchase (the “Tender Agent”Company) by a Holder of a duly completed notice (the “Fundamental Change Repurchase Notice”) in the form set forth in Attachment 2 on the reverse of the Note prior to the Form of Note attached hereto as Exhibit A, if the Notes are Physical Notes, or in compliance with the Depositary’s procedures for surrendering interests in Global Notes, if the Notes are Global Notes, in each case on or before the close of business on the Business Day immediately preceding the Fundamental Change Repurchase Date; and
(ii) delivery or book-entry transfer of the Notes, if the Notes are Physical Notes, to the Trustee (or other Paying Agent or Tender Agent, as appointed by the case may be, Company) at any time after delivery of the Fundamental Change Repurchase Notice (together with all necessary endorsements for transferendorsements) at the Corporate Trust Office of the Trustee (or other Paying Agent or appointed by the principal office of the Tender Agent located Company) in the United States Borough of America as notified by the Tender Agent to Holders and the TrusteeManhattan, as applicable, or book-entry transfer of the Notes, if the Notes are Global Notes, in compliance with the procedures of the Depositary, in each case such delivery being a condition to receipt by the Holder of the Fundamental Change Repurchase Price therefor; provided that such Fundamental Change Repurchase Price shall be so paid pursuant to this Section 9.02 only if the Note so delivered to the Trustee (or other Paying Agent appointed by the Company) shall conform in all respects to the description thereof in the related Fundamental Change Repurchase Notice. The Fundamental Change Repurchase Notice in respect of any Notes to be repurchased shall state:
(iA) in the case of Physical Notesif certificated, the certificate numbers of the Notes to be delivered for repurchase;
(iiB) the portion of the principal amount of Notes to be repurchased, which must be $1,000 or an integral multiple thereof; and
(iiiC) that the Notes are to be repurchased by the Company pursuant to the applicable provisions of the Notes and this Second Supplemental Indenture; provided, however, that if . Any repurchase by the Notes are Global Notes, the Fundamental Change Repurchase Notice must comply with appropriate Depositary procedures. Notwithstanding anything herein Company contemplated pursuant to the contrary, any Holder delivering to the Paying Agent or Tender Agent, as the case may be, the Fundamental Change Repurchase Notice contemplated by provisions of this Section 15.02 9.02 shall have be consummated by the right delivery of the consideration to withdraw, in whole or in part, such Fundamental Change Repurchase Notice at any time prior to be received by the close Holder promptly following the later of business on the Business Day immediately preceding the Fundamental Change Repurchase Date by and the time of the book-entry transfer or delivery of a written notice of withdrawal to the Note. The Trustee (or other Paying Agent or Tender Agent, as appointed by the case may be, in accordance with Section 15.03, or in accordance with the customary procedures of the Depository with respect to Global Notes. The Paying Agent or Tender Agent, as the case may be, Company) shall promptly notify the Company of the receipt by it of any Fundamental Change Repurchase Notice or written notice of withdrawal thereofthereof in accordance with the provisions of Section 9.02(c). Any Note that is to be repurchased only in part shall be surrendered to the Trustee (with, if the Company or the Trustee so requires, due endorsement by, or a written instrument of transfer in form satisfactory to the Company and the Trustee duly executed by the Holder thereof or his attorney duly authorized in writing), and the Company shall execute, and the Trustee shall authenticate and make available for delivery to the Holder of such Note without service charge, a new Note or Notes, containing identical terms and conditions, each in an authorized denomination in aggregate principal amount equal to and in exchange for the unrepurchased portion of the principal of the Note so surrendered.
(cb) On or before the 20th Business Day twentieth day after the occurrence of the effective date of a any Fundamental Change, the Company shall provide to all Holders of record of the Notes and the Trustee, the Conversion Agent (in the case of a Conversion Agent other than the Trustee) Trustee and the Paying Agent (in the case of a Paying Agent other than the Trustee) a notice (the “Fundamental Change Company Notice”) of the occurrence of the effective date of the such Fundamental Change and of the repurchase right at the option of the Holders arising as a result thereof. In the case of Physical Notes, such notice Such mailing shall be by first class mail or, in the case of Global Notes, such notice shall be delivered in accordance with the applicable procedures of the Depositarymail. Simultaneously with providing such noticeFundamental Change Company Notice, the Company shall publish a notice containing the information set forth included therein once in the Fundamental Change Company Notice a newspaper of general circulation in The City of New York or publish such information on the Company’s website or through such other public medium as the Company may use at that such time. Each Fundamental Change Company Notice shall specify:
(i) the events causing the Fundamental Change;
(ii) the effective date of the Fundamental Change;
(iii) that the last date on which a Holder may must exercise the repurchase right pursuant on or prior to this Article 15the close of business on the Fundamental Change Repurchase Date;
(iv) the Fundamental Change Repurchase Price;
(v) the Fundamental Change Repurchase Date;
(vi) the name and address of the Paying Agent or Tender Agent, as the case may be, and the Conversion Exchange Agent, if applicable;
(vii) if applicable, the Conversion applicable Exchange Rate and any adjustments to the Conversion Rate as a result of the Fundamental Changeapplicable Exchange Rate;
(viii) that the Notes with respect to which a Fundamental Change Repurchase Notice has been delivered by a Holder may be converted exchanged only if the Holder validly withdraws the Fundamental Change Repurchase Notice in accordance with the terms of this Second Supplemental Indenture; and
(ix) the procedures that Holders must follow to require the Company to repurchase their Notes. No failure of the Company to give the foregoing notices and no defect therein shall limit the HoldersNoteholders’ repurchase rights or affect the validity of the proceedings for the repurchase of the Notes pursuant to this Section 15.02. At the Company’s request, given at least five days prior 9.02.
(c) A Fundamental Change Repurchase Notice may be withdrawn by means of a written notice of withdrawal delivered to the date Trustee and Paying Agent in accordance with the Fundamental Change Company Notice is at any time prior to be sent (or such shorter period as may be agreed the close of business on the Business Day prior to by the Trustee), the Trustee shall give such notice in the Company’s name and at the Company’s expense; provided, however, that, in all cases, the text of such Fundamental Change Company Notice shall be prepared by the Company.Repurchase Date, specifying:
(di) Notwithstanding the foregoing, no Notes may be repurchased by the Company on any date at the option of the Holders upon a Fundamental Change if the principal amount of the Notes has with respect to which such notice of withdrawal is being submitted;
(ii) if certificated Notes have been acceleratedissued, and the certificate numbers of the withdrawn Notes; and
(iii) the principal amount, if any, of such acceleration has Notes that remains subject to the original Fundamental Change Repurchase Notice, which portion must be in principal amounts of $1,000 or an integral multiple of $1,000; provided, however, that if the Notes are not been rescindedin certificated form, on the notice must comply with appropriate procedures of the Depositary.
(d) On or prior to such date 11:00 a.m. (except local time in The City of New York) on the case of an acceleration resulting from a Default second Business Day following the Fundamental Change Repurchase Date, the Company will deposit with the Trustee (or other Paying Agent appointed by the Company or if the Company is acting as its own Paying Agent, set aside, segregate and hold in trust in accordance with the Base Indenture as modified by this Second Supplemental Indenture) an amount of money sufficient to repurchase on the Fundamental Change Repurchase Date all of the Notes to be repurchased on such date at the Fundamental Change Repurchase Price. Subject to receipt of funds and/or Notes by the Trustee (or other Paying Agent appointed by the Company), payment for Notes surrendered for repurchase (and not withdrawn) prior to the close of business on the Fundamental Change Repurchase Date will be made promptly after the later of (x) the Fundamental Change Repurchase Date with respect to such Note (provided the Holder has satisfied the conditions to the payment of the Fundamental Change Repurchase Price with respect in Section 9.02), and (y) the time of book-entry transfer or the delivery of such Note to the Trustee (or other Paying Agent appointed by the Company) by the Holder thereof in the manner required by Section 9.02 by mailing checks for the amount payable to the Holders of such Notes)Notes entitled thereto as they shall appear in the Security Register, provided, however, that payments to the Depositary shall be made by wire transfer of immediately available funds to the account of the Depositary or its nominee. The Paying Agent or Tender AgentTrustee shall, as promptly after such payment and upon written demand by the case may beCompany, will promptly return to the respective Holders thereof Company any Physical Notes held by it during the acceleration of the Notes (except funds in the case of an acceleration resulting from a Default by the Company in the payment excess of the Fundamental Change Repurchase Price with respect Price.
(e) If the Trustee (or other Paying Agent appointed by the Company) holds money or securities sufficient to repurchase on the Fundamental Change Repurchase Date all the Notes or portions thereof that are to be purchased as of the second Business Day following the Fundamental Change Repurchase Date, then on and after the Fundamental Change Repurchase Date (i) such Notes will cease to be Outstanding, (ii) interest will cease to accrue on such Notes), and (iii) all other rights of the Holders of such Notes will terminate, whether or any instructions for not book-entry transfer of the Notes in compliance with has been made or the procedures of the Depositary shall be deemed to Notes have been cancelleddelivered to the Trustee or Paying Agent, and, upon such return or cancellation, as other than the case may be, right to receive the Fundamental Change Repurchase Notice with respect thereto shall be deemed to have been withdrawnPrice upon delivery of the Notes.
Appears in 2 contracts
Samples: Second Supplemental Indenture (Prologis, L.P.), Second Supplemental Indenture (Amb Property Lp)
Repurchase at Option of Holders Upon a Fundamental Change. (a) If a Fundamental Change (other than an Exempted Fundamental Change) occurs at any time prior to the Maturity Datetime, each Holder shall have the right, at such Holder’s option, to require the Company to repurchase for cash all of such Holder’s Notes, or any portion of the principal amount thereof that is equal to minimum denominations of $1,000 or an integral multiple of $1,000 in excess thereof1,000, on the date (the “Fundamental Change Repurchase Date”) specified by the Company that is not less than 20 calendar days Business Days or more than 35 calendar days Business Days following the date of the Fundamental Change Company Notice at a repurchase price equal to 100% of the principal amount thereof, plus accrued and unpaid interest thereon to, but excluding, the Fundamental Change Repurchase Date (the “Fundamental Change Repurchase Price”), unless the Fundamental Change Repurchase Date falls after a Regular Record Date but on or prior to the Interest Payment Date to which such Regular Record Date relates, in which case the Company shall instead pay the full amount of accrued and unpaid interest (to, but excludingnot including, such Interest Payment Date) to Holders of record as of such Regular Record Date, and the Fundamental Change Repurchase Price shall be equal to 100% of the principal amount of Notes to be repurchased pursuant to this Article 15; provided that . The Fundamental Change Repurchase Date shall be subject to postponement in order to allow the Company shall not be required to repurchase, or to make an offer to repurchase, the Notes upon a Fundamental Change if a third party makes such an offer in the same manner, at the same time and otherwise in compliance comply with the requirements for an offer made by the Company as set forth in this Section 15.02 and such third party purchases all Notes properly surrendered and not validly withdrawn under its offer in the same manner, at the same time and otherwise in compliance with the requirements for an offer made by the Company as set forth in this Section 15.02applicable law.
(b) Repurchases of Notes under this Section 15.02 shall be made, at the option of the Holder thereof, upon:
(i) delivery to the Paying Agent or the tender agent appointed to facilitate the repurchase (the “Tender Agent”) by a Holder of a duly completed notice (the “Fundamental Change Repurchase Notice”) in the form set forth in Attachment 2 to the Form of Note attached hereto as Exhibit A, if the Notes are Physical Notes, or in compliance with the Depositary’s procedures Applicable Procedures for surrendering interests in Global Notes, if the Notes are Global Notes, in each case on or before the close of business on the Business Day immediately preceding the Fundamental Change Repurchase Date; and
(ii) delivery of the Notes, if the Notes are Physical Notes, to the Paying Agent or Tender Agent, as the case may be, at any time after delivery of the Fundamental Change Repurchase Notice (together with all necessary endorsements for transfer) at the Corporate Trust Office office of the Paying Agent or the principal office of the Tender Agent located in the United States of America as notified by the Tender Agent to Holders and the Trustee, as applicableAgent, or book-entry transfer of the Notes, if the Notes are Global Notes, in compliance with the procedures of the Depositary, in each case such delivery being a condition to receipt by the Holder of the Fundamental Change Repurchase Price therefor. The Fundamental Change Repurchase Notice in respect of any Notes to be repurchased shall state:
(i) in the case of Physical Notes, the certificate numbers of the Notes to be delivered for repurchase;
(ii) the portion of the principal amount of Notes to be repurchased, which must be $1,000 or an integral multiple thereof; and
(iii) that the Notes are to be repurchased by the Company pursuant to the applicable provisions of the Notes and this Indenture; provided, however, that if the Notes are Global Notes, the Fundamental Change Repurchase Notice must comply with appropriate Depositary proceduresthe Applicable Procedures. Notwithstanding anything herein to the contrary, any Holder delivering to the Paying Agent or Tender Agent, as the case may be, tender agent the Fundamental Change Repurchase Notice contemplated by this Section 15.02 shall have the right to withdraw, in whole or in part, such Fundamental Change Repurchase Notice at any time prior to the close of business on the Business Day immediately preceding the Fundamental Change Repurchase Date by delivery of a written notice of withdrawal to the Paying Agent or Tender Agent, as the case may be, tender agent in accordance with Section 15.03, or in accordance with the customary procedures of the Depository with respect to Global Notes. The Paying Agent or Tender Agent, as the case may be, shall promptly notify the Company of the receipt by it of any Fundamental Change Repurchase Notice or written notice of withdrawal thereof.
(c) On or before the 20th Business Day after the occurrence of the effective date of a Fundamental Change, the Company shall provide to all Holders of Notes and Notes, the Trustee, the Conversion Agent (in the case of a Conversion Agent if other than the Trustee) and the Paying Agent (in the case of a Paying Agent other than the Trustee) a notice (the “Fundamental Change Company Notice”) of the occurrence of the effective date of the Fundamental Change and of the repurchase right at the option of the Holders arising as a result thereof. In the case of Physical Notes, such notice shall be by first class mail or, in the case of Global Notes, such notice shall be delivered in accordance with the applicable procedures Applicable Procedures of the Depositary. Simultaneously with providing such notice, the Company shall publish a notice containing the information set forth in the Fundamental Change Company Notice on the Company’s website or through such other public medium as the Company may use at that time. Each Fundamental Change Company Notice shall specify:
(i) the events causing the Fundamental Change;
(ii) the effective date of the Fundamental Change;
(iii) the last date on which a Holder may exercise the repurchase right pursuant to this Article 15;
(iv) the Fundamental Change Repurchase Price;
(v) the Fundamental Change Repurchase Date;
(vi) the name and address of the Paying Agent or Tender Agent, as the case may be, and the Conversion Agent, if applicable;
(vii) if applicable, the Conversion Rate and any adjustments to the Conversion Rate as a result of the related Make-Whole Fundamental ChangeChange and/or the 1% Provision;
(viii) that the Notes with respect to which a Fundamental Change Repurchase Notice has been delivered by a Holder may be converted only if the Holder validly withdraws the Fundamental Change Repurchase Notice in accordance with the terms of this Indenture; and
(ix) the procedures that Holders must follow to require the Company to repurchase their Notes. No failure of the Company to give the foregoing notices and no defect therein shall limit the Holders’ repurchase rights or affect the validity of the proceedings for the repurchase of the Notes pursuant to this Section 15.02. At the Company’s written request, given at least five days prior to the date the Fundamental Change Company Notice is to be sent (or such shorter period as may be agreed to by the Trustee)sent, the Trustee Paying Agent shall give such notice in the Company’s name and at the Company’s expense; provided, however, that, in all cases, the text of such Fundamental Change Company Notice shall be prepared by the Company.
(d) Notwithstanding the foregoing, no Notes may be repurchased by the Company on any date at the option of the Holders upon in connection with a Fundamental Change if the principal amount of the Notes has been accelerated, and such acceleration has not been rescinded, on or prior to such date (except in the case of an acceleration resulting from a Default by the Company in the payment of the Fundamental Change Repurchase Price with respect to such Notes). The Paying Agent or Tender Agent, as the case may be, will promptly return to the respective Holders thereof any Physical Notes held by it during the acceleration of the Notes (except in the case of an acceleration resulting from a Default by the Company in the payment of the Fundamental Change Repurchase Price with respect to such Notes), or any instructions for book-entry transfer of the Notes in compliance with the procedures of the Depositary Applicable Procedures shall be deemed to have been cancelled, and, upon such return or cancellation, as the case may be, the Fundamental Change Repurchase Notice with respect thereto shall be deemed to have been withdrawn.
(e) Notwithstanding anything to the contrary in this Indenture, the Company shall not be required to repurchase, or to make an offer to repurchase, the Notes upon a Fundamental Change if a third party makes such an offer in the same manner, at the same time and otherwise in compliance with the requirements for an offer made by the Company as set forth in this Article 15, and such third party purchases all Notes properly surrendered and not validly withdrawn under its offer in the same manner, at the same time and otherwise in compliance with the requirements for an offer made by the Company as set forth in this Article 15.
(f) Notwithstanding anything to the contrary in this Article 15, the Company shall not be required to send a Fundamental Change Company Notice, or offer to repurchase or repurchase Notes in connection with a Fundamental Change occurring pursuant to clause (b)(A) or (b)(B) (or pursuant to clause (a) or (d) that also constitutes a Fundamental Change occurring pursuant to clause (b)(A) or (b)(B)) of the definition thereof, if:
(i) such Fundamental Change constitutes a Share Exchange Event for which the Reference Property consists entirely of cash in U.S. dollars;
(ii) immediately after such Fundamental Change, the Notes become convertible (pursuant to the provisions described in Section 14.07 and, if applicable, Section 14.03) into consideration that consists solely of U.S. dollars in an amount per $1,000 principal amount of Notes that equals or exceeds the Fundamental Change Repurchase Price per $1,000 principal amount of the Notes (calculated assuming that the same includes the maximum amount of accrued but unpaid interest payable as part of the Fundamental Change Repurchase Price for such Fundamental Change); and
(iii) the Company timely sends notice of such Fundamental Change pursuant to Section 14.01(b)(iv).
(g) For purposes of this Article 15, the Paying Agent may be any agent, depositary, tender agent, paying agent or other agent appointed by the Company to accomplish the purposes set forth herein.
Appears in 2 contracts
Samples: Indenture (Alnylam Pharmaceuticals, Inc.), Indenture (Alnylam Pharmaceuticals, Inc.)
Repurchase at Option of Holders Upon a Fundamental Change. (a) If a Fundamental Change occurs at any time prior to the Maturity Datetime, then each Holder Noteholder shall have the right, at such Holderholder’s option, to require the Company to repurchase for cash all of such Holderholder’s Notes, Notes or any portion of the principal amount thereof that is equal to minimum denominations of $1,000 or an integral multiple of $1,000 in excess thereof1,000, for cash on the date (the “Fundamental Change Repurchase Date”) specified by the Company that is not less than 20 calendar twenty (20) days or and not more than 35 calendar thirty five (35) days following after the date of the Fundamental Change Repurchase Company Notice at a repurchase price equal to 100% of the principal amount thereof, plus together with accrued and unpaid interest (including Additional Interest, if any) and Extension Fees and Additional Extension Fees, if any, thereon to, but excluding, the Fundamental Change Repurchase Date (unless the Fundamental Change Repurchase Date is between a regular record date and the corresponding Interest Payment Date) (the “Fundamental Change Repurchase Price”), unless the Fundamental Change Repurchase Date falls after a Regular Record Date but on or prior to the Interest Payment Date to which such Regular Record Date relates, in which case the Company shall instead pay the full amount of accrued and unpaid interest (to, but excluding, such Interest Payment Date) to Holders of record as of such Regular Record Date, and the Fundamental Change Repurchase Price shall be equal to 100% of the principal amount of Notes to be repurchased pursuant to this Article 15; provided that the Company shall not be required to repurchase, or to make an offer to repurchase, the Notes upon a Fundamental Change if a third party makes such an offer in the same manner, at the same time and otherwise in compliance with the requirements for an offer made by the Company as set forth in this Section 15.02 and such third party purchases all Notes properly surrendered and not validly withdrawn under its offer in the same manner, at the same time and otherwise in compliance with the requirements for an offer made by the Company as set forth in this Section 15.02.
(b) . Repurchases of Notes under this Section 15.02 14.01 shall be made, at the option of the Holder holder thereof, upon:
(i) delivery to the Trustee (or other Paying Agent or tender agent appointed to facilitate by the repurchase (the “Tender Agent”Company) by a Holder holder of a duly completed notice (the “Fundamental Change Repurchase Notice”) in the form set forth in Attachment 2 on the reverse of the Note prior to the Form Close of Note attached hereto as Exhibit A, if the Notes are Physical Notes, or in compliance with the Depositary’s procedures for surrendering interests in Global Notes, if the Notes are Global Notes, in each case Business on or before the close of business on the Business Day immediately preceding the Fundamental Change Repurchase DateDate (the “Fundamental Change Expiration Time”); and
(ii) delivery or book-entry transfer of the Notes, if the Notes are Physical Notes, to the Trustee (or other Paying Agent or Tender Agent, as appointed by the case may be, Company) at any time after delivery of the Fundamental Change Repurchase Notice (together with all necessary endorsements for transferendorsements) at the Corporate Trust Office of the Trustee (or other Paying Agent or appointed by the principal office of the Tender Agent located Company) in the United States Borough of America as notified by the Tender Agent to Holders and the TrusteeManhattan, as applicable, or book-entry transfer of the Notes, if the Notes are Global Notes, in compliance with the procedures of the Depositary, in each case such delivery being a condition to receipt by the Holder holder of the Fundamental Change Repurchase Price therefor; provided that such Fundamental Change Repurchase Price shall be so paid pursuant to this Section 14.01 only if the Note so delivered to the Trustee (or other Paying Agent appointed by the Company) shall conform in all respects to the description thereof in the related Fundamental Change Repurchase Notice. The Fundamental Change Repurchase Notice in respect of any Notes to be repurchased shall state:
(iA) in the case of Physical Notesif certificated, the certificate numbers of the Notes to be delivered for repurchase;
(iiB) the portion of the principal amount of Notes to be repurchased, which must be $1,000 or an integral multiple thereof; , and
(iiiC) that the Notes are to be repurchased by the Company pursuant to the applicable provisions of the Notes and this the Indenture; provided, however, that if . Any purchase by the Notes are Global Notes, the Fundamental Change Repurchase Notice must comply with appropriate Depositary procedures. Notwithstanding anything herein Company contemplated pursuant to the contrary, any Holder delivering to the Paying Agent or Tender Agent, as the case may be, the Fundamental Change Repurchase Notice contemplated by provisions of this Section 15.02 14.01 shall have be consummated by the right delivery of the consideration to withdraw, in whole or in part, such Fundamental Change Repurchase Notice at any time prior to be received by the close holder promptly following the later of business on the Business Day immediately preceding the Fundamental Change Repurchase Date by and the time of the book-entry transfer or delivery of a written notice of withdrawal to the Note surrendered for repurchase. The Trustee (or other Paying Agent or Tender Agent, as appointed by the case may be, in accordance with Section 15.03, or in accordance with the customary procedures of the Depository with respect to Global Notes. The Paying Agent or Tender Agent, as the case may be, Company) shall promptly notify the Company of the receipt by it of any Fundamental Change Repurchase Notice or written notice of withdrawal thereofthereof in accordance with the provisions of Section 14.01(c). Any Note that is to be repurchased only in part shall be surrendered to the Trustee (with, if the Company or the Trustee so requires, due endorsement by, or a written instrument of transfer in form satisfactory to the Company and the Trustee duly executed by the holder thereof or his attorney duly authorized in writing), and the Company shall execute, and the Trustee shall authenticate and make available for delivery to the holder of such Note without service charge, a new Note or Notes, containing identical terms and conditions, each in an authorized denomination in aggregate principal amount equal to and in exchange for the unrepurchased portion of the principal amount of the Note so surrendered.
(cb) On or before the 20th Business Day tenth day after the occurrence of the effective date of a on which any Fundamental ChangeChange occurs or is effective, the Company shall provide to all Holders holders of record of the Notes and the Trustee, the Conversion Agent (in the case of a Conversion Agent other than the Trustee) Trustee and the Paying Agent (in the case of a Paying Agent other than the Trustee) a notice (the “Fundamental Change Repurchase Company Notice”) of the occurrence of the effective date of the such Fundamental Change and of the repurchase right at the option of the Holders holders arising as a result thereof. In the case of Physical Notes, such notice Such mailing shall be by first class mail or, in the case of Global Notes, such notice shall be delivered in accordance with the applicable procedures of the Depositarymail. Simultaneously with providing such noticeFundamental Change Repurchase Company Notice, the Company shall publish a notice containing the information set forth included therein in a newspaper of general circulation in The City of New York, or publish the Fundamental Change Company Notice information on the Company’s website or through such other public medium as the Company may use at that such time. Each Fundamental Change Repurchase Company Notice shall specify:
(i) the events causing the Fundamental Change;
(ii) the effective date of the Fundamental Change;
(iii) the Fundamental Change Repurchase Date and the last date on which a Holder holder may exercise the repurchase right pursuant to this Article 15right;
(iv) the Fundamental Change Repurchase Price;
(v) the Fundamental Change Repurchase Date;
(vi) the name and address of the Paying Agent or Tender Agent, as the case may be, and the Conversion Agent, if applicable;
(viivi) if applicable, the applicable Conversion Rate and any adjustments to the applicable Conversion Rate as a result of the Fundamental ChangeRate;
(viiivii) that the Notes with respect to which a Fundamental Change Repurchase Notice has been delivered by a Holder holder may be converted only if the Holder validly holder withdraws the Fundamental Change Repurchase Notice in accordance with the terms of this Indenture; andthe indenture;
(viii) that the holder must exercise the repurchase right before the Fundamental Change Expiration Time;
(ix) that the holder shall have the right to withdraw any Notes surrendered prior to the Fundamental Change Expiration Time, and
(x) the procedures that Holders holders must follow to require the Company to repurchase their Notes. No failure of the Company to give the foregoing notices and no defect therein shall limit the HoldersNoteholders’ repurchase rights or affect the validity of the proceedings for the repurchase of the Notes pursuant to this Section 15.02. At 14.01.
(c) A Fundamental Change Repurchase Notice may be withdrawn by means of a written notice of withdrawal delivered to the Company’s request, given Paying Agent in accordance with the Fundamental Change Repurchase Company Notice at least five days any time prior to the date Close of Business on the Business Day prior to the Fundamental Change Company Notice is to be sent Repurchase Date, specifying:
(or such shorter period as may be agreed to by the Trustee)i) if certificated Notes have been issued, the Trustee shall give certificate numbers of the withdrawn Notes,
(ii) the principal amount of the Note with respect to which such notice of withdrawal is being submitted, and
(iii) the principal amount, if any, of such Note that remains subject to the original Fundamental Change Repurchase Notice, which portion must be in the Company’s name and at the Company’s expenseprincipal amounts of $1,000 or an integral multiple of $1,000; provided, however, that, that if the Notes are not in all casescertificated form, the text notice must comply with appropriate procedures of such Fundamental Change Company Notice shall be prepared by the CompanyDepositary.
(d) Notwithstanding On or prior to 11:00 a.m. (local time in The City of New York) on the foregoingBusiness Day following the Fundamental Change Repurchase Date, no Notes may be repurchased the Company will deposit with the Trustee (or other Paying Agent appointed by the Company on any date at or if the option Company is acting as its own Paying Agent, set aside, segregate and hold in trust as provided in Section 5.04) an amount of money or securities sufficient to pay the Holders upon a Fundamental Change if the principal amount Repurchase Price on all of the Notes has been acceleratedto be repurchased. Subject to receipt of funds and/or Notes by the Trustee (or other Paying Agent appointed by the Company), payment for Notes surrendered for repurchase (and such acceleration has not been rescinded, on or withdrawn) prior to the Fundamental Change Expiration Time will be made promptly after the later of (x) the Fundamental Change Repurchase Date with respect to such date Note (except in provided the case of an acceleration resulting from a Default by holder has satisfied the Company in conditions to the payment of the Fundamental Change Repurchase Price with respect in Section 14.01) and (y) the time of book-entry transfer or the delivery of such Note to the Trustee (or other Paying Agent appointed by the Company) by the holder thereof in the manner required by Section 14.01 by mailing checks for the amount payable to the holders of such Notes)Notes entitled thereto as they shall appear in the Note Register, provided, however, that payments to the Depositary shall be made by wire transfer of immediately available funds to the account of the Depositary or its nominee. The Paying Agent or Tender AgentTrustee shall, as promptly after such payment and upon written demand by the case may beCompany, will promptly return to the respective Holders thereof Company any Physical Notes held by it during the acceleration of the Notes (except funds in the case of an acceleration resulting from a Default by the Company in the payment excess of the Fundamental Change Repurchase Price with respect Price.
(e) If the Trustee (or other Paying Agent appointed by the Company) holds money or securities sufficient to repurchase on the Business Day following the Fundamental Change Repurchase Date all the Notes or portions thereof that are to be purchased as of the Business Day following the Fundamental Change Repurchase Date, then on and after the Fundamental Change Repurchase Date (i) such Notes will cease to be outstanding, (ii) interest (including Additional Interest, if any) will cease to accrue on such Notes), and (iii) all other rights of the holders of such Notes will terminate, whether or any instructions for not book-entry transfer of the Notes in compliance with has been made or the procedures of the Depositary shall be deemed to Notes have been cancelleddelivered to the Trustee or Paying Agent, and, upon such return or cancellation, as other than the case may be, right to receive the Fundamental Change Repurchase Notice with respect thereto shall be deemed to have been withdrawnPrice upon delivery of the Notes.
Appears in 2 contracts
Samples: Indenture (Cadence Design Systems Inc), Indenture (Cadence Design Systems Inc)
Repurchase at Option of Holders Upon a Fundamental Change. (a) If a Fundamental Change occurs at any time prior to the Maturity Datetime, then each Holder Noteholder shall have the right, at such Holder’s option, to require the Company to repurchase for cash all of such Holder’s Notes, Notes or any portion thereof that is equal to minimum denominations of $1,000 or an integral a multiple of $1,000 in excess thereofprincipal amount, for cash on the date (the “Fundamental Change Repurchase Date”) specified by the Company that is not less than 20 calendar days or twenty (20) Business Days and not more than 35 calendar days following thirty-five (35) Business Days after the date of the Fundamental Change Company Notice (as defined below) at a repurchase price equal to 100% of the principal amount thereof, plus together with accrued and unpaid interest thereon to, but excluding, the Fundamental Change Repurchase Date (the “Fundamental Change Repurchase Price”), unless the Fundamental Change Repurchase Date falls after a Regular Record Date but on or prior to the Interest Payment Date to which such Regular Record Date relates, in which case the Company shall instead pay the full amount of accrued and unpaid interest (to, but excluding, such Interest Payment Date) to Holders of record as of such Regular Record Date, and the Fundamental Change Repurchase Price shall be equal to 100% of the principal amount of Notes to be repurchased pursuant to this Article 15; provided that the Company shall not be required to repurchase, or to make an offer to repurchase, the Notes upon a Fundamental Change if a third party makes such an offer in the same manner, at the same time and otherwise in compliance with the requirements for an offer made by the Company as set forth in this Section 15.02 and such third party purchases all Notes properly surrendered and not validly withdrawn under its offer in the same manner, at the same time and otherwise in compliance with the requirements for an offer made by the Company as set forth in this Section 15.02.
(b) . Repurchases of Notes under this Section 15.02 9.02 shall be made, at the option of the Holder thereof, upon:
(i) delivery to the Trustee (or other Paying Agent or tender agent appointed to facilitate by the repurchase (the “Tender Agent”Company) by a Holder of a duly completed notice (the “Fundamental Change Repurchase Notice”) in the form set forth in Attachment 2 on the reverse of the Note prior to the Form of Note attached hereto as Exhibit A, if the Notes are Physical Notes, or in compliance with the Depositary’s procedures for surrendering interests in Global Notes, if the Notes are Global Notes, in each case on or before the close of business on the Business Day immediately preceding the Fundamental Change Repurchase Date; and
(ii) delivery or book-entry transfer of the Notes, if the Notes are Physical Notes, to the Trustee (or other Paying Agent or Tender Agent, as appointed by the case may be, Company) at any time after delivery of the Fundamental Change Repurchase Notice (together with all necessary endorsements for transferendorsements) at the Corporate Trust Office of the Trustee (or other Paying Agent or appointed by the principal office of the Tender Agent located Company) in the United States Borough of America as notified by the Tender Agent to Holders and the TrusteeManhattan, as applicable, or book-entry transfer of the Notes, if the Notes are Global Notes, in compliance with the procedures of the Depositary, in each case such delivery being a condition to receipt by the Holder of the Fundamental Change Repurchase Price therefor; provided that such Fundamental Change Repurchase Price shall be so paid pursuant to this Section 9.02 only if the Note so delivered to the Trustee (or other Paying Agent appointed by the Company) shall conform in all respects to the description thereof in the related Fundamental Change Repurchase Notice. The Fundamental Change Repurchase Notice in respect of any Notes to be repurchased shall state:
(iA) in the case of Physical Notesif certificated, the certificate numbers of the Notes to be delivered for repurchase;
(iiB) the portion of the principal amount of Notes to be repurchased, which must be $1,000 or an integral multiple thereof; and
(iiiC) that the Notes are to be repurchased by the Company pursuant to the applicable provisions of the Notes and this Third Supplemental Indenture; provided, however, that if . Any repurchase by the Notes are Global Notes, the Fundamental Change Repurchase Notice must comply with appropriate Depositary procedures. Notwithstanding anything herein Company contemplated pursuant to the contrary, any Holder delivering to the Paying Agent or Tender Agent, as the case may be, the Fundamental Change Repurchase Notice contemplated by provisions of this Section 15.02 9.02 shall have be consummated by the right delivery of the consideration to withdraw, in whole or in part, such Fundamental Change Repurchase Notice at any time prior to be received by the close Holder promptly following the later of business on the Business Day immediately preceding the Fundamental Change Repurchase Date by and the time of the book-entry transfer or delivery of a written notice of withdrawal to the Note. The Trustee (or other Paying Agent or Tender Agent, as appointed by the case may be, in accordance with Section 15.03, or in accordance with the customary procedures of the Depository with respect to Global Notes. The Paying Agent or Tender Agent, as the case may be, Company) shall promptly notify the Company of the receipt by it of any Fundamental Change Repurchase Notice or written notice of withdrawal thereofthereof in accordance with the provisions of Section 9.02(c). Any Note that is to be repurchased only in part shall be surrendered to the Trustee (with, if the Company or the Trustee so requires, due endorsement by, or a written instrument of transfer in form satisfactory to the Company and the Trustee duly executed by the Holder thereof or his attorney duly authorized in writing), and the Company shall execute, and the Trustee shall authenticate and make available for delivery to the Holder of such Note without service charge, a new Note or Notes, containing identical terms and conditions, each in an authorized denomination in aggregate principal amount equal to and in exchange for the unrepurchased portion of the principal of the Note so surrendered.
(cb) On or before the 20th Business Day twentieth day after the occurrence of the effective date of a any Fundamental Change, the Company shall provide to all Holders of record of the Notes and the Trustee, the Conversion Agent (in the case of a Conversion Agent other than the Trustee) Trustee and the Paying Agent (in the case of a Paying Agent other than the Trustee) a notice (the “Fundamental Change Company Notice”) of the occurrence of the effective date of the such Fundamental Change and of the repurchase right at the option of the Holders arising as a result thereof. In the case of Physical Notes, such notice Such mailing shall be by first class mail or, in the case of Global Notes, such notice shall be delivered in accordance with the applicable procedures of the Depositarymail. Simultaneously with providing such noticeFundamental Change Company Notice, the Company shall publish a notice containing the information set forth included therein once in the Fundamental Change Company Notice a newspaper of general circulation in The City of New York or publish such information on the Company’s website or through such other public medium as the Company may use at that such time. Each Fundamental Change Company Notice shall specify:
(i) the events causing the Fundamental Change;
(ii) the effective date of the Fundamental Change;
(iii) that the last date on which a Holder may must exercise the repurchase right pursuant on or prior to this Article 15the close of business on the Fundamental Change Repurchase Date;
(iv) the Fundamental Change Repurchase Price;
(v) the Fundamental Change Repurchase Date;
(vi) the name and address of the Paying Agent or Tender Agent, as the case may be, and the Conversion Exchange Agent, if applicable;
(vii) if applicable, the Conversion applicable Exchange Rate and any adjustments to the Conversion Rate as a result of the Fundamental Changeapplicable Exchange Rate;
(viii) that the Notes with respect to which a Fundamental Change Repurchase Notice has been delivered by a Holder may be converted exchanged only if the Holder validly withdraws the Fundamental Change Repurchase Notice in accordance with the terms of this Third Supplemental Indenture; and
(ix) the procedures that Holders must follow to require the Company to repurchase their Notes. No failure of the Company to give the foregoing notices and no defect therein shall limit the HoldersNoteholders’ repurchase rights or affect the validity of the proceedings for the repurchase of the Notes pursuant to this Section 15.02. At the Company’s request, given at least five days prior 9.02.
(c) A Fundamental Change Repurchase Notice may be withdrawn by means of a written notice of withdrawal delivered to the date Trustee and Paying Agent in accordance with the Fundamental Change Company Notice is at any time prior to be sent (or such shorter period as may be agreed the close of business on the Business Day prior to by the Trustee), the Trustee shall give such notice in the Company’s name and at the Company’s expense; provided, however, that, in all cases, the text of such Fundamental Change Company Notice shall be prepared by the Company.Repurchase Date, specifying:
(di) Notwithstanding the foregoing, no Notes may be repurchased by the Company on any date at the option of the Holders upon a Fundamental Change if the principal amount of the Notes has with respect to which such notice of withdrawal is being submitted;
(ii) if certificated Notes have been acceleratedissued, and the certificate numbers of the withdrawn Notes; and
(iii) the principal amount, if any, of such acceleration has Notes that remains subject to the original Fundamental Change Repurchase Notice, which portion must be in principal amounts of $1,000 or an integral multiple of $1,000; provided, however, that if the Notes are not been rescindedin certificated form, on the notice must comply with appropriate procedures of the Depositary.
(d) On or prior to such date 11:00 a.m. (except local time in The City of New York) on the case of an acceleration resulting from a Default second Business Day following the Fundamental Change Repurchase Date, the Company will deposit with the Trustee (or other Paying Agent appointed by the Company or if the Company is acting as its own Paying Agent, set aside, segregate and hold in trust in accordance with the Base Indenture as modified by this Third Supplemental Indenture) an amount of money sufficient to repurchase on the Fundamental Change Repurchase Date all of the Notes to be repurchased on such date at the Fundamental Change Repurchase Price. Subject to receipt of funds and/or Notes by the Trustee (or other Paying Agent appointed by the Company), payment for Notes surrendered for repurchase (and not withdrawn) prior to the close of business on the Fundamental Change Repurchase Date will be made promptly after the later of (x) the Fundamental Change Repurchase Date with respect to such Note (provided the Holder has satisfied the conditions to the payment of the Fundamental Change Repurchase Price with respect in Section 9.02), and (y) the time of book-entry transfer or the delivery of such Note to the Trustee (or other Paying Agent appointed by the Company) by the Holder thereof in the manner required by Section 9.02 by mailing checks for the amount payable to the Holders of such Notes)Notes entitled thereto as they shall appear in the Security Register, provided, however, that payments to the Depositary shall be made by wire transfer of immediately available funds to the account of the Depositary or its nominee. The Paying Agent or Tender AgentTrustee shall, as promptly after such payment and upon written demand by the case may beCompany, will promptly return to the respective Holders thereof Company any Physical Notes held by it during the acceleration of the Notes (except funds in the case of an acceleration resulting from a Default by the Company in the payment excess of the Fundamental Change Repurchase Price with respect Price.
(e) If the Trustee (or other Paying Agent appointed by the Company) holds money or securities sufficient to repurchase on the Fundamental Change Repurchase Date all the Notes or portions thereof that are to be purchased as of the second Business Day following the Fundamental Change Repurchase Date, then on and after the Fundamental Change Repurchase Date (i) such Notes will cease to be Outstanding, (ii) interest will cease to accrue on such Notes), and (iii) all other rights of the Holders of such Notes will terminate, whether or any instructions for not book-entry transfer of the Notes in compliance with has been made or the procedures of the Depositary shall be deemed to Notes have been cancelleddelivered to the Trustee or Paying Agent, and, upon such return or cancellation, as other than the case may be, right to receive the Fundamental Change Repurchase Notice with respect thereto shall be deemed to have been withdrawnPrice upon delivery of the Notes.
Appears in 2 contracts
Samples: Third Supplemental Indenture (Prologis, L.P.), Third Supplemental Indenture (Amb Property Lp)
Repurchase at Option of Holders Upon a Fundamental Change. (a) If a Fundamental Change occurs at any time prior to the Maturity Datetime, then each Holder Noteholder shall have the right, at such Holder’s option, to require the Company to repurchase for cash all of such Holder’s Notes, Notes or any portion thereof that is equal to minimum denominations of $1,000 or an integral a multiple of $1,000 in excess thereofprincipal amount, for cash on the date (the “Fundamental Change Repurchase Date”) specified by the Company that is not less than 20 calendar days or twenty (20) Business Days and not more than 35 calendar days following thirty-five (35) Business Days after the date of the Fundamental Change Company Notice (as defined below) at a repurchase price equal to 100% of the principal amount thereof, plus together with accrued and unpaid interest thereon to, but excluding, the Fundamental Change Repurchase Date (the “Fundamental Change Repurchase Price”), unless the Fundamental Change Repurchase Date falls after a Regular Record Date but on or prior to the Interest Payment Date to which such Regular Record Date relates, in which case the Company shall instead pay the full amount of accrued and unpaid interest (to, but excluding, such Interest Payment Date) to Holders of record as of such Regular Record Date, and the Fundamental Change Repurchase Price shall be equal to 100% of the principal amount of Notes to be repurchased pursuant to this Article 15; provided that the Company shall not be required to repurchase, or to make an offer to repurchase, the Notes upon a Fundamental Change if a third party makes such an offer in the same manner, at the same time and otherwise in compliance with the requirements for an offer made by the Company as set forth in this Section 15.02 and such third party purchases all Notes properly surrendered and not validly withdrawn under its offer in the same manner, at the same time and otherwise in compliance with the requirements for an offer made by the Company as set forth in this Section 15.02.
(b) . Repurchases of Notes under this Section 15.02 9.02 shall be made, at the option of the Holder thereof, upon:
(i) delivery to the Trustee (or other Paying Agent or tender agent appointed to facilitate by the repurchase (the “Tender Agent”Company) by a Holder of a duly completed notice (the “Fundamental Change Repurchase Notice”) in the form set forth in Attachment 2 on the reverse of the Note prior to the Form of Note attached hereto as Exhibit A, if the Notes are Physical Notes, or in compliance with the Depositary’s procedures for surrendering interests in Global Notes, if the Notes are Global Notes, in each case on or before the close of business on the Business Day immediately preceding the Fundamental Change Repurchase Date; and
(ii) delivery or book-entry transfer of the Notes, if the Notes are Physical Notes, to the Trustee (or other Paying Agent or Tender Agent, as appointed by the case may be, Company) at any time after delivery of the Fundamental Change Repurchase Notice (together with all necessary endorsements for transferendorsements) at the Corporate Trust Office of the Trustee (or other Paying Agent appointed by the Company) in the Borough of Manhattan or the principal office City of the Tender Agent located in the United States of America as notified by the Tender Agent to Holders and the TrusteeBoston, as applicable, or book-entry transfer of the Notes, if the Notes are Global Notes, in compliance with the procedures of the Depositary, in each case such delivery being a condition to receipt by the Holder of the Fundamental Change Repurchase Price therefor; provided that such Fundamental Change Repurchase Price shall be so paid pursuant to this Section 9.02 only if the Note so delivered to the Trustee (or other Paying Agent appointed by the Company) shall conform in all respects to the description thereof in the related Fundamental Change Repurchase Notice. The Fundamental Change Repurchase Notice in respect of any Notes to be repurchased shall state:
(iA) in the case of Physical Notesif certificated, the certificate numbers of the Notes to be delivered for repurchase;
(iiB) the portion of the principal amount of Notes to be repurchased, which must be $1,000 or an integral multiple thereof; and
(iiiC) that the Notes are to be repurchased by the Company pursuant to the applicable provisions of the Notes and this Sixth Supplemental Indenture; provided, however, that if . Any repurchase by the Notes are Global Notes, the Fundamental Change Repurchase Notice must comply with appropriate Depositary procedures. Notwithstanding anything herein Company contemplated pursuant to the contrary, any Holder delivering to the Paying Agent or Tender Agent, as the case may be, the Fundamental Change Repurchase Notice contemplated by provisions of this Section 15.02 9.02 shall have be consummated by the right delivery of the consideration to withdraw, in whole or in part, such Fundamental Change Repurchase Notice at any time prior to be received by the close Holder promptly following the later of business on the Business Day immediately preceding the Fundamental Change Repurchase Date by and the time of the book-entry transfer or delivery of a written notice of withdrawal to the Note. The Trustee (or other Paying Agent or Tender Agent, as appointed by the case may be, in accordance with Section 15.03, or in accordance with the customary procedures of the Depository with respect to Global Notes. The Paying Agent or Tender Agent, as the case may be, Company) shall promptly notify the Company of the receipt by it of any Fundamental Change Repurchase Notice or written notice of withdrawal thereofthereof in accordance with the provisions of Section 9.02(c). Any Note that is to be repurchased only in part shall be surrendered to the Trustee (with, if the Company or the Trustee so requires, due endorsement by, or a written instrument of transfer in form satisfactory to the Company and the Trustee duly executed by the Holder thereof or his attorney duly authorized in writing), and the Company shall execute, and the Trustee shall authenticate and make available for delivery to the Holder of such Note without service charge, a new Note or Notes, containing identical terms and conditions, each in an authorized denomination in aggregate principal amount equal to and in exchange for the unrepurchased portion of the principal of the Note so surrendered.
(cb) On or before the 20th Business Day twentieth day after the occurrence of the effective date of a any Fundamental Change, the Company shall provide to all Holders of record of the Notes and the Trustee, the Conversion Agent (in the case of a Conversion Agent other than the Trustee) Trustee and the Paying Agent (in the case of a Paying Agent other than the Trustee) a notice (the “Fundamental Change Company Notice”) of the occurrence of the effective date of the such Fundamental Change and of the repurchase right at the option of the Holders arising as a result thereof. In the case of Physical Notes, such notice Such mailing shall be by first class mail or, in the case of Global Notes, such notice shall be delivered in accordance with the applicable procedures of the Depositarymail. Simultaneously with providing such noticeFundamental Change Company Notice, the Company shall publish a notice containing the information set forth included therein once in the Fundamental Change Company Notice a newspaper of general circulation in The City of New York or publish such information on the Company’s website or through such other public medium as the Company may use at that such time. Each Fundamental Change Company Notice shall specify:
(i) the events causing the Fundamental Change;
(ii) the effective date of the Fundamental Change;
(iii) that the last date on which a Holder may must exercise the repurchase right pursuant on or prior to this Article 15the close of business on the Fundamental Change Repurchase Date;
(iv) the Fundamental Change Repurchase Price;
(v) the Fundamental Change Repurchase Date;
(vi) the name and address of the Paying Agent or Tender Agent, as the case may be, and the Conversion Agent, if applicable;
(vii) if applicable, the applicable Conversion Rate and any adjustments to the applicable Conversion Rate as a result of the Fundamental ChangeRate;
(viii) that the Notes with respect to which a Fundamental Change Repurchase Notice has been delivered by a Holder may be converted only if the Holder validly withdraws the Fundamental Change Repurchase Notice in accordance with the terms of this Sixth Supplemental Indenture; and
(ix) the procedures that Holders must follow to require the Company to repurchase their Notes. No failure of the Company to give the foregoing notices and no defect therein shall limit the HoldersNoteholders’ repurchase rights or affect the validity of the proceedings for the repurchase of the Notes pursuant to this Section 15.02. At the Company’s request, given at least five days prior 9.02.
(c) A Fundamental Change Repurchase Notice may be withdrawn by means of a written notice of withdrawal delivered to the date Trustee and Paying Agent in accordance with the Fundamental Change Company Notice is at any time prior to be sent (or such shorter period as may be agreed the close of business on the Business Day prior to by the Trustee), the Trustee shall give such notice in the Company’s name and at the Company’s expense; provided, however, that, in all cases, the text of such Fundamental Change Company Notice shall be prepared by the Company.Repurchase Date, specifying:
(di) Notwithstanding the foregoing, no Notes may be repurchased by the Company on any date at the option of the Holders upon a Fundamental Change if the principal amount of the Notes has with respect to which such notice of withdrawal is being submitted;
(ii) if certificated Notes have been acceleratedissued, and the certificate numbers of the withdrawn Notes; and
(iii) the principal amount, if any, of such acceleration has Notes that remains subject to the original Fundamental Change Repurchase Notice, which portion must be in principal amounts of $1,000 or an integral multiple of $1,000; provided, however, that if the Notes are not been rescindedin certificated form, on the notice must comply with appropriate procedures of the Depositary.
(d) On or prior to such date 11:00 a.m. (except local time in The City of New York) on the case of an acceleration resulting from a Default second Business Day following the Fundamental Change Repurchase Date, the Company will deposit with the Trustee (or other Paying Agent appointed by the Company or if the Company is acting as its own Paying Agent, set aside, segregate and hold in trust in accordance with the Base Indenture as modified by this Sixth Supplemental Indenture) an amount of money sufficient to repurchase on the Fundamental Change Repurchase Date all of the Notes to be repurchased on such date at the Fundamental Change Repurchase Price. Subject to receipt of funds and/or Notes by the Trustee (or other Paying Agent appointed by the Company), payment for Notes surrendered for repurchase (and not withdrawn) prior to the close of business on the Fundamental Change Repurchase Date will be made promptly after the later of (x) the Fundamental Change Repurchase Date with respect to such Note (provided the Holder has satisfied the conditions to the payment of the Fundamental Change Repurchase Price with respect in Section 9.02), and (y) the time of book-entry transfer or the delivery of such Note to the Trustee (or other Paying Agent appointed by the Company) by the Holder thereof in the manner required by Section 9.02 by mailing checks for the amount payable to the Holders of such Notes)Notes entitled thereto as they shall appear in the Security Register, provided, however, that payments to the Depositary shall be made by wire transfer of immediately available funds to the account of the Depositary or its nominee. The Paying Agent or Tender AgentTrustee shall, as promptly after such payment and upon written demand by the case may beCompany, will promptly return to the respective Holders thereof Company any Physical Notes held by it during the acceleration of the Notes (except funds in the case of an acceleration resulting from a Default by the Company in the payment excess of the Fundamental Change Repurchase Price with respect Price.
(e) If the Trustee (or other Paying Agent appointed by the Company) holds money or securities sufficient to repurchase on the Fundamental Change Repurchase Date all the Notes or portions thereof that are to be purchased as of the second Business Day following the Fundamental Change Repurchase Date, then on and after the Fundamental Change Repurchase Date (i) such Notes will cease to be Outstanding, (ii) interest will cease to accrue on such Notes), and (iii) all other rights of the Holders of such Notes will terminate, whether or any instructions for not book-entry transfer of the Notes in compliance with has been made or the procedures of the Depositary shall be deemed to Notes have been cancelleddelivered to the Trustee or Paying Agent, and, upon such return or cancellation, as other than the case may be, right to receive the Fundamental Change Repurchase Notice with respect thereto shall be deemed to have been withdrawnPrice upon delivery of the Notes.
Appears in 2 contracts
Samples: Indenture (Prologis), Sixth Supplemental Indenture (Prologis)
Repurchase at Option of Holders Upon a Fundamental Change. (a) If a Fundamental Change occurs at any time prior to the Maturity Datetime, then each Holder Noteholder shall have the right, at such Holder’s option, to require the Company to repurchase for cash all of such Holder’s Notes, Notes or any portion thereof that is equal to minimum denominations of $1,000 or an integral a multiple of $1,000 in excess thereofprincipal amount, for cash on the date (the “Fundamental Change Repurchase Date”) specified by the Company that is not less than 20 calendar days or twenty (20) Business Days and not more than 35 calendar days following thirty-five (35) Business Days after the date of the Fundamental Change Company Notice (as defined below) at a repurchase price equal to 100% of the principal amount thereof, plus together with accrued and unpaid interest thereon to, but excluding, the Fundamental Change Repurchase Date (the “Fundamental Change Repurchase Price”), unless the Fundamental Change Repurchase Date falls after a Regular Record Date but on or prior to the Interest Payment Date to which such Regular Record Date relates, in which case the Company shall instead pay the full amount of accrued and unpaid interest (to, but excluding, such Interest Payment Date) to Holders of record as of such Regular Record Date, and the Fundamental Change Repurchase Price shall be equal to 100% of the principal amount of Notes to be repurchased pursuant to this Article 15; provided that the Company shall not be required to repurchase, or to make an offer to repurchase, the Notes upon a Fundamental Change if a third party makes such an offer in the same manner, at the same time and otherwise in compliance with the requirements for an offer made by the Company as set forth in this Section 15.02 and such third party purchases all Notes properly surrendered and not validly withdrawn under its offer in the same manner, at the same time and otherwise in compliance with the requirements for an offer made by the Company as set forth in this Section 15.02.
(b) . Repurchases of Notes under this Section 15.02 9.02 shall be made, at the option of the Holder thereof, upon:
(iA) delivery to the Trustee (or other Paying Agent or tender agent appointed to facilitate by the repurchase (the “Tender Agent”Company) by a Holder of a duly completed notice (the “Fundamental Change Repurchase Notice”) in the form set forth in Attachment 2 on the reverse of the Note prior to the Form of Note attached hereto as Exhibit A, if the Notes are Physical Notes, or in compliance with the Depositary’s procedures for surrendering interests in Global Notes, if the Notes are Global Notes, in each case on or before the close of business on the Business Day immediately preceding the Fundamental Change Repurchase Date; and
(iiB) delivery or book-entry transfer of the Notes, if the Notes are Physical Notes, to the Trustee (or other Paying Agent or Tender Agent, as appointed by the case may be, Company) at any time after delivery of the Fundamental Change Repurchase Notice (together with all necessary endorsements for transferendorsements) at the Corporate Trust Office of the Trustee (or other Paying Agent appointed by the Company) in the Borough of Manhattan or the principal office City of the Tender Agent located in the United States of America as notified by the Tender Agent to Holders and the TrusteeBoston, as applicable, or book-entry transfer of the Notes, if the Notes are Global Notes, in compliance with the procedures of the Depositary, in each case such delivery being a condition to receipt by the Holder of the Fundamental Change Repurchase Price therefor; provided that such Fundamental Change Repurchase Price shall be so paid pursuant to this Section 9.02 only if the Note so delivered to the Trustee (or other Paying Agent appointed by the Company) shall conform in all respects to the description thereof in the related Fundamental Change Repurchase Notice. The Fundamental Change Repurchase Notice in respect of any Notes to be repurchased shall state:
(iA) in the case of Physical Notesif certificated, the certificate numbers of the Notes to be delivered for repurchase;
(iiB) the portion of the principal amount of Notes to be repurchased, which must be $1,000 or an integral multiple thereof; and
(iiiC) that the Notes are to be repurchased by the Company pursuant to the applicable provisions of the Notes and this Annex A of the Twelfth Supplemental Indenture; provided, however, that if . Any repurchase by the Notes are Global Notes, the Fundamental Change Repurchase Notice must comply with appropriate Depositary procedures. Notwithstanding anything herein Company contemplated pursuant to the contrary, any Holder delivering to the Paying Agent or Tender Agent, as the case may be, the Fundamental Change Repurchase Notice contemplated by provisions of this Section 15.02 9.02 shall have be consummated by the right delivery of the consideration to withdraw, in whole or in part, such Fundamental Change Repurchase Notice at any time prior to be received by the close Holder promptly following the later of business on the Business Day immediately preceding the Fundamental Change Repurchase Date by and the time of the book-entry transfer or delivery of a written notice of withdrawal to the Note. The Trustee (or other Paying Agent or Tender Agent, as appointed by the case may be, in accordance with Section 15.03, or in accordance with the customary procedures of the Depository with respect to Global Notes. The Paying Agent or Tender Agent, as the case may be, Company) shall promptly notify the Company of the receipt by it of any Fundamental Change Repurchase Notice or written notice of withdrawal thereofthereof in accordance with the provisions of Section 9.02(c). Any Note that is to be repurchased only in part shall be surrendered to the Trustee (with, if the Company or the Trustee so requires, due endorsement by, or a written instrument of transfer in form satisfactory to the Company and the Trustee duly executed by the Holder thereof or his attorney duly authorized in writing), and the Company shall execute, and the Trustee shall authenticate and make available for delivery to the Holder of such Note without service charge, a new Note or Notes, containing identical terms and conditions, each in an authorized denomination in aggregate principal amount equal to and in exchange for the unrepurchased portion of the principal of the Note so surrendered.
(cb) On or before the 20th Business Day twentieth day after the occurrence of the effective date of a any Fundamental Change, the Company shall provide to all Holders of record of the Notes and the Trustee, the Conversion Agent (in the case of a Conversion Agent other than the Trustee) Trustee and the Paying Agent (in the case of a Paying Agent other than the Trustee) a notice (the “Fundamental Change Company Notice”) of the occurrence of the effective date of the such Fundamental Change and of the repurchase right at the option of the Holders arising as a result thereof. In the case of Physical Notes, such notice Such mailing shall be by first class mail or, in the case of Global Notes, such notice shall be delivered in accordance with the applicable procedures of the Depositarymail. Simultaneously with providing such noticeFundamental Change Company Notice, the Company shall publish a notice containing the information set forth included therein once in the Fundamental Change Company Notice a newspaper of general circulation in The City of New York or publish such information on the Company’s website or through such other public medium as the Company may use at that such time. Each Fundamental Change Company Notice shall specify:
(iA) the events causing the Fundamental Change;
(iiB) the effective date of the Fundamental Change;
(iiiC) that the last date on which a Holder may must exercise the repurchase right pursuant on or prior to this Article 15the close of business on the Fundamental Change Repurchase Date;
(ivD) the Fundamental Change Repurchase Price;
(vE) the Fundamental Change Repurchase Date;
(viF) the name and address of the Paying Agent or Tender Agent, as the case may be, and the Conversion Exchange Agent, if applicable;
(viiG) if applicable, the Conversion applicable Exchange Rate and any adjustments to the Conversion Rate as a result of the Fundamental Changeapplicable Exchange Rate;
(viiiH) that the Notes with respect to which a Fundamental Change Repurchase Notice has been delivered by a Holder may be converted exchanged only if the Holder validly withdraws the Fundamental Change Repurchase Notice in accordance with the terms of this Annex A of the Twelfth Supplemental Indenture; and
(ixI) the procedures that Holders must follow to require the Company to repurchase their Notes. No failure of the Company to give the foregoing notices and no defect therein shall limit the HoldersNoteholders’ repurchase rights or affect the validity of the proceedings for the repurchase of the Notes pursuant to this Section 15.02. At the Company’s request, given at least five days prior 9.02.
(c) A Fundamental Change Repurchase Notice may be withdrawn by means of a written notice of withdrawal delivered to the date Trustee and Paying Agent in accordance with the Fundamental Change Company Notice is at any time prior to be sent (or such shorter period as may be agreed the close of business on the Business Day prior to by the Trustee), the Trustee shall give such notice in the Company’s name and at the Company’s expense; provided, however, that, in all cases, the text of such Fundamental Change Company Notice shall be prepared by the Company.Repurchase Date, specifying:
(dA) Notwithstanding the foregoing, no Notes may be repurchased by the Company on any date at the option of the Holders upon a Fundamental Change if the principal amount of the Notes has with respect to which such notice of withdrawal is being submitted;
(B) if certificated Notes have been acceleratedissued, and the certificate numbers of the withdrawn Notes; and
(C) the principal amount, if any, of such acceleration has Notes that remains subject to the original Fundamental Change Repurchase Notice, which portion must be in principal amounts of $1,000 or an integral multiple of $1,000; provided, however, that if the Notes are not been rescindedin certificated form, on the notice must comply with appropriate procedures of the Depositary.
(d) On or prior to such date 11:00 a.m. (except local time in The City of New York) on the case of an acceleration resulting from a Default second Business Day following the Fundamental Change Repurchase Date, the Company will deposit with the Trustee (or other Paying Agent appointed by the Company or if the Company is acting as its own Paying Agent, set aside, segregate and hold in trust in accordance with the Base Indenture as modified by this Annex A of the Twelfth Supplemental Indenture) an amount of money sufficient to repurchase on the Fundamental Change Repurchase Date all of the Notes to be repurchased on such date at the Fundamental Change Repurchase Price. Subject to receipt of funds and/or Notes by the Trustee (or other Paying Agent appointed by the Company), payment for Notes surrendered for repurchase (and not withdrawn) prior to the close of business on the Fundamental Change Repurchase Date will be made promptly after the later of (x) the Fundamental Change Repurchase Date with respect to such Note (provided the Holder has satisfied the conditions to the payment of the Fundamental Change Repurchase Price with respect in Section 9.02), and (y) the time of book-entry transfer or the delivery of such Note to the Trustee (or other Paying Agent appointed by the Company) by the Holder thereof in the manner required by Section 9.02 by mailing checks for the amount payable to the Holders of such Notes)Notes entitled thereto as they shall appear in the Security Register, provided, however, that payments to the Depositary shall be made by wire transfer of immediately available funds to the account of the Depositary or its nominee. The Paying Agent or Tender AgentTrustee shall, as promptly after such payment and upon written demand by the case may beCompany, will promptly return to the respective Holders thereof Company any Physical Notes held by it during the acceleration of the Notes (except funds in the case of an acceleration resulting from a Default by the Company in the payment excess of the Fundamental Change Repurchase Price with respect Price.
(e) If the Trustee (or other Paying Agent appointed by the Company) holds money or securities sufficient to repurchase on the Fundamental Change Repurchase Date all the Notes or portions thereof that are to be purchased as of the second Business Day following the Fundamental Change Repurchase Date, then on and after the Fundamental Change Repurchase Date (i) such Notes will cease to be Outstanding, (ii) interest will cease to accrue on such Notes), and (iii) all other rights of the Holders of such Notes will terminate, whether or any instructions for not book-entry transfer of the Notes in compliance with has been made or the procedures of the Depositary shall be deemed to Notes have been cancelleddelivered to the Trustee or Paying Agent, and, upon such return or cancellation, as other than the case may be, right to receive the Fundamental Change Repurchase Notice with respect thereto shall be deemed to have been withdrawnPrice upon delivery of the Notes.
Appears in 2 contracts
Samples: Supplemental Indenture (Prologis), Supplemental Indenture (Amb Property Lp)
Repurchase at Option of Holders Upon a Fundamental Change. (a) If a Fundamental Change occurs at any time prior to the Maturity Date, each Holder shall have the right, at such Holder’s option, right to require the Company to repurchase for cash all or part of such Holder’s Notes, or any portion Notes in a principal amount thereof that is equal to minimum denominations of $1,000 or an integral multiple of $1,000 in excess principal amount or whole multiples thereof, on the date (the “Fundamental Change Repurchase Date”) specified by the Company in the Fundamental Change Company Notice that is not less than 20 calendar days or nor more than 35 calendar days following after the date of the Fundamental Change Company Notice at a repurchase price price, payable in cash, equal to 100% of the principal amount thereofof the Notes being repurchased, plus accrued and unpaid interest thereon to, but excluding, the Fundamental Change Repurchase Date (the “Fundamental Change Repurchase Price”). However, unless the if such Fundamental Change Repurchase Date falls is after a Regular Record Date but and on or prior to the corresponding Interest Payment Date, the full amount of interest due shall be paid on the Interest Payment Date to which such the Holder of record on the Regular Record Date relates, in which case the Company shall instead pay the full amount of accrued and unpaid interest (to, but excluding, such Interest Payment Date) to Holders of record as of such Regular Record Date, and the Fundamental Change Repurchase Price shall be equal to 100% of the principal amount of Notes to be repurchased pursuant to this Article 15; provided that the Company shall not be required to repurchase, or to make an offer to repurchase, the Notes upon a Fundamental Change if a third party makes such an offer in the same manner, at the same time and otherwise in compliance with the requirements for an offer made by the Company as set forth in this Section 15.02 and such third party purchases all Notes properly surrendered and not validly withdrawn under its offer in the same manner, at the same time and otherwise in compliance with the requirements for an offer made by the Company as set forth in this Section 15.02.
(b) repurchased. Repurchases of Notes under this Section 15.02 3.01 shall be made, at the option of the Holder thereof, made upon:
(i1) delivery to the Paying Agent or tender agent appointed to facilitate the repurchase (the “Tender Agent”) by a Holder of a duly completed written notice (the “Fundamental Change Repurchase Notice”) of such Holder’s exercise of its repurchase right (together with the Notes to be repurchased, if certificated Notes have been issued) in the form set forth in Attachment 2 on the reverse of the Note prior to the Form of Note attached hereto as Exhibit A, if the Notes are Physical Notes, or in compliance with the Depositary’s procedures for surrendering interests in Global Notes, if the Notes are Global Notes, in each case on or before the close of business on the Business Day immediately preceding the Fundamental Change Repurchase DateDate (the “Fundamental Change Repurchase Expiration Time”); and
(ii2) delivery or book-entry transfer of the Notes, if the Notes are Physical Notes, to the Paying Agent or Tender Agent, as the case may be, at any time after delivery of the Fundamental Change Repurchase Notice (together with all necessary endorsements for transferendorsements) and prior to the Fundamental Change Repurchase Expiration Time, at the Corporate Trust Office of the Paying Agent or the principal office of the Tender Agent located in the United States of America as notified by the Tender Agent to Holders and the TrusteeAgent, as applicable, or book-entry transfer of the Notes, if the Notes are Global Notes, in compliance with the procedures of the Depositary, in each case such delivery being a condition to receipt by the Holder of the Fundamental Change Repurchase Price therefor; provided, that such Fundamental Change Repurchase Price shall be so paid pursuant to this Section 3.01 only if the Notes so delivered to the Paying Agent shall conform in all respects to the description thereof in the related Fundamental Change Repurchase Notice. The Fundamental Change Repurchase Notice in respect of any Notes to be repurchased shall state:
(i) in with respect to Global Notes, the case of Physical appropriate Depositary information and, with respect to certificated Notes, the certificate numbers numbers, if any, of the Notes to be delivered tendered for repurchase;
(ii) the portion of the principal amount of the Notes to be repurchased, which must be $1,000 or an integral multiple whole multiples thereof; and
(iii) that the Notes are to be repurchased by the Company pursuant to the applicable provisions of the Notes and this Indenture; provided, however, that if the Notes are Global Notes, . Payment of the Fundamental Change Repurchase Notice must comply with appropriate Depositary procedures. Notwithstanding anything herein to the contrary, any Holder delivering to the Paying Agent or Tender Agent, as the case may be, the Fundamental Change Repurchase Notice contemplated by this Section 15.02 shall have the right to withdraw, in whole or in part, such Fundamental Change Repurchase Notice at any time prior to the close of business on the Business Day immediately preceding the Fundamental Change Repurchase Date by delivery of a written notice of withdrawal to the Paying Agent or Tender Agent, as the case may be, in accordance with Section 15.03, or in accordance with the customary procedures of the Depository with respect to Global Notes. The Paying Agent or Tender Agent, as the case may be, shall promptly notify the Company of the receipt by it of any Fundamental Change Repurchase Notice or written notice of withdrawal thereof.
(c) On or before the 20th Business Day after the occurrence of the effective date of a Fundamental Change, the Company shall provide to all Holders of Price for Notes and the Trustee, the Conversion Agent (in the case of a Conversion Agent other than the Trustee) and the Paying Agent (in the case of a Paying Agent other than the Trustee) a notice (the “Fundamental Change Company Notice”) of the occurrence of the effective date of the Fundamental Change and of the repurchase right at the option of the Holders arising as a result thereof. In the case of Physical Notes, such notice shall be by first class mail or, in the case of Global Notes, such notice shall be delivered in accordance with the applicable procedures of the Depositary. Simultaneously with providing such notice, the Company shall publish a notice containing the information set forth in the Fundamental Change Company Notice on the Company’s website or through such other public medium as the Company may use at that time. Each Fundamental Change Company Notice shall specify:
(i) the events causing the Fundamental Change;
(ii) the effective date of the Fundamental Change;
(iii) the last date on which a Holder may exercise the repurchase right pursuant to this Article 15;
(iv) the Fundamental Change Repurchase Price;
(v) the Fundamental Change Repurchase Date;
(vi) the name and address of the Paying Agent or Tender Agent, as the case may be, and the Conversion Agent, if applicable;
(vii) if applicable, the Conversion Rate and any adjustments to the Conversion Rate as a result of the Fundamental Change;
(viii) that the Notes with respect to for which a Fundamental Change Repurchase Notice has been delivered by a Holder may be converted only if the Holder validly withdraws the Fundamental Change Repurchase Notice in accordance with the terms of this Indenture; and
(ix) the procedures that Holders must follow to require the Company to repurchase their Notes. No failure and not withdrawn is conditioned upon book-entry transfer or delivery of the Company to give the foregoing notices and no defect therein shall limit the Holders’ repurchase rights or affect the validity of the proceedings for the repurchase of the Notes pursuant to this Section 15.02. At the Company’s requestNotes, given at least five days prior together with necessary endorsements, to the date the Fundamental Change Company Notice is to be sent (or such shorter period as may be agreed to by the Trustee), the Trustee shall give such notice in the Company’s name and at the Company’s expense; provided, however, that, in all cases, the text of such Fundamental Change Company Notice shall be prepared by the Company.
(d) Notwithstanding the foregoing, no Notes may be repurchased by the Company on any date at the option of the Holders upon a Fundamental Change if the principal amount of the Notes has been accelerated, and such acceleration has not been rescinded, on or prior to such date (except in the case of an acceleration resulting from a Default by the Company in the payment Paying Agent. Payment of the Fundamental Change Repurchase Price with respect to such for the Notes shall be made on the later of the Fundamental Change Repurchase Date and the time of book-entry transfer or delivery of the Notes). The Paying Agent or Tender Agent, as the case may be, will promptly return . All questions as to the respective Holders thereof validity, eligibility (including time of receipt) and acceptance of any Physical Notes held by it during the acceleration of the Notes (except in the case of an acceleration resulting from a Default for repurchase shall be determined by the Company in the payment of the Fundamental Change Repurchase Price with respect to such Notes)Company, or any instructions for book-entry transfer of the Notes in compliance with the procedures of the Depositary whose determination shall be deemed to have been cancelled, and, upon such return or cancellation, as the case may be, the Fundamental Change Repurchase Notice with respect thereto shall be deemed to have been withdrawnfinal and binding absent manifest error.
Appears in 2 contracts
Repurchase at Option of Holders Upon a Fundamental Change. (a) If In the event a Fundamental Change occurs shall occur at any time prior to the Maturity Datewhen any Notes remain Outstanding, each Holder Noteholder shall have the right, at such Holderholder’s option, to require the Company to repurchase for cash purchase all of such Holder’s Notes, holders’ Notes or any portion of the principal amount thereof that is equal to minimum denominations of $1,000 or an integral multiple of $1,000 in excess thereof, thereof on a date specified by the date Company (the “Fundamental Change Repurchase Date”) specified by the Company that is not less than 20 calendar days or nor more than 35 calendar days following (or any longer period required by law) after the date of the Effective Date for such Fundamental Change Company Notice Change, at a repurchase purchase price in cash equal to 100% of the principal amount thereof, plus together with accrued and unpaid interest thereon to, but excluding, the Fundamental Change Repurchase Date (the “Fundamental Change Repurchase Price”), unless the . If such Fundamental Change Repurchase Date falls after a Regular Interest Record Date but and on or prior to the corresponding Interest Payment Date to which such Regular Record Date relatesDate, in which case the Company shall instead pay the principal amount to the Noteholders surrendering the Notes for repurchase pursuant to this Section 9.01, and pay the full amount of accrued and unpaid interest (to, but excluding, payable on such Interest Payment Date) Date to Holders the holder of record as on the close of such Regular business on the corresponding Interest Record Date, and the Fundamental Change Repurchase Price shall be equal to 100% of the principal amount of Notes to be repurchased pursuant to this Article 15; provided that the Company shall not be required to repurchase, or to make an offer to repurchase, the Notes upon a Fundamental Change if a third party makes such an offer in the same manner, at the same time and otherwise in compliance with the requirements for an offer made by the Company as set forth in this Section 15.02 and such third party purchases all Notes properly surrendered and not validly withdrawn under its offer in the same manner, at the same time and otherwise in compliance with the requirements for an offer made by the Company as set forth in this Section 15.02.
(b) . Repurchases of Notes under this Section 15.02 9.01 shall be mademade on the Fundamental Change Repurchase Date, at the option of the Holder holder thereof, upon:
(i) delivery to the Paying Agent or tender agent appointed to facilitate the repurchase (the “Tender Agent”) by a Holder Noteholder of a duly completed notice in the form set forth on the reverse of the Note as Exhibit C thereto (the “Fundamental Change Repurchase Notice”) in the form set forth in Attachment 2 to the Form of Note attached hereto as Exhibit A, if the Notes are Physical Notes, or in compliance with the Depositary’s procedures for surrendering interests in Global Notes, if the Notes are Global Notes, in each case on or before prior to the close of business on the Business Day immediately preceding the Fundamental Change Repurchase Date; and
(ii) delivery or book-entry transfer of the Notes, if the Notes are Physical Notes, to the Paying Agent or Tender Agent, as the case may be, at any time after delivery of the Fundamental Change Repurchase Notice (together with all necessary endorsements for transferendorsements) at the Corporate Trust Office corporate trust office of the Paying Agent or the principal office of the Tender Agent located in the United States of America as notified by the Tender Agent to Holders and the TrusteeStates, as applicable, or such book-entry transfer of the Notes, if the Notes are Global Notes, in compliance with the procedures of the Depositary, in each case such or delivery being a condition to receipt by the Holder holder of the Fundamental Change Repurchase Price therefor; provided that such Fundamental Change Repurchase Price shall be so paid pursuant to this Section 9.01 only if the Note so delivered to the Paying Agent shall conform in all respects to the description thereof in the related Fundamental Change Repurchase Notice. The Fundamental Change Repurchase Notice in respect of any Notes to be repurchased shall state:
(iA) in the case of Physical Notesif certificated, the certificate numbers of the Notes to be delivered for repurchase;
(iiB) the portion of the principal amount of Notes to be repurchased, which must be $1,000 or an integral multiple thereof; and
(iiiC) that the Notes are to be repurchased by the Company pursuant to the applicable provisions of the Notes and this Supplemental Indenture; provided, however, that if the Notes are Global Notesnot in certificated form, the Fundamental Change Repurchase Notice must comply with appropriate Depositary procedures. Notwithstanding anything herein to the contrary, any Holder delivering to the Paying Agent or Tender Agent, as the case may be, the Fundamental Change Repurchase Notice contemplated by this Section 15.02 shall have the right to withdraw, in whole or in part, such Fundamental Change Repurchase Notice at any time prior to the close of business on the Business Day immediately preceding the Fundamental Change Repurchase Date by delivery of a written notice of withdrawal to the Paying Agent or Tender Agent, as the case may be, in accordance with Section 15.03, or in accordance with the customary procedures of the Depository with respect to Global Notes. The Paying Agent or Tender Agent, as the case may be, shall promptly notify the Company of the receipt by it of any Fundamental Change Repurchase Notice or written notice of withdrawal thereof.
(c) On or before the 20th Business Day after the occurrence of the effective date of a Fundamental Change, the Company shall provide to all Holders of Notes and the Trustee, the Conversion Agent (in the case of a Conversion Agent other than the Trustee) and the Paying Agent (in the case of a Paying Agent other than the Trustee) a notice (the “Fundamental Change Company Notice”) of the occurrence of the effective date of the Fundamental Change and of the Any repurchase right at the option of the Holders arising as a result thereof. In the case of Physical Notes, such notice shall be by first class mail or, in the case of Global Notes, such notice shall be delivered in accordance with the applicable procedures of the Depositary. Simultaneously with providing such notice, the Company shall publish a notice containing the information set forth in the Fundamental Change Company Notice on the Company’s website or through such other public medium as the Company may use at that time. Each Fundamental Change Company Notice shall specify:
(i) the events causing the Fundamental Change;
(ii) the effective date of the Fundamental Change;
(iii) the last date on which a Holder may exercise the repurchase right pursuant to this Article 15;
(iv) the Fundamental Change Repurchase Price;
(v) the Fundamental Change Repurchase Date;
(vi) the name and address of the Paying Agent or Tender Agent, as the case may be, and the Conversion Agent, if applicable;
(vii) if applicable, the Conversion Rate and any adjustments to the Conversion Rate as a result of the Fundamental Change;
(viii) that the Notes with respect to which a Fundamental Change Repurchase Notice has been delivered by a Holder may be converted only if the Holder validly withdraws the Fundamental Change Repurchase Notice in accordance with the terms of this Indenture; and
(ix) the procedures that Holders must follow to require the Company to repurchase their Notes. No failure of the Company to give the foregoing notices and no defect therein shall limit the Holders’ repurchase rights or affect the validity of the proceedings for the repurchase of the Notes pursuant to this Section 15.02. At the Company’s request, given at least five days prior to the date the Fundamental Change Company Notice is to be sent (or such shorter period as may be agreed to by the Trustee), the Trustee shall give such notice in the Company’s name and at the Company’s expense; provided, however, that, in all cases, the text of such Fundamental Change Company Notice shall be prepared by the Company.
(d) Notwithstanding the foregoing, no Notes may be repurchased by the Company on any date at contemplated pursuant to the option provisions of the Holders upon a Fundamental Change if the principal amount of the Notes has been accelerated, and such acceleration has not been rescinded, on or prior to such date (except in the case of an acceleration resulting from a Default this Section 9.01 shall be consummated by the Company in the payment of the Fundamental Change Repurchase Price with respect to such Notes). The Paying Agent or Tender Agent, as promptly following the case may be, will promptly return to the respective Holders thereof any Physical Notes held by it during the acceleration later of the Notes (except in the case of an acceleration resulting from a Default by the Company in the payment of Business Day following the Fundamental Change Repurchase Price with respect to such Notes), or any instructions for Date and the time of the book-entry transfer or delivery of the Notes Note as described in compliance with the procedures of the Depositary shall be deemed to have been cancelled, and, upon such return or cancellation, as the case may be, the Fundamental Change Repurchase Notice with respect thereto shall be deemed to have been withdrawnSection 9.03(a).
Appears in 2 contracts
Samples: Supplemental Indenture (Energy Conversion Devices Inc), Supplemental Indenture (Energy Conversion Devices Inc)
Repurchase at Option of Holders Upon a Fundamental Change. (a) If a Fundamental Change occurs at any time prior to the Maturity Date, each Holder shall have the right, at such Holder’s option, to require the Company to repurchase for cash all of such Holder’s Notes, or any portion of the principal amount thereof that is equal to minimum denominations of $1,000 or an integral multiple of $1,000 in excess thereof, on the date (the “Fundamental Change Repurchase Date”) specified by the Company that is not less than 20 calendar days or nor more than 35 calendar days following the date of the Fundamental Change Company Notice (subject to extension to comply with applicable law), at a repurchase price equal to 100% of the principal amount thereof, plus accrued and unpaid interest thereon to, but excludingnot including, the Fundamental Change Repurchase Date (the “Fundamental Change Repurchase Price”), unless the Fundamental Change Repurchase Date falls after a Regular Record Date but on or prior to the Interest Payment Date to which such Regular Record Date relates, in which case the Company shall instead pay the full amount of accrued and unpaid interest (to, but excluding, such Interest Payment Date) to Holders of record as of such Regular Record Date, and the Fundamental Change Repurchase Price shall be equal to 100% of the principal amount of Notes to be repurchased purchased pursuant to this Article 15; provided that the Company shall not be required to repurchase, or to make an offer to repurchase, the Notes upon a Fundamental Change if a third party makes such an offer in the same manner, at the same time and otherwise in compliance with the requirements for an offer made by the Company as set forth in this Section 15.02 and such third party purchases all Notes properly surrendered and not validly withdrawn under its offer in the same manner, at the same time and otherwise in compliance with the requirements for an offer made by the Company as set forth in this Section 15.02.
(b) Repurchases of Notes under this Section 15.02 shall be made, at the option of the Holder thereof, upon:
(i) delivery to the Paying Agent or tender agent appointed to facilitate the repurchase (the “Tender Agent”) by a Holder of a duly completed notice (the “Fundamental Change Repurchase Notice”) in the form set forth in Attachment 2 to the Form of Note attached hereto as Exhibit A, if the Notes are Physical Certificated Notes, or in compliance with the Depositary’s procedures Applicable Procedures for surrendering interests in Global Notes, if the Notes are Global Notes, in each case on or before the close of business on the Business Day immediately preceding the Fundamental Change Repurchase Date; and
(ii) delivery of the Notes, if the Notes are Physical Certificated Notes, to the Paying Agent on or Tender Agent, as before the case may be, at any time after delivery close of business on the Business Day immediately preceding the Fundamental Change Repurchase Notice Date (together with all necessary endorsements for transfer) at the Corporate Trust Office of the Paying Agent or the principal office of the Tender Agent located in the United States of America as notified by the Tender Agent to Holders and the Trustee, as applicableAgent, or book-entry transfer of the Notes, if the Notes are Global Notes, in compliance with the procedures of the DepositaryApplicable Procedures, in each case such delivery being a condition to receipt by the Holder of the Fundamental Change Repurchase Price therefor. The Fundamental Change Repurchase Notice in respect of any Notes to be repurchased shall state:
(i) A. in the case of Physical Certificated Notes, the certificate numbers of the Notes to be delivered for repurchase;
(ii) B. the portion of the principal amount of Notes to be repurchased, which must be $1,000 or an integral multiple of $1,000 in excess thereof; and
(iii) C. that the Notes are to be repurchased by the Company pursuant to the applicable provisions of the Notes and this Indenture; provided, however, that if the Notes are Global Notes, the Fundamental Change Repurchase Notice must comply with appropriate Depositary proceduresthe Applicable Procedures. Notwithstanding anything herein to the contrary, any Holder delivering to the Paying Agent or Tender Agent, as the case may be, the Fundamental Change Repurchase Notice contemplated by this Section 15.02 shall have the right to withdraw, in whole or in part, such Fundamental Change Repurchase Notice at any time prior to the close of business on the Business Day immediately preceding the Fundamental Change Repurchase Date by delivery of a written notice of withdrawal to the Paying Agent or Tender Agent, as the case may be, in accordance with Section 15.03, or in accordance with the customary procedures of the Depository with respect to Global Notes. The Paying Agent or Tender Agent, as the case may be, shall promptly notify the Company of the receipt by it of any Fundamental Change Repurchase Notice or written notice of withdrawal thereof.
(c) On or before the 20th Business Day after the occurrence of the effective date of a Fundamental Change, the Company shall provide to all Holders of Notes and the Trustee, the Conversion Agent (in the case of a Conversion Agent other than the Trustee) and the Paying Agent (in the case of a Paying Agent other than the Trustee) a notice (the “Fundamental Change Company Notice”) of the occurrence of the effective date of the Fundamental Change and of the repurchase right at the option of the Holders arising as a result thereof. In the case of Physical Notes, such notice shall be by first class mail or, in the case of Global Notes, such notice shall be delivered in accordance with the applicable procedures of the Depositary. Simultaneously with providing such notice, the Company shall publish a notice containing the information set forth in the Fundamental Change Company Notice on the Company’s website or through such other public medium as the Company may use at that time. Each Fundamental Change Company Notice shall specify:
(i) the events causing the Fundamental Change;
(ii) the effective date of the Fundamental Change;
(iii) the last date on which a Holder may exercise the repurchase right pursuant to this Article 15;
(iv) the Fundamental Change Repurchase Price;
(v) the Fundamental Change Repurchase Date;
(vi) the name and address of the Paying Agent or Tender Agent, as the case may be, and the Conversion Agent, if applicable;
(vii) if applicable, the Conversion Rate and any adjustments to the Conversion Rate as a result of the Fundamental Change;
(viii) that the Notes with respect to which a Fundamental Change Repurchase Notice has been delivered by a Holder may be converted only if the Holder validly withdraws the Fundamental Change Repurchase Notice in accordance with the terms of this Indenture; and
(ix) the procedures that Holders must follow to require the Company to repurchase their Notes. No failure of the Company to give the foregoing notices and no defect therein shall limit the Holders’ repurchase rights or affect the validity of the proceedings for the repurchase of the Notes pursuant to this Section 15.02. At the Company’s request, given at least five days prior to the date the Fundamental Change Company Notice is to be sent (or such shorter period as may be agreed to by the Trustee), the Trustee shall give such notice in the Company’s name and at the Company’s expense; provided, however, that, in all cases, the text of such Fundamental Change Company Notice shall be prepared by the Company.
(d) Notwithstanding the foregoing, no Notes may be repurchased by the Company on any date at the option of the Holders upon a Fundamental Change if the principal amount of the Notes has been accelerated, and such acceleration has not been rescinded, on or prior to such date (except in the case of an acceleration resulting from a Default by the Company in the payment of the Fundamental Change Repurchase Price with respect to such Notes). The Paying Agent or Tender Agent, as the case may be, will promptly return to the respective Holders thereof any Physical Notes held by it during the acceleration of the Notes (except in the case of an acceleration resulting from a Default by the Company in the payment of the Fundamental Change Repurchase Price with respect to such Notes), or any instructions for book-entry transfer of the Notes in compliance with the procedures of the Depositary shall be deemed to have been cancelled, and, upon such return or cancellation, as the case may be, the Fundamental Change Repurchase Notice with respect thereto shall be deemed to have been withdrawn.
Appears in 2 contracts
Samples: Indenture (MARRIOTT VACATIONS WORLDWIDE Corp), Indenture (Verint Systems Inc)
Repurchase at Option of Holders Upon a Fundamental Change. (a) If a Fundamental Change (other than an Exempted Fundamental Change) occurs at any time prior to the Maturity DateDate of the Notes, each Holder shall have the right, at such Holder’s option, to require the Company to repurchase for cash all of such Holder’s Notes, or any portion of the principal thereof that is equal to minimum denominations of $1,000 or an integral multiple of $1,000 in excess thereof, on the date (the “Fundamental Change Repurchase Date”) specified by the Company that is not less than 20 calendar days or more than 35 calendar days following the date of the Fundamental Change Company Notice at a repurchase price equal to 100% of the principal amount thereof, plus accrued and unpaid interest thereon to, but excluding, the Fundamental Change Repurchase Date (the “Fundamental Change Repurchase Price”), unless the Fundamental Change Repurchase Date falls after a Regular Record Date but on or prior to the Interest Payment Date to which such Regular Record Date relates, in which case the Company shall instead pay the full amount of accrued and unpaid interest (to, but excluding, such Interest Payment Date) to Holders of record as of such Regular Record Date, and the Fundamental Change Repurchase Price shall be equal to 100% of the principal amount of Notes to be repurchased pursuant to this Article 15; provided that the Company shall not be required to repurchase, or to make an offer to repurchase, the Notes upon a Fundamental Change if a third party makes such an offer in the same manner, at the same time and otherwise in compliance with the requirements for an offer made by the Company as set forth in this Section 15.02 and such third party purchases all Notes properly surrendered and not validly withdrawn under its offer in the same manner, at the same time and otherwise in compliance with the requirements for an offer made by the Company as set forth in this Section 15.02.
(b) Repurchases of Notes under this Section 15.02 shall be made, at the option of the Holder thereof, upon:
(i) delivery to the Paying Agent or tender agent appointed to facilitate the repurchase (the “Tender Agent”) by a Holder of a duly completed notice (the “Fundamental Change Repurchase Notice”) in the form set forth in Attachment 2 to the Form of Note attached hereto as Exhibit ANote, if the Notes are Physical Notes, or in compliance with the Depositary’s procedures for surrendering interests in Global Notes, if the Notes are Global Notes, in each case on or before the close of business on the Business Day immediately preceding the Fundamental Change Repurchase Date; and
(ii) delivery of the Notes, if the Notes are Physical Notes, to the Paying Agent or Tender Agent, as the case may be, at any time after delivery of the Fundamental Change Repurchase Notice (together with all necessary endorsements for transfer) at the Corporate Trust Office of the Paying Agent or the principal office of the Tender Agent located in the United States of America as notified by the Tender Agent to Holders and the Trustee, as applicableAgent, or book-entry transfer of the Notes, if the Notes are Global Notes, in compliance with the procedures of the Depositary, in each case such delivery being a condition to receipt by the Holder of the Fundamental Change Repurchase Price therefor. The Fundamental Change Repurchase Notice in respect of any Notes to be repurchased shall state:
(i) in the case of Physical Notes, the certificate numbers of the Notes to be delivered for repurchase;
(ii) the portion of the principal amount of Notes to be repurchased, which must be a minimum denomination of $1,000 or an integral multiple in excess thereof; and
(iii) that the Notes are to be repurchased by the Company pursuant to the applicable provisions of the Notes and this Indenture; provided, however, that if the Notes are Global Notes, the Fundamental Change Repurchase Notice must comply with appropriate Depositary procedures. Notwithstanding anything herein to the contrary, any Holder delivering to the Paying Agent or Tender Agent, as the case may be, the Fundamental Change Repurchase Notice contemplated by this Section 15.02 shall have the right to withdraw, in whole or in part, such Fundamental Change Repurchase Notice at any time prior to the close of business on the Business Day immediately preceding the Fundamental Change Repurchase Date by delivery of a written notice of withdrawal to the Trustee and the Paying Agent or Tender Agent, as the case may be, in accordance with Section 15.0315.03 in the case of Physical Notes, or in accordance with through the customary applicable procedures of the Depository with respect to Depositary, in the case of Global Notes. The Paying Agent or Tender Agent, as the case may be, shall promptly notify the Company of the receipt by it of any Fundamental Change Repurchase Notice or written notice of withdrawal thereof.
(c) On or before the 20th Business Day after the occurrence of the effective date of a Fundamental Change, the Company shall provide to all Holders of Notes and the Trustee, the Conversion Agent (in the case of a Conversion Agent other than the Trustee) Trustee and the Paying Agent (in the case of a Paying Agent other than the Trustee) a notice (the “Fundamental Change Company Notice”) of the occurrence of the effective date of the Fundamental Change and of the repurchase right at the option of the Holders arising as a result thereof. In the case of Physical Notes, such notice shall be delivered by first class mail or, in the case of Global Notes, such notice shall be delivered in accordance with the applicable procedures of the Depositary. Simultaneously with providing such notice, the Company shall publish a notice containing the information set forth in the Fundamental Change Company Notice on the Company’s website website, through a press release or through such other public medium as the Company may use at that time. Each Fundamental Change Company Notice shall specify:
(i) the events causing the a Fundamental Change;
(ii) the effective date of the Fundamental Change;
(iii) the last date on which a Holder may exercise the repurchase right pursuant to this Article 15;
(iv) the Fundamental Change Repurchase Price;
(v) the Fundamental Change Repurchase Date;
(vi) the name and address of the Paying Agent or Tender Agent, as the case may be, and the Conversion Agent, if applicable;
(vii) if applicable, the Conversion Rate and any adjustments to the Conversion Rate as a result of the such Fundamental Change;
(viii) that the Notes with respect to which a Fundamental Change Repurchase Notice has been delivered by a Holder may be converted only if the Holder validly withdraws the Fundamental Change Repurchase Notice in accordance with the terms of this Indenture; and
(ix) the procedures that Holders must follow to require the Company to repurchase their Notes. No failure of the Company to give the foregoing notices and no defect therein shall limit the Holders’ repurchase rights or affect the validity of the proceedings for the repurchase of the Notes pursuant to this Section 15.02. At the Company’s request, given at least five days prior to the date the Fundamental Change Company Notice is to be sent (or such shorter period as may be agreed to by the Trustee), the Trustee shall give such notice in the Company’s name and at the Company’s expense; provided, however, that, in all cases, the text of such Fundamental Change Company Notice shall be prepared by the Company.
(d) Notwithstanding the foregoing, no Notes may be repurchased by the Company on any date at the option of the Holders upon a Fundamental Change if the principal amount of the Notes has been accelerated, and such acceleration has not been rescinded, on or prior to such date (except in the case of an acceleration resulting from a Default by the Company in the payment of the Fundamental Change Repurchase Price with respect to such Notes). The Paying Agent or Tender Agent, as the case may be, will promptly return to the respective Holders thereof any Physical Notes held by it during the acceleration of the Notes (except in the case of an acceleration resulting from a Default by the Company in the payment of the Fundamental Change Repurchase Price with respect to such Notes), or any instructions for book-entry transfer of the Notes in compliance with the procedures of the Depositary shall be deemed to have been cancelled, and, upon such return or cancellation, as the case may be, the Fundamental Change Repurchase Notice with respect thereto shall be deemed to have been withdrawn.
(e) Notwithstanding anything to the contrary in this Section 15.02, the Company shall not be required to send a Fundamental Change Company Notice, or offer to repurchase or repurchase any Notes, as set forth in this Article 15, in connection with a Fundamental Change occurring pursuant to clause (b)(A) or (B) (or pursuant to clause (a) that also constitutes a Fundamental Change occurring pursuant to clause (b)(A) or (B)) of the definition thereof, if: (i) such Fundamental Change constitutes a Share Exchange Event whose Reference Property consists entirely of cash in U.S. dollars; (ii) immediately after such Fundamental Change, the Notes become convertible (pursuant to Section 14.07 and, if applicable, Section 14.03) into consideration that consists solely of U.S. dollars in an amount per $1,000 principal amount of Notes that equals or exceeds the Fundamental Change Repurchase Price per $1,000 principal amount of Notes (calculated assuming that the same includes the maximum amount of accrued but unpaid interest payable as part of the Fundamental Change Repurchase Price for such Fundamental Change); and (iii) the Company timely sends the notice relating to such Fundamental Change required pursuant to Section 14.01(b)(iii). Any Fundamental Change with respect to which, in accordance with the provisions described in this Section 15.02(e), the Company is not required to offer to repurchase any Notes is referred to as herein as an “Exempted Fundamental Change.”
Appears in 2 contracts
Samples: Indenture (Sunnova Energy International Inc.), Indenture (Sunnova Energy International Inc.)
Repurchase at Option of Holders Upon a Fundamental Change. (a) If a Fundamental Change occurs at any time prior to the Maturity Date, each Holder shall have the right, at such Holder’s option, to require the Company to repurchase for cash all of such Holder’s Notes, or any portion thereof properly surrendered and not validly withdrawn pursuant to Section 15.03 that is equal to minimum denominations of $1,000 or an integral a multiple of $1,000 in excess thereof1,000, on the date (the “Fundamental Change Repurchase Date”) specified by the Company that is not less than 20 calendar days or more than 35 calendar days following the date of the Fundamental Change Company Notice at a repurchase price equal to 100% of the principal amount thereofof the Notes to be repurchased, plus accrued and unpaid interest thereon to, but excluding, the Fundamental Change Repurchase Date (the “Fundamental Change Repurchase Price”), unless the Fundamental Change Repurchase Date falls after a Regular Record Date but on or prior to the Interest Payment Date to which such Regular Record Date relates, in which case the Company shall instead pay pay, on such Interest Payment Date, the full amount of accrued and unpaid interest (to, but excluding, such Interest Payment Date) to Holders of record as of the close of business on such Regular Record Date, and the Fundamental Change Repurchase Price shall be equal to 100% of the principal amount of Notes to be repurchased pursuant to this Article 15; provided that the Company shall not be required to repurchase, or to make an offer to repurchase, the Notes upon a Fundamental Change if a third party makes such an offer in the same manner, at the same time and otherwise in compliance with the requirements for an offer made by the Company as set forth in this Section 15.02 and such third party purchases all Notes properly surrendered and not validly withdrawn under its offer in the same manner, at the same time and otherwise in compliance with the requirements for an offer made by the Company as set forth in this Section 15.02.
(b) Repurchases of Notes under this Section 15.02 shall be made, at the option of the Holder thereof, upon:
(i) delivery to the Paying Agent or tender agent appointed to facilitate the repurchase (the “Tender Agent”) by a Holder of a duly completed notice (the “Fundamental Change Repurchase Notice”) in the form set forth in Attachment 2 to the Form of Note attached hereto as Exhibit A, if the Notes are Physical Notes, or in compliance with the Depositary’s procedures for surrendering interests in Global Notes, if the Notes are Global Notes, in each case on or before the close of business on the Business Day immediately preceding the Fundamental Change Repurchase Date; and
(ii) delivery of the Notes, if the Notes are Physical Notes, to the Paying Agent or Tender Agent, as the case may be, at any time after delivery of the Fundamental Change Repurchase Notice (together with all necessary endorsements for transfer) at the Corporate Trust Office of the Paying Agent or the principal office of the Tender Agent located in the United States of America as notified by the Tender Agent to Holders and the Trustee, as applicableAgent, or book-entry transfer of the Notes, if the Notes are Global Notes, in compliance with the procedures of the Depositary, in each case such delivery being a condition to receipt by the Holder of the Fundamental Change Repurchase Price therefor. The Fundamental Change Repurchase Notice in respect of any Notes to be repurchased shall state:
(i) in the case of Physical Notes, the certificate numbers of the Notes to be delivered for repurchase;
(ii) the portion of the principal amount of Notes to be repurchased, which must be $1,000 or an integral a multiple thereof; and
(iii) that the Notes are to be repurchased by the Company pursuant to the applicable provisions of the Notes and this Indenture; provided, however, that if the Notes are Global Notes, the Fundamental Change Repurchase Notice must comply with appropriate Depositary procedures. Notwithstanding anything herein to the contrary, any Holder delivering to the Paying Agent or Tender Agent, as the case may be, the Fundamental Change Repurchase Notice contemplated by this Section 15.02 shall have the right to withdraw, in whole or in part, such Fundamental Change Repurchase Notice at any time prior to the close of business on the Business Day immediately preceding the Fundamental Change Repurchase Date by delivery of a written notice of withdrawal to the Paying Agent or Tender Agent, as the case may be, in accordance with Section 15.03, or in accordance with the customary procedures of the Depository with respect to Global Notes. The Paying Agent or Tender Agent, as the case may be, shall promptly notify the Company of the receipt by it of any Fundamental Change Repurchase Notice or written notice of withdrawal thereof.
(c) On or before the 20th Business Day calendar day after the occurrence of the effective date of a Fundamental Change, the Company shall provide to all Holders of Notes and the Trustee, the Conversion Agent (in the case of a Conversion Agent other than the Trustee) Trustee and the Paying Agent (in the case of a Paying Agent other than the Trustee) a notice (the “Fundamental Change Company Notice”) of the occurrence of the effective date of the Fundamental Change and of the repurchase right at the option of the Holders arising as a result thereof. In the case of Physical Notes, such notice shall be delivered by first class mail or, in the case of Global Notes, such notice shall be delivered in accordance with the applicable procedures of the Depositary. Simultaneously with providing such notice, the Company shall publish issue a notice press release containing the information set forth in the Fundamental Change Company Notice or publish such information on the Company’s website or through such other public medium as the Company may use at that time. Each Fundamental Change Company Notice shall specify:
(i) the events causing the Fundamental Change;
(ii) the effective date of the Fundamental Change;
(iii) the last date on which a Holder may exercise the repurchase right pursuant to this Article 15;
(iv) the Fundamental Change Repurchase Price;
(v) the Fundamental Change Repurchase Date;
(vi) the name and address of the Paying Agent or Tender Agent, as the case may be, and the Conversion Agent, if applicable;
(vii) if applicable, the Conversion Rate and any adjustments to the Conversion Rate as a result of the such Fundamental Change;
(viii) that the Notes with respect to which a Fundamental Change Repurchase Notice has been delivered by a Holder may be converted only if the Holder validly withdraws the Fundamental Change Repurchase Notice in accordance with the terms of this Indenture; and
(ix) the procedures that Holders must follow to require the Company to repurchase their Notes. No failure of the Company to give the foregoing notices and no defect therein shall limit the Holders’ repurchase rights or affect the validity of the proceedings for the repurchase of the Notes pursuant to this Section 15.02. At the Company’s request, given request made at least five days Business Days prior to the date the Fundamental Change Company Notice on which notice is to be sent to Holders (or such shorter period time as the Trustee may be agreed to by the Trusteeagree), the Trustee shall give such notice in the Company’s name and at the Company’s expense; provided, however, that, in all cases, the text of such Fundamental Change Company Notice shall be prepared by the Company.
(d) Notwithstanding the foregoing, no Notes may be repurchased by the Company on any date at the option of the Holders upon a Fundamental Change if the principal amount of the Notes has been accelerated, and such acceleration has not been rescinded, on or prior to such date (except in the case of an acceleration resulting from a Default by the Company in the payment of the Fundamental Change Repurchase Price with respect to such Notes). The Paying Agent or Tender Agent, as the case may be, will promptly return to the respective Holders thereof any Physical Notes held by it during the acceleration of the Notes (except in the case of an acceleration resulting from a Default by the Company in the payment of the Fundamental Change Repurchase Price with respect to such Notes), or any instructions for book-entry transfer of the Notes in compliance with the procedures of the Depositary shall be deemed to have been cancelled, and, upon such return or cancellation, as the case may be, the Fundamental Change Repurchase Notice with respect thereto shall be deemed to have been withdrawn.
Appears in 2 contracts
Repurchase at Option of Holders Upon a Fundamental Change. (a) If a Fundamental Change occurs at any time prior to the Maturity Datetime, each Holder shall have the right, at such Holder’s option, to require the Company to repurchase for cash all of such Holder’s Notes, or any portion thereof that is equal to minimum denominations of $1,000 or an integral multiple of $1,000 in excess thereof1,000, on the date (the “Fundamental Change Repurchase Date”) specified by the Company that is not less than 20 calendar days or more than 35 calendar days following the date of the Fundamental Change Company Notice at a repurchase price equal to 100% of the principal amount thereof, plus accrued and unpaid interest thereon to, but excluding, the Fundamental Change Repurchase Date (the “Fundamental Change Repurchase Price”), unless the Fundamental Change Repurchase Date falls after a Regular Record Date but on or prior to the Interest Payment Date to which such Regular Record Date relates, in which case the Company shall instead pay the full amount of accrued and unpaid interest (to, but excluding, such Interest Payment Date) to Holders of record as of such Regular Record Date, and the Fundamental Change Repurchase Price shall be equal to 100% of the principal amount of Notes to be repurchased pursuant to this Article 15; provided that the Company shall not be required to repurchase, or to make an offer to repurchase, the Notes upon a Fundamental Change if a third party makes such an offer in the same manner, at the same time and otherwise in compliance with the requirements for an offer made by the Company as set forth in this Section 15.02 and such third party purchases all Notes properly surrendered and not validly withdrawn under its offer in the same manner, at the same time and otherwise in compliance with the requirements for an offer made by the Company as set forth in this Section 15.02.
(b) Repurchases of Notes under this Section 15.02 shall be made, at the option of the Holder thereof, upon:
(i) delivery to the Paying Agent or tender agent appointed to facilitate the repurchase (the “Tender Agent”) by a Holder of a duly completed notice (the “Fundamental Change Repurchase Notice”) in the form set forth in Attachment 2 to the Form of Note attached hereto as Exhibit ANote, if the Notes are Physical Notes, or in compliance with the Depositary’s procedures for surrendering interests in Global Notes, if the Notes are Global Notes, in each case on or before the close of business on the Business Day immediately preceding the Fundamental Change Repurchase Date; and
(ii) delivery of the Notes, if the Notes are Physical Notes, to the Paying Agent or Tender Agent, as the case may be, at any time after delivery of the Fundamental Change Repurchase Notice (together with all necessary endorsements for transfer) at the Corporate Trust Office of the Paying Agent or the principal office of the Tender Agent located in the United States of America as notified by the Tender Agent to Holders and the Trustee, as applicable, or book-entry transfer of the Notes, if the Notes are Global Notes, in compliance with the procedures of the Depositary, in each case such delivery being a condition to receipt by the Holder of the Fundamental Change Repurchase Price therefor. The Fundamental Change Repurchase Notice in respect of any Notes to be repurchased shall state:
(i) in the case of Physical Notes, the certificate numbers of the Notes to be delivered for repurchase;
(ii) the portion of the principal amount of Notes to be repurchased, which must be $1,000 or an integral multiple thereof; and
(iii) that the Notes are to be repurchased by the Company pursuant to the applicable provisions of the Notes and this Indenture; provided, however, that if the Notes are Global Notes, the Fundamental Change Repurchase Notice must comply with appropriate Depositary procedures. Notwithstanding anything herein to the contrary, any Holder delivering to the Paying Agent or Tender Agent, as the case may be, the Fundamental Change Repurchase Notice contemplated by this Section 15.02 shall have the right to withdraw, in whole or in part, such Fundamental Change Repurchase Notice at any time prior to the close of business on the Business Day immediately preceding the Fundamental Change Repurchase Date by delivery of a written notice of withdrawal to the Paying Agent or Tender Agent, as the case may be, in accordance with Section 15.03, or in accordance with the customary procedures of the Depository with respect to Global Notes. The Paying Agent or Tender Agent, as the case may be, shall promptly notify the Company of the receipt by it of any Fundamental Change Repurchase Notice or written notice of withdrawal thereof.
(c) On or before the 20th Business Day calendar day after the occurrence of the effective date of a Fundamental Change, the Company shall provide to all Holders of Notes and the Trustee, the Conversion Agent (in the case of a Conversion Agent other than the Trustee) and the Paying Agent (in the case of a Paying Agent other than the Trustee) a notice (the “Fundamental Change Company Notice”) of the occurrence of the effective date of the Fundamental Change and of the repurchase right at the option of the Holders arising as a result thereof. In the case of Physical Notes, such notice shall be by first class mail or, in the case of Global Notes, such notice shall be delivered in accordance with the applicable procedures of the Depositary. Simultaneously with providing such notice, the Company shall publish a notice containing the information set forth in the Fundamental Change Company Notice in a newspaper of general circulation in The City of New York or publish such information on the Company’s website or through such other public medium as the Company may use at that time. Each Fundamental Change Company Notice shall specify:
(i) the events causing the Fundamental Change;
(ii) the effective date of the Fundamental Change;
(iii) the last date on which a Holder may exercise the repurchase right pursuant to this Article 15;
(iv) the Fundamental Change Repurchase Price;
(v) the Fundamental Change Repurchase Date;
(vi) the name and address of the Paying Agent or Tender Agent, as the case may be, and the Conversion Agent, if applicable;
(vii) if applicable, the Conversion Rate and any adjustments to the Conversion Rate as a result of the Fundamental ChangeRate;
(viii) that the Notes with respect to which a Fundamental Change Repurchase Notice has been delivered by a Holder may be converted only if the Holder validly withdraws the Fundamental Change Repurchase Notice in accordance with the terms of this Indenture; and
(ix) the procedures that Holders must follow to require the Company to repurchase their Notes. No failure of the Company to give the foregoing notices and no defect therein shall limit the Holders’ repurchase rights or affect the validity of the proceedings for the repurchase of the Notes pursuant to this Section 15.02. At the Company’s request, given at least five days prior to the date the Fundamental Change Company Notice is to be sent (or such shorter period as may be agreed to by the Trustee), the Trustee shall give such notice in the Company’s name and at the Company’s expense; provided, however, that, in all cases, the text of such Fundamental Change Company Notice shall be prepared by the Company.
(d) Notwithstanding the foregoing, no Notes may be repurchased by the Company on any date at the option of the Holders upon a Fundamental Change if the principal amount of the Notes has been accelerated, and such acceleration has not been rescinded, on or prior to such date (except in the case of an acceleration resulting from a Default by the Company in the payment of the Fundamental Change Repurchase Price with respect to such Notes). The Paying Agent or Tender Agent, as the case may be, will promptly return to the respective Holders thereof any Physical Notes held by it during the acceleration of the Notes (except in the case of an acceleration resulting from a Default by the Company in the payment of the Fundamental Change Repurchase Price with respect to such Notes), or any instructions for book-entry transfer of the Notes in compliance with the procedures of the Depositary shall be deemed to have been cancelled, and, upon such return or cancellation, as the case may be, the Fundamental Change Repurchase Notice with respect thereto shall be deemed to have been withdrawn.
Appears in 2 contracts
Repurchase at Option of Holders Upon a Fundamental Change. (a) If Subject to Section 15.02(f), if a Fundamental Change occurs at any time prior to the Maturity Datetime, each Holder shall have the right, at such Holder’s option, to require the Company to repurchase for cash all of such Holder’s Notes, or any portion of the principal amount thereof properly surrendered and not validly withdrawn pursuant to Section 15.03 that is equal to minimum denominations of $1,000 or an integral multiple of $1,000 in excess thereof1,000, on the date (the “Fundamental Change Repurchase Date”) specified by the Company that is not less than 20 calendar days Business Days or more than 35 calendar days Business Days following the date of the Fundamental Change Company Notice at a repurchase price equal to 100% of the principal amount thereof, plus any accrued and unpaid interest Special Interest thereon to, but excluding, the Fundamental Change Repurchase Date (the “Fundamental Change Repurchase Price”), unless the Fundamental Change Repurchase Date falls after a Regular Special Interest Record Date but on or prior to the Special Interest Payment Date to which such Regular Special Interest Record Date relates, in which case the Company shall instead pay the full amount of accrued and unpaid interest (to, but excluding, such Special Interest Payment Date) to Holders of record as of the close of business on such Regular Special Interest Record Date on, or at the Company’s election, before such Special Interest Payment Date, and the Fundamental Change Repurchase Price shall be equal to 100% of the principal amount of Notes to be repurchased pursuant to this Article 15; provided that the Company shall not be required to repurchase, or to make an offer to repurchase, the Notes upon a Fundamental Change if a third party makes such an offer in the same manner, at the same time and otherwise in compliance with the requirements for an offer made by the Company as set forth in this Section 15.02 and such third party purchases all Notes properly surrendered and not validly withdrawn under its offer in the same manner, at the same time and otherwise in compliance with the requirements for an offer made by the Company as set forth in this Section 15.02.
(b) Repurchases of Notes under this Section 15.02 shall be made, at the option of the Holder thereof, upon:
(i) delivery to the Paying Agent or tender agent appointed to facilitate the repurchase (the “Tender Agent”) by a Holder of a duly completed notice (the “Fundamental Change Repurchase Notice”) in the form set forth in Attachment 2 to the Form of Note attached hereto as Exhibit A, if the Notes are Physical Notes, or in compliance with the Depositary’s applicable procedures for surrendering interests in Global Notes, if the Notes are Global Notes, in each case case, on or before the close of business on the Business Day immediately preceding the Fundamental Change Repurchase Date; and
(ii) delivery of the Notes, if the Notes are Physical Notes, to the Paying Agent or Tender Agent, as the case may be, at any time after delivery of the Fundamental Change Repurchase Notice (together with all necessary endorsements for transfer) at the Corporate Trust Office of the Paying Agent or the principal office of the Tender Agent located in the United States of America as notified by the Tender Agent to Holders and the Trustee, as applicableAgent, or book-entry transfer of the Notes, if the Notes are Global Notes, in compliance with the applicable procedures of the Depositary, in each case case, such delivery or transfer being a condition to receipt by the Holder of the Fundamental Change Repurchase Price therefor. The Fundamental Change Repurchase Notice in respect of any Physical Notes to be repurchased shall state:
(i) in the case of Physical Notes, the certificate numbers of the Notes to be delivered for repurchase;
(ii) the portion of the principal amount of Notes to be repurchased, which must be $1,000 or an integral multiple thereof; and
(iii) that the Notes are to be repurchased by the Company pursuant to the applicable provisions of the Notes and this Indenture; provided, however, that if . If the Notes are Global Notes, to exercise the Fundamental Change Repurchase Notice repurchase right, Holders must comply surrender their Notes in accordance with appropriate applicable Depositary procedures. Notwithstanding anything herein to the contrary, any Holder delivering to the Paying Agent or Tender Agent, as the case may be, the Fundamental Change Repurchase Notice contemplated by this Section 15.02 shall have the right to withdraw, in whole or in part, such Fundamental Change Repurchase Notice at any time prior to the close of business on the Business Day immediately preceding the Fundamental Change Repurchase Date by delivery of a written notice of withdrawal to the Paying Agent or Tender Agent, as the case may be, in accordance with Section 15.03, or in accordance with the customary procedures of the Depository with respect to Global Notes. The Paying Agent or Tender Agent, as the case may be, shall promptly notify the Company of the receipt by it of any Fundamental Change Repurchase Notice or written notice of withdrawal thereof.
(c) On or before the 20th Business Day after the occurrence of the effective date of a Fundamental Change, the Company shall provide to all Holders of Notes and the Trustee, the Conversion Agent (in the case of a Conversion Agent other than the Trustee) Trustee and the Paying Agent (in the case of a Paying Agent other than the Trustee) a notice (the “Fundamental Change Company Notice”) of the occurrence of the effective date of the Fundamental Change and of the resulting repurchase right at the option of the Holders arising as a result thereof. In the case of Physical Notes, such notice shall be by first class mail or, in the case of Global Notes, such notice shall be delivered in accordance with the applicable procedures of the Depositary. Simultaneously with providing such notice, the Company shall publish a notice containing the such information set forth in the Fundamental Change Company Notice on the Company’s website or through such other public medium as the Company may use at that time. Each Fundamental Change Company Notice shall specify:
(i) the events causing the Fundamental Change;
(ii) the effective date of the Fundamental Change;
(iii) the last date on which a Holder may exercise the repurchase right pursuant to this Article 15;
(iv) the Fundamental Change Repurchase Price;
(v) the Fundamental Change Repurchase Date;
(vi) the name and address of the Paying Agent or Tender Agent, as the case may be, and the Conversion Agent, if applicable;
(vii) if applicable, the Conversion Rate and any adjustments to the Conversion Rate as a result of the Fundamental Change (or related Make-Whole Fundamental Change);
(viii) that the Notes with respect to which a Fundamental Change Repurchase Notice has been delivered by a Holder may be converted only if the Holder validly withdraws the Fundamental Change Repurchase Notice in accordance with the terms of this Indenture; and
(ix) the procedures that Holders must follow to require the Company to repurchase their Notes. No failure of the Company to give the foregoing notices and no defect therein shall limit the Holders’ repurchase rights or affect the validity of the proceedings for the repurchase of the Notes pursuant to this Section 15.02. At the Company’s request, written request given at least five days prior to the date the Fundamental Change Company Notice two (2) Business Days before such notice is to be sent (or such shorter period as may shall be agreed acceptable to by the Trustee), the Trustee shall give such notice in the Company’s name and at the Company’s expense; provided, however, that, in all cases, the text of such Fundamental Change Company Notice shall be prepared by the Company.
(d) Notwithstanding anything to the contrary in this Article 15, the Company shall not be required to repurchase, or to make an offer to repurchase, the Notes upon a Fundamental Change if a third party makes such an offer in the same manner, at the same time and otherwise in compliance with the requirements for an offer made by the Company as set forth in this Article 15 and such third party purchases all Notes properly surrendered and not validly withdrawn under its offer in the same manner, at the same time and otherwise in compliance with the requirements for an offer made by the Company as set forth above.
(e) Notwithstanding the foregoing, no Notes may be repurchased by the Company on any date at the option of the Holders upon a Fundamental Change if the principal amount of the Notes has been accelerated, and such acceleration has not been rescinded, on or prior to such date (except in the case of an acceleration resulting from a Default by the Company in the payment of the Fundamental Change Repurchase Price with respect to such Notes). The Paying Agent or Tender Agent, as the case may be, will promptly return to the respective Holders thereof any Physical Notes held by it during the acceleration of the Notes (except in the case of an acceleration resulting from a Default by the Company in the payment of the Fundamental Change Repurchase Price with respect to such Notes), or any instructions for book-entry transfer of the Notes in compliance with the applicable procedures of the Depositary shall be deemed to have been cancelled, and, upon such return or cancellation, as the case may be, the Fundamental Change Repurchase Notice with respect thereto shall be deemed to have been withdrawn.
(f) Notwithstanding anything to the contrary in this Section 15.02, the Company shall not be required to send a Fundamental Change Company Notice, or offer to repurchase or repurchase any Notes, as set forth in this Article 15, in connection with a Fundamental Change occurring pursuant to clause (b)(A) or (B) of the definition thereof, if: (i) such Fundamental Change constitutes a Share Exchange Event whose Reference Property consists entirely of cash in U.S. dollars; (ii) immediately after such Fundamental Change, the Notes become convertible (pursuant to Section 14.07 and, if applicable, Section 14.03) into consideration that consists solely of U.S. dollars in an amount per $1,000 principal amount of Notes that equals or exceeds the Fundamental Change Repurchase Price per $1,000 principal amount of Notes (calculated assuming that the same includes the maximum amount of any accrued but unpaid Special Interest payable as part of the Fundamental Change Repurchase Price for such Fundamental Change); and (iii) the Company timely sends the notice relating to such Fundamental Change required pursuant to Section 14.01(b)(iii). Any Fundamental Change with respect to which, in accordance with the provisions described in this Section 15.02(f), the Company does not offer to repurchase any Notes is referred to as herein as an “Exempted Fundamental Change.”
Appears in 2 contracts
Samples: Indenture (Confluent, Inc.), Indenture (Unity Software Inc.)
Repurchase at Option of Holders Upon a Fundamental Change. (a) If a Fundamental Change occurs at any time prior to the Maturity Date, then each Holder Noteholder shall have the right, at such Holder’s option, to require the Company to repurchase for cash all of such Holder’s Notes, Notes or any portion thereof that is equal to minimum denominations of $1,000 or an integral a multiple of $1,000 in excess thereofprincipal amount, for cash on or after the Close of Business on the date (the “Fundamental Change Repurchase Date”) specified by the Company that is not less than 20 twenty (20) calendar days or and not more than 35 thirty-five (35) calendar days following after the date of the Fundamental Change Company Notice (as defined below) at a repurchase price equal to 100% of the principal amount thereof, plus together with accrued and unpaid interest thereon (including Additional Interest and Filing Additional Interest, if any) to, but excluding, the Fundamental Change Repurchase Date (collectively, the “Fundamental Change Repurchase Price”). Notwithstanding the foregoing, unless if the Fundamental Change Repurchase Date falls is after a Regular Record Date but and on or prior to the corresponding Interest Payment Date to which such Regular Record Date relatesDate, in which case the Company shall instead pay the full amount of accrued and unpaid interest (toincluding Additional Interest and Filing Additional Interest, but excluding, such Interest Payment Dateif any) to Holders of record as of such Regular Record Date, and will be paid on the Fundamental Change Repurchase Price shall be equal Date to 100% the Holder of record on the principal amount of Notes to be repurchased pursuant to this Article 15; provided that the Company shall not be required to repurchase, or to make an offer to repurchase, the Notes upon a Fundamental Change if a third party makes such an offer in the same manner, at the same time and otherwise in compliance with the requirements for an offer made by the Company as set forth in this Section 15.02 and such third party purchases all Notes properly surrendered and not validly withdrawn under its offer in the same manner, at the same time and otherwise in compliance with the requirements for an offer made by the Company as set forth in this Section 15.02.
(b) Record Date. Repurchases of Notes under this Section 15.02 11.01 shall be made, at the option of the Holder thereof, upon:
(i) delivery to the Trustee (or other Paying Agent or tender agent appointed to facilitate by the repurchase (the “Tender Agent”Company) by a Holder of a duly completed notice (the “Fundamental Change Repurchase Notice”) in the form set forth in Attachment 2 to the Form of Note attached hereto as Exhibit A, if the Notes are Physical Notes, or in compliance with the Depositary’s procedures for surrendering interests in Global Notes, if the Notes are Global Notes, in each case on or before the close of business on the reverse of the Note at any time prior the Close of Business Day immediately preceding on the Fundamental Change Repurchase Date; and
(ii) delivery or book-entry transfer of the Notes, if the Notes are Physical Notes, to the Trustee (or other Paying Agent or Tender Agent, as appointed by the case may be, Company) at any time after delivery of the Fundamental Change Repurchase Notice (together with all necessary endorsements for transferendorsements) at the Corporate Trust Office of the Trustee (or other Paying Agent or appointed by the principal office of the Tender Agent located Company) in the United States Borough of America as notified by the Tender Agent to Holders and the TrusteeManhattan, as applicable, or book-entry transfer of the Notes, if the Notes are Global Notes, in compliance with the procedures of the Depositary, in each case such delivery being a condition to receipt by the Holder of the Fundamental Change Repurchase Price therefor; provided that such Fundamental Change Repurchase Price shall be so paid pursuant to this Section 11.01 only if the Note so delivered to the Trustee (or other Paying Agent appointed by the Company) shall conform in all respects to the description thereof in the related Fundamental Change Repurchase Notice. The Fundamental Change Repurchase Notice in respect of any Notes to be repurchased shall state:
(iA) in the case of Physical Notesif certificated, the certificate numbers of the Notes to be delivered for repurchase;
(iiB) the portion of the principal amount of Notes to be repurchased, which must be $1,000 or an integral multiple thereof; and;
(iiiC) that the Notes are to be repurchased by the Company pursuant to the applicable provisions of the Notes and this Indenture; and
(D) if such Fundamental Change Repurchase Notice is delivered prior to the occurrence of a Fundamental Change pursuant to a definitive agreement giving rise to a Fundamental Change, that the Holder acknowledges that the Company’s offer is conditioned on the occurrence of such Fundamental Change. provided, however, that if the Notes are Global Notesnot in certificated form, the Fundamental Change Repurchase Notice must comply with appropriate Depositary proceduresApplicable Procedures. Notwithstanding anything herein Any repurchase by the Company contemplated pursuant to the contrary, any provisions of this Section
11.01 shall be consummated by the delivery of the consideration to be received by the Holder delivering to promptly following the Paying Agent or Tender Agent, as the case may be, the Fundamental Change Repurchase Notice contemplated by this Section 15.02 shall have the right to withdraw, in whole or in part, such Fundamental Change Repurchase Notice at any time prior to the close later of business on the Business Day immediately preceding the Fundamental Change Repurchase Date by and the time of the book-entry transfer or delivery of a written notice of withdrawal to the Note. The Trustee (or other Paying Agent or Tender Agent, as appointed by the case may be, in accordance with Section 15.03, or in accordance with the customary procedures of the Depository with respect to Global Notes. The Paying Agent or Tender Agent, as the case may be, Company) shall promptly notify the Company of the receipt by it of any Fundamental Change Repurchase Notice or written notice of withdrawal thereofthereof in accordance with the provisions of Section 11.01(c). Any Note that is to be repurchased only in part shall be surrendered to the Trustee (with, if the Company or the Trustee so requires, due endorsement by, or a written instrument of transfer in form satisfactory to the Company and the Trustee duly executed by the Holder thereof or his attorney duly authorized in writing), and the Company shall execute, and the Trustee shall authenticate and make available for delivery to the Holder of such Note without service charge, a new Note or Notes, containing identical terms and conditions, each in an authorized denomination in aggregate principal amount equal to and in exchange for the unrepurchased portion of the principal of the Note so surrendered.
(cb) On or before the 20th Business Day fifth (5th) calendar day after the occurrence of the effective date of a Fundamental Change, the Company shall provide to all Holders of record of the Notes and as of the Trustee, date of the Conversion Agent (Fundamental Change Company Notice at their addresses shown in the case of a Conversion Agent other than Note Register (and to beneficial owners to the Trusteeextent required by applicable law) and the Trustee and Paying Agent (in the case of a Paying Agent other than the Trustee) a written notice (the “Fundamental Change Company Notice”) of the occurrence of the effective date of the such Fundamental Change and of the repurchase right at the option of the Holders arising as a result thereof. In the case of Physical Notes, such notice Such mailing shall be by first class mail or, in the case of Global Notes, such notice shall be delivered in accordance with the applicable procedures of the Depositarymail. Simultaneously with providing such noticeFundamental Change Company Notice, the Company shall publish a notice containing the information set forth included therein once in the Fundamental Change Company Notice a newspaper of general circulation in The City of New York or publish such information on the Company’s website or through such other public medium as the Company may use at that such time. Each Fundamental Change Company Notice shall specify:
(i) the events causing the Fundamental Change;
(ii) the effective date of the Fundamental Change;
(iii) that the last date on which a Holder may must exercise the repurchase right pursuant prior to this Article 15the Close of Business on the Fundamental Change Repurchase Date;
(iv) the Fundamental Change Repurchase Price;
(v) the Fundamental Change Repurchase Date;
(vi) the name and address of the Paying Agent or Tender Agent, as the case may be, and the Conversion Agent, if applicable;
(vii) if applicable, the applicable Conversion Rate and any adjustments to the applicable Conversion Rate as a result of the Fundamental ChangeRate;
(viii) that the Notes with respect to which a Fundamental Change Repurchase Notice has been delivered by a Holder may be converted only if the Holder validly withdraws the Fundamental Change Repurchase Notice in accordance with the terms of this Indenture; and
(ix) the procedures that Holders must follow to require the Company to repurchase their Notes. No failure of the Company to give the foregoing notices and no defect therein shall limit the HoldersNoteholders’ repurchase rights or affect the validity of the proceedings for the repurchase of the Notes pursuant to this Section 15.02. At the Company’s request, given at least five days prior 11.01.
(c) A Fundamental Change Repurchase Notice may be withdrawn by delivering a written notice of withdrawal to the date Paying Agent in accordance with the Fundamental Change Company Notice is at any time prior to be sent (or such shorter period as may be agreed to by the Trustee), Close of Business on the Trustee shall give such notice in the Company’s name and at the Company’s expense; provided, however, that, in all cases, the text of such Fundamental Change Company Notice shall be prepared by the Company.Repurchase Date, specifying:
(di) Notwithstanding the foregoing, no Notes may be repurchased by the Company on any date at the option of the Holders upon a Fundamental Change if the principal amount of the Notes has been acceleratedwith respect to which such notice of withdrawal is being submitted;
(ii) the principal amount, and if any, of such acceleration has not been rescinded, on or prior Notes that remains subject to such date (except in the case of an acceleration resulting from a Default by the Company in the payment of the original Fundamental Change Repurchase Price Notice, which portion must be in principal amounts of $1,000 or an integral multiple of $1,000; and
(iii) if certificated Notes have been issued, the certificate numbers of the withdrawn Notes; provided, however, that if the Notes are not in certificated form, the notice must comply with respect to such Notes)Applicable Procedures. The Paying Agent or Tender Agent, as the case may be, will promptly return to the respective Holders thereof any Physical certificated Notes held with respect to which a Fundamental Change Repurchase Notice has been withdrawn in compliance with the provisions of this Section 11.01(c). If the Notes are not in certificated form, such return must comply with the appropriate procedures of the Depositary. If a Fundamental Change Repurchase Notice is given and then subsequently withdrawn in accordance with this Section 11.01(c), then the Company shall not be obligated to repurchase any Notes listed in such Fundamental Change Repurchase Notice.
(d) On or prior to 1:00 p.m. (local time in The City of New York) on the Business Day following the Fundamental Change Repurchase Date, the Company will deposit with the Trustee (or other Paying Agent appointed by it during the acceleration Company) or if the Company is acting as its own Paying Agent, set aside, segregate and hold in trust in accordance with this Indenture an amount of money or securities sufficient to repurchase as of the Fundamental Change Repurchase Date all of the Notes to be repurchased as of such date at the Fundamental Change Repurchase Price. Subject to receipt of funds and/or Notes by the Trustee (except in the case of an acceleration resulting from a Default or other Paying Agent appointed by the Company in and subject to extension if necessary to comply with the provisions of the Investment Company Act of 1940), payment for Notes surrendered for repurchase (and not withdrawn) prior to the Close of Business on the Fundamental Change Repurchase Date will be made promptly after the later of (x) the Fundamental Change Repurchase Date with respect to such Note (provided the Holder has satisfied the conditions to the payment of the Fundamental Change Repurchase Price with respect in this Section 11.01), and (y) the time of book-entry transfer or the delivery of such Note to the Trustee (or other Paying Agent appointed by the Company) by the Holder thereof in the manner required by this Section 11.01 by mailing checks for the amount payable to the Holders of such Notes entitled thereto as they shall appear in the Note Register (in the case of certificated Notes) by wire transfer of immediately available funds to the account of the Depositary or its nominee (if the Notes are not in certificated form). The Trustee shall, promptly after such payment return to the Company any funds in excess of the Fundamental Change Repurchase Price.
(e) If the Trustee (or other Paying Agent appointed by the Company) holds money or securities sufficient to repurchase as of the Fundamental Change Repurchase Date all the Notes or portions thereof that are to be purchased as of the Business Day following the Fundamental Change Repurchase Date, then on and after the Fundamental Change Repurchase Date (i) such Notes will cease to be Outstanding, (ii) interest (including Additional Interest and Filing Additional Interest, if any) will cease to accrue on such Notes), whether or any instructions for not book-entry transfer of the Notes in compliance with has been made or the procedures of the Depositary shall be deemed to Notes have been cancelled, and, upon such return delivered to the Trustee or cancellationPaying Agent, as the case may be, and (iii) all other rights of the Holders of such Notes will terminate other than the right to receive the Fundamental Change Repurchase Notice with respect thereto shall be deemed to have been withdrawnPrice upon delivery or transfer of such Notes.
Appears in 1 contract
Samples: Indenture (Prospect Capital Corp)
Repurchase at Option of Holders Upon a Fundamental Change. (a) If a Fundamental Change occurs at any time prior to the Maturity Date, each Holder shall have the right, at such Holder’s option, to require the Company to repurchase for cash all of such Holder’s Notes, or any portion of the principal amount thereof properly surrendered and not validly withdrawn pursuant to Section 15.03 that is equal to minimum denominations of $1,000 or an integral multiple of $1,000 in excess thereof1,000, on the date (the “Fundamental Change Repurchase Date”) specified by the Company that is not less than 20 calendar days twenty (20) Business Days or more than 35 calendar days thirty-five (35) Business Days following the date of the Fundamental Change Company Notice at a repurchase price equal to 100% of the principal amount thereof, plus accrued and unpaid interest thereon interest, if any, plus any remaining amounts that would be owed to, but excluding, the Fundamental Change Repurchase Maturity Date (the “Fundamental Change Repurchase Price”), unless the Fundamental Change Repurchase Date falls after a Regular Record Date but on or prior to the Interest Payment Date to which such Regular Record Date relates, in which case the Company shall instead pay the full amount of accrued and unpaid interest (to, but excluding, such Interest Payment Date) to Holders of record as of such Regular Record Date, and the Fundamental Change Repurchase Price shall be equal to 100% of the principal amount of Notes to be repurchased pursuant to this Article 15; provided that . The Fundamental Change Repurchase Date shall be subject to postponement in order to allow the Company shall not be required to repurchase, or to make an offer to repurchase, the Notes upon a Fundamental Change if a third party makes such an offer in the same manner, at the same time and otherwise in compliance comply with the requirements for an offer made by the Company as set forth in this Section 15.02 and such third party purchases all Notes properly surrendered and not validly withdrawn under its offer in the same manner, at the same time and otherwise in compliance with the requirements for an offer made by the Company as set forth in this Section 15.02applicable law.
(b) Repurchases of Notes under this Section 15.02 shall be made, at the option of the Holder thereof, upon:
(i) delivery to the Paying Agent or tender paying agent appointed to facilitate the repurchase (the “Tender Agent”) by a Holder of a duly completed notice (the “Fundamental Change Repurchase Notice”) in the form set forth in Attachment 2 to the Form of Note attached hereto as Exhibit A, if the Notes are Physical Notes, or in compliance with the Depositary’s procedures Applicable Procedures for surrendering interests in Global Notes, if the Notes are Global Notes, in each case on or before the close of business on the Business Day immediately preceding the Fundamental Change Repurchase Date; and
(ii) delivery of the Notes, if the Notes are Physical Notes, to the Paying Agent or Tender Agent, as the case may be, paying agent at any time after delivery of the Fundamental Change Repurchase Notice (together with all necessary endorsements for transfer) at the Corporate Trust Office of the Paying Agent or the principal office of the Tender Agent located in the United States of America as notified by the Tender Agent to Holders and the Trustee, as applicablepaying agent, or book-book- entry transfer of the Notes, if the Notes are Global Notes, in compliance with the procedures of the Depositary, in each case such delivery being a condition to receipt by the Holder of the Fundamental Change Repurchase Price therefor. The Fundamental Change Repurchase Notice in respect of any Notes to be repurchased shall state:
(iiii) in the case of Physical Notes, the certificate numbers of the Notes to be delivered for repurchase;
(iiiv) the portion of the principal amount of Notes to be repurchased, which must be in minimum denominations of $1,000 or an integral multiple thereof; and
(iiiv) that the Notes are to be repurchased by the Company pursuant to the applicable provisions of the Notes and this Indenture; provided, however, that if the Notes are Global Notes, the Fundamental Change Repurchase Notice must comply with appropriate Depositary proceduresthe Applicable Procedures. Notwithstanding anything herein to the contrary, any Holder delivering to the Paying Agent or Tender Agent, as the case may be, paying agent the Fundamental Change Repurchase Notice contemplated by this Section 15.02 shall have the right to withdraw, in whole or in part, such Fundamental Change Repurchase Notice at any time prior to the close of business on the Business Day immediately preceding the Fundamental Change Repurchase Date by delivery of a written notice of withdrawal to the Paying Agent or Tender Agent, as the case may be, paying agent in accordance with Section 15.03, or in accordance with the customary procedures of the Depository with respect to Global Notes. The Paying Agent or Tender Agent, as the case may be, paying agent shall promptly notify the Company of the receipt by it of any Fundamental Change Repurchase Notice or written notice of withdrawal thereof.
(c) On or before the 20th twentieth (20th) Business Day after the occurrence of the effective date of a Fundamental Change, the Company shall provide to all Holders of Notes and Notes, the Trustee, the Conversion Agent (in the case of a Conversion Agent if other than the Trustee) and the Paying Agent paying agent (in the case of a Paying Agent paying agent other than the Trustee) a written notice (the “Fundamental Change Company Notice”) of the occurrence of the effective date of the Fundamental Change and of the repurchase right at the option of the Holders arising as a result thereof. In the case of Physical Notes, such notice shall be by first class mail or, in the case of Global Notes, such notice shall be delivered in accordance with the applicable procedures Applicable Procedures of the Depositary. Simultaneously with providing such notice, the Company shall publish a notice containing the information set forth in the Fundamental Change Company Notice on the Company’s website or through such other public medium as the Company may use at that time. Each Fundamental Change Company Notice shall specify:
(i) the events causing the Fundamental Change;
(ii) the effective date of the Fundamental Change;
(iii) the last date on which a Holder may exercise the repurchase right pursuant to this Article 15;
(iv) the Fundamental Change Repurchase Price;
(v) the Fundamental Change Repurchase Date;
(vi) the name and address of the Paying Agent or Tender Agent, as the case may be, paying agent and the Conversion Agent, if applicable;
(vii) if applicable, the Conversion Rate and any adjustments to the Conversion Rate as a result of the Fundamental ChangeRate;
(viii) that the Notes with respect to which a Fundamental Change Repurchase Notice has been delivered by a Holder may be converted only if the Holder validly withdraws the Fundamental Change Repurchase Notice in accordance with the terms of this Indenture; and
(ix) the procedures that Holders must follow to require the Company to repurchase their Notes. No failure of the Company to give the foregoing notices and no defect therein shall limit the Holders’ repurchase rights or affect the validity of the proceedings for the repurchase of the Notes pursuant to this Section 15.02. Simultaneously with providing such notice, the Company will publish such information on its website or through such other public medium as the Company may use at that time. At the Company’s written request, given at least (5) five days prior to the date the Fundamental Change Company Notice is to be sent (or such shorter period as may be agreed to by the Trustee)sent, the Trustee shall give such notice in the Company’s name and at the Company’s expense; provided, however, that, in all cases, the text of such Fundamental Change Company Notice shall be prepared by the Company.
(d) Notwithstanding the foregoing, no Notes may be repurchased by the Company on any date at the option of the Holders upon in connection with a Fundamental Change if the principal amount of the Notes has been accelerated, and such acceleration has not been rescinded, on or prior to such date (except in the case of an acceleration resulting from a Default by the Company in the payment of the Fundamental Change Repurchase Price with respect to such Notes). The Paying Agent or Tender Agent, as the case may be, paying agent will promptly return to the respective Holders thereof any Physical Notes held by it during the acceleration of the Notes (except in the case of an acceleration resulting from a Default by the Company in the payment of the Fundamental Change Repurchase Price with respect to such Notes), or any instructions for book-entry transfer of the Notes in compliance with the procedures of the Depositary Applicable Procedures shall be deemed to have been cancelled, and, upon such return or cancellation, as the case may be, the Fundamental Change Repurchase Notice with respect thereto shall be deemed to have been withdrawn.
(e) Notwithstanding anything to the contrary in this Indenture, the Company shall not be required to repurchase, or to make an offer to repurchase, the Notes upon a Fundamental Change if a third party makes such an offer in the same manner, at the same time and otherwise in compliance with the requirements for an offer made by the Company as set forth in this Article 15 (including, without limitation, the requirement to comply with applicable securities laws), and such third party purchases all Notes properly surrendered and not validly withdrawn under its offer in the same manner, at the same time and otherwise in compliance with the requirements for an offer made by the Company as set forth in this Article 15 (including the requirement to pay the Fundamental Change Repurchase Price on the later of the applicable Fundamental Change Repurchase Date and the time of book-entry transfer or delivery of the relevant Notes); provided that the Company shall continue to be obligated to (x) deliver the applicable Fundamental Change Repurchase Notice to the Holders (which Fundamental Change Repurchase Notice shall state that such third party shall make such an offer to purchase the Notes) and to simultaneously with such Fundamental Change Repurchase Notice publish a notice containing such information in a newspaper of general circulation in the City of New York or publish the information on the Company’s website or through such other public medium as the Company may use at that time, (y) comply with applicable securities laws as set forth in this Indenture in connection with any such purchase and (z) pay the applicable Fundamental Change Repurchase Price on the later of the applicable Fundamental Change Repurchase Date and the time of book-entry transfer or delivery of the relevant Notes in the event such third party fails to make such payment in such amount at such time.
(f) For purposes of this Article 15, the paying agent may be any agent, depositary, tender agent, paying agent or other agent appointed by the Company to accomplish the purposes set forth herein.
Appears in 1 contract
Repurchase at Option of Holders Upon a Fundamental Change. (a) If a Fundamental Change occurs at any time prior to the Maturity Date, each Holder shall have the right, at such Holder’s option, to require the Company to repurchase for cash all of such Holder’s Notes, or any portion of the principal amount thereof properly surrendered and not validly withdrawn pursuant to Section 15.03 that is equal to minimum denominations of $1,000 or an integral multiple of $1,000 in excess thereof1,000, on the date (the “Fundamental Change Repurchase Date”) specified by the Company that is not less than 20 calendar days Business Days or more than 35 calendar days Business Days following the date of the Fundamental Change Company Notice at a repurchase price equal to 100% of the principal amount thereof, plus accrued and unpaid interest thereon to, but excluding, the Fundamental Change Repurchase Date (the “Fundamental Change Repurchase Price”), unless the Fundamental Change Repurchase Date falls after a Regular Record Date but on or prior to the Interest Payment Date to which such Regular Record Date relates, in which case the Company shall instead pay pay, on or, at the Company’s election, before such Interest Payment Date, the full amount of accrued and unpaid interest (to, but excluding, such Interest Payment Date) to Holders of record as of such Regular Record Date, and the Fundamental Change Repurchase Price shall be equal to 100% of the principal amount of Notes to be repurchased pursuant to this Article 15; provided that the Company shall not be required to repurchase, or to make an offer to repurchase, the Notes upon a Fundamental Change if a third party makes such an offer in the same manner, at the same time and otherwise in compliance with the requirements for an offer made by the Company as set forth in this Section 15.02 and such third party purchases all Notes properly surrendered and not validly withdrawn under its offer in the same manner, at the same time and otherwise in compliance with the requirements for an offer made by the Company as set forth in this Section 15.02.
(b) Repurchases of Notes under this Section 15.02 shall be made, at the option of the Holder thereof, upon:
(i) delivery to the Paying Agent or tender agent appointed to facilitate the repurchase (the “Tender Agent”) by a Holder of a duly completed notice (the “Fundamental Change Repurchase Notice”) in the form set forth in Attachment 2 to the Form of Note attached hereto as Exhibit A, if the Notes are Physical Notes, or in compliance with the Depositary’s procedures for surrendering interests in Global Notes, if the Notes are Global Notes, in each case case, on or before the close of business on the Business Day immediately preceding the Fundamental Change Repurchase Date; and
(ii) delivery of the Notes, if the Notes are Physical Notes, to the Paying Agent or Tender Agent, as the case may be, at any time after delivery of the Fundamental Change Repurchase Notice (together with all necessary endorsements for transfer) at the Corporate Trust Office of the Paying Agent or the principal office of the Tender Agent located in the United States of America as notified by the Tender Agent to Holders and the Trustee, as applicableAgent, or book-entry transfer of the Notes, if the Notes are Global Notes, in compliance with the procedures of the Depositary, in each case case, such delivery or transfer being a condition to receipt by the Holder of the Fundamental Change Repurchase Price therefor. The Fundamental Change Repurchase Notice in respect of any Physical Notes to be repurchased shall state:
(i) in the case of if Physical Notes, Notes have been issued the certificate numbers of the Notes to be delivered for repurchase;
(ii) the portion of the principal amount of Notes to be repurchased, which must be $1,000 or an integral multiple thereof; and
(iii) that the Notes are to be repurchased by the Company pursuant to the applicable provisions of the Notes and this Indenture; provided, however, that if . If the Notes are Global Notes, to exercise the Fundamental Change Repurchase Notice repurchase right, Holders must comply surrender their Notes in accordance with appropriate applicable Depositary procedures. Notwithstanding anything herein to the contrary, any Holder delivering to the Paying Agent or Tender Agent, as the case may be, the Fundamental Change Repurchase Notice contemplated by this Section 15.02 shall have the right to withdraw, in whole or in part, such Fundamental Change Repurchase Notice at any time prior to the close of business on the Business Day immediately preceding the Fundamental Change Repurchase Date by delivery of a written notice of withdrawal to the Paying Agent or Tender Agent, as the case may be, in accordance with Section 15.03, or in accordance with the customary procedures of the Depository with respect to Global Notes. The Paying Agent or Tender Agent, as the case may be, shall promptly notify the Company of the receipt by it of any Fundamental Change Repurchase Notice or written notice of withdrawal thereof.
(c) On or before the 20th 15th Business Day after the occurrence of the effective date of a Fundamental Change, the Company shall provide to all Holders of Notes and the Trustee, the Conversion Agent (in the case of a Conversion Agent if other than the Trustee) and the Paying Agent (in the case of a Paying Agent if other than the Trustee) a written notice (the “Fundamental Change Company Notice”) of the occurrence of the effective date of the Fundamental Change and of the repurchase right at the option of the Holders arising as a result thereof. In the case of Physical Notes, such notice shall be by first class mail or, in the case of Global Notes, such notice shall be delivered in accordance with the applicable procedures of the Depositary. Simultaneously with providing such notice, the Company shall publish a notice containing the such information set forth in the Fundamental Change Company Notice on the Company’s website or through such other public medium as the Company may use at that time, including through the filing of a Form 8-K with the Commission. Each Fundamental Change Company Notice shall specify:
(i) the events causing the Fundamental Change;
(ii) the effective date of the Fundamental Change;
(iii) the last date on which a Holder may exercise the repurchase right pursuant to this Article 15;
(iv) the Fundamental Change Repurchase Price;
(v) the Fundamental Change Repurchase Date;
(vi) the name and address of the Paying Agent or Tender Agent, as the case may be, and the Conversion Agent, if applicable;
(vii) if applicable, the Conversion Rate and any adjustments to the Conversion Rate as a result of the a Fundamental Change (or related Make-Whole Fundamental Change);
(viii) that the Notes with respect to which a Fundamental Change Repurchase Notice has been delivered by a Holder may be converted only if the Holder validly withdraws the Fundamental Change Repurchase Notice in accordance with the terms of this Indenture; and
(ix) the procedures that Holders must follow to require the Company to repurchase their Notes. No failure of the Company to give the foregoing notices and no defect therein shall limit the Holders’ repurchase rights or affect the validity of the proceedings for the repurchase of the Notes pursuant to this Section 15.02. At the Company’s written request, given at least five days prior to the date the Fundamental Change Company Notice is to be sent (or such shorter period as may be agreed to by the Trustee), the Trustee shall give such notice in the Company’s name and at the Company’s expense; provided, however, that, in all cases, the text of such Fundamental Change Company Notice shall be prepared by the CompanyCompany and delivered to the Trustee at least three Business Days prior (or such shorter period as shall be acceptable to the Trustee).
(d) Notwithstanding anything to the contrary in this Article 15, the Company shall not be required to repurchase, or to make an offer to repurchase, the Notes upon a Fundamental Change if a third party makes such an offer in the same manner, at the same time and otherwise in compliance with the requirements for an offer made by the Company as set forth in this Article 15 and such third party purchases all Notes properly surrendered and not validly withdrawn under its offer in the same manner, at the same time and otherwise in compliance with the requirements for an offer made by the Company as set forth above.
(e) Notwithstanding the foregoing, no Notes may be repurchased by the Company on any date at the option of the Holders upon a Fundamental Change if the principal amount of the Notes has been accelerated, and such acceleration has not been rescinded, on or prior to such date (except in the case of an acceleration resulting from a Default by the Company in the payment of the Fundamental Change Repurchase Price with respect to such Notes). The Paying Agent or Tender Agent, as the case may be, will promptly return to the respective Holders thereof any Physical Notes held by it during the acceleration of the Notes (except in the case of an acceleration resulting from a Default by the Company in the payment of the Fundamental Change Repurchase Price with respect to such Notes), or any instructions for book-entry transfer of the Notes in compliance with the applicable procedures of the Depositary shall be deemed to have been cancelled, and, upon such return or cancellation, as the case may be, the Fundamental Change Repurchase Notice with respect thereto shall be deemed to have been withdrawn.
Appears in 1 contract
Repurchase at Option of Holders Upon a Fundamental Change. (a) If a Fundamental Change occurs at any time prior to the Maturity Date, each Holder shall have the right, at such Holder’s option, to require the Company to repurchase for cash all of such Holder’s Notes, or any portion of the principal amount thereof properly surrendered and not validly withdrawn pursuant to Section 15.03 that is equal to minimum denominations of $1,000 or an integral a multiple of $1,000 in excess thereof1,000, on the date (the “Fundamental Change Repurchase Date”) specified by the Company that is not less than 20 calendar days or more than 35 calendar days Business Days following the date of the Fundamental Change Company Notice at a repurchase price equal to 100% of the principal amount thereof, plus accrued and unpaid interest thereon to, but excluding, the Fundamental Change Repurchase Date (the “Fundamental Change Repurchase Price”), unless the Fundamental Change Repurchase Date falls after a Regular Record Date but on or prior to the Interest Payment Date to which such Regular Record Date relates, in which case the Company shall instead pay the full amount of accrued and unpaid interest (to, but excluding, such Interest Payment Date) to Holders the Holder of record as of such Regular Record Date, and the Fundamental Change Repurchase Price shall be equal to 100% of the principal amount of Notes to be repurchased pursuant to this Article 15; provided that . Any Notes so repurchased by the Company shall not be required to repurchase, or to make an offer to repurchase, the Notes upon a paid for in cash. The Fundamental Change if a third party makes such an offer Repurchase Date shall be subject to postponement in the same manner, at the same time and otherwise in compliance with the requirements for an offer made by order to allow the Company to comply with applicable law as set forth in a result of changes to such applicable law occurring after the date of this Section 15.02 and such third party purchases all Notes properly surrendered and not validly withdrawn under its offer in the same manner, at the same time and otherwise in compliance with the requirements for an offer made by the Company as set forth in this Section 15.02Indenture.
(b) Repurchases of Notes under this Section 15.02 shall be made, at the option of the Holder thereof, upon:
(i) delivery to the Paying Agent or tender agent appointed to facilitate the repurchase (the “Tender Agent”) by a Holder of a duly completed written notice (the “Fundamental Change Repurchase Notice”) in the form set forth in Attachment 2 to the Form of Note attached hereto as Exhibit A, if the Notes are Physical Notes, or in compliance with the Depositary’s procedures for surrendering interests in Global Notes, if the Notes are Global Notes, in each case on or before the close of business on the Business Day immediately preceding the Fundamental Change Repurchase Date; and
(ii) delivery of the Notes, if the Notes are Physical Notes, to the Paying Agent or Tender Agent, as the case may be, at any time after delivery of the Fundamental Change Repurchase Notice (together with all necessary endorsements for transfer) at the Corporate Trust Office of the Paying Agent or the principal office of the Tender Agent located in the United States of America as notified by the Tender Agent to Holders and the Trustee, as applicableAgent, or book-entry transfer of the Notes, if the Notes are Global Notes, in compliance with the procedures of the Depositary, in each case such delivery being a condition to receipt by the Holder of the Fundamental Change Repurchase Price therefor. The Fundamental Change Repurchase Xxx Xxxxxxxxxxx Xxxxxx Xxxxxxxxxx Notice in respect of any Notes to be repurchased shall state:
(i) in the case of Physical Notes, the certificate numbers of the Notes to be delivered for repurchase;
(ii) the portion of the principal amount of Notes to be repurchased, which must be $1,000 or an integral a multiple thereof; and
(iii) that the Notes are to be repurchased by the Company pursuant to the applicable provisions of the Notes and this Indenture; provided, however, that if the Notes are Global Notes, the Fundamental Change Repurchase Notice must comply with appropriate Depositary procedures. Notwithstanding anything herein to the contrary, any Holder delivering to the Paying Agent or Tender Agent, as the case may be, the Fundamental Change Repurchase Notice contemplated by this Section 15.02 shall have the right to withdraw, in whole or in part, such Fundamental Change Repurchase Notice at any time prior to the close of business on the Business Day immediately preceding the Fundamental Change Repurchase Date by delivery of a written notice of withdrawal to the Paying Agent or Tender Agent, as the case may be, in accordance with Section 15.03, or in accordance with the customary procedures of the Depository with respect to Global Notes. The Paying Agent or Tender Agent, as the case may be, shall promptly notify the Company of the receipt by it of any Fundamental Change Repurchase Notice or written notice of withdrawal thereof.
(c) On or before the 20th Business Day after the occurrence of the effective date of a Fundamental Change, the Company shall provide to all Holders of Notes and Holders, the Trustee, the Conversion Agent (in the case of a Conversion Agent other than the Trustee) and the Paying Agent (in the case of a Paying Agent other than the Trustee) a written notice (the “Fundamental Change Company Notice”) of the occurrence of the effective date of the Fundamental Change and of the resulting repurchase right at the option of the Holders arising as a result thereof. In the case of Physical Notes, such notice shall be by first class mail or, in the case of Global Notes, such notice shall be delivered in accordance with the applicable procedures of the Depositary. Simultaneously with providing such notice, the Company shall publish a notice containing the information set forth in the Fundamental Change Company Notice on the Company’s website or through such other public medium as the Company may use at that time. Each Fundamental Change Company Notice shall specify:
(i) the events causing the Fundamental Change;
(ii) the effective date of the Fundamental Change;
(iii) the last date on which a Holder may exercise the repurchase right pursuant to this Article 15;
(iv) the Fundamental Change Repurchase Price;
(v) the Fundamental Change Repurchase Date;
(vi) the name and address of the Paying Agent or Tender Agent, as the case may be, and the Conversion Agent, if applicable;
(vii) if applicable, the Conversion Rate and any adjustments to the Conversion Rate as a result of the such Fundamental Change (or related Make-Whole Fundamental Change);
(viii) that the Notes with respect to which a Fundamental Change Repurchase Notice has been delivered by a Holder may be converted only if the Holder validly withdraws the Fundamental Change Repurchase Notice in accordance with the terms of this Indenture; and
(ix) the procedures that Holders must follow to require the Company to repurchase their Notes. No failure of the Company to give the foregoing notices and no defect therein shall limit the Holders’ repurchase rights or affect the validity of the proceedings for the repurchase of the Notes pursuant to this Section 15.02. At the Company’s written request, given at least five days prior to the date the Fundamental Change Company Notice is to be sent (or such shorter period as may be agreed to by the Trustee)sent, the Trustee shall give such notice in the Company’s name and at the Company’s expense; provided, however, that, in all cases, the text of such Fundamental Change Company Notice shall be prepared by the Company.
(d) Notwithstanding the foregoing, no Notes may be repurchased by the Company on any date at the option of the Holders upon a Fundamental Change if the principal amount of the Notes has been accelerated, and such acceleration has not been rescinded, on or prior to such date (except in the case of an acceleration resulting from a Default by the Company in the payment of the Fundamental Change Repurchase Price with respect to such Notes). The Paying Agent or Tender Agent, as the case may be, will promptly return to the respective Holders thereof any Physical Notes held by it during the acceleration of the Notes (except in the case of an acceleration resulting from a Default by the Company in the payment of the Fundamental Change Repurchase Price with respect to such Notes), or any instructions for book-entry transfer of the Notes in compliance with the procedures of the Depositary shall be deemed to have been cancelled, and, upon such return or cancellation, as the case may be, the Fundamental Change Repurchase Notice with respect thereto shall be deemed to have been withdrawn.
(e) The Company shall not be required to repurchase or make an offer to repurchase Notes upon the occurrence of a Fundamental Change otherwise required under this Section 15.02 if a third party makes such an offer to purchase Notes in the same manner, at the same time and otherwise in compliance with the requirements for an offer made by the Company as set forth in this Indenture and such third party purchases all Notes properly surrendered and not validly withdrawn under such offer to purchase.
Appears in 1 contract
Samples: Indenture (Coupa Software Inc)
Repurchase at Option of Holders Upon a Fundamental Change. (a) If Subject to the other terms of this Section 9.01, if a Fundamental Change occurs at any time prior to the Maturity Dateoccurs, then each Holder shall will have the right, at such Holder’s option, right (the “Fundamental Change Repurchase Right”) to require the Company to repurchase for cash all of such Holder’s Notes, Notes (or any portion thereof that is equal to minimum denominations of $1,000 or a Note in an integral multiple of $1,000 in excess thereof, Authorized Denomination) on the date (the “Fundamental Change Repurchase Date”) specified by the Company that is not less than 20 calendar days or more than 35 calendar days following the date of Date for such Fundamental Change for a cash purchase price equal to the Fundamental Change Repurchase Price. The Fundamental Change Repurchase Date for any Fundamental Change will be a Business Day of the Company’s choosing that is no more than thirty five (35), nor less than twenty (20), Business Days after the date the Company sends the related Fundamental Change Repurchase Notice at pursuant to Section 9.01(d).
(b) The Fundamental Change Repurchase Price for any Note to be repurchased following a repurchase price Fundamental Change is an amount in cash equal to 100% of the principal amount thereof, of such Note plus accrued and unpaid interest thereon on such Note to, but excluding, the Fundamental Change Repurchase Date (the “for such Fundamental Change Repurchase Price”), unless the Fundamental Change Repurchase Date falls after a Regular Record Date but on or prior to the Interest Payment Date to which such Regular Record Date relates, in which case the Company shall instead pay the full amount of accrued and unpaid interest (to, but excluding, such Interest Payment Date) to Holders of record as of such Regular Record Date, and the Fundamental Change Repurchase Price shall be equal to 100% of the principal amount of Notes to be repurchased pursuant to this Article 15; provided that the Company shall not be required to repurchase, or to make an offer to repurchase, the Notes upon a Fundamental Change if a third party makes such an offer in the same manner, at the same time and otherwise in compliance with the requirements for an offer made by the Company as set forth in this Section 15.02 and such third party purchases all Notes properly surrendered and not validly withdrawn under its offer in the same manner, at the same time and otherwise in compliance with the requirements for an offer made by the Company as set forth in this Section 15.02.
(b) Repurchases of Notes under this Section 15.02 shall be made, at the option of the Holder thereof, upon:
(i) delivery to the Paying Agent or tender agent appointed to facilitate the repurchase (the “Tender Agent”) by a Holder of a duly completed notice (the “Fundamental Change Repurchase Notice”) in the form set forth in Attachment 2 to the Form of Note attached hereto as Exhibit A, if the Notes are Physical Notes, or in compliance with the Depositary’s procedures for surrendering interests in Global Notes, if the Notes are Global Notes, in each case on or before the close of business on the Business Day immediately preceding the Fundamental Change Repurchase Date; and
(ii) delivery of the Notes, if the Notes are Physical Notes, to the Paying Agent or Tender Agent, as the case may be, at any time after delivery of the Fundamental Change Repurchase Notice (together with all necessary endorsements for transfer) at the Corporate Trust Office of the Paying Agent or the principal office of the Tender Agent located in the United States of America as notified by the Tender Agent to Holders and the Trustee, as applicable, or book-entry transfer of the Notes, if the Notes are Global Notes, in compliance with the procedures of the Depositary, in each case such delivery being a condition to receipt by the Holder of the Fundamental Change Repurchase Price therefor. The Fundamental Change Repurchase Notice in respect of any Notes to be repurchased shall state:
(i) in the case of Physical Notes, the certificate numbers of the Notes to be delivered for repurchase;
(ii) the portion of the principal amount of Notes to be repurchased, which must be $1,000 or an integral multiple thereof; and
(iii) that the Notes are to be repurchased by the Company pursuant to the applicable provisions of the Notes and this IndentureChange; provided, however, that if the Notes are Global Notes, the such Fundamental Change Repurchase Notice must comply with appropriate Depositary procedures. Notwithstanding anything herein Date is after a Regular Record Date and on or before the next Interest Payment Date, then (i) the Holder of such Note at the Close of Business on such Regular Record Date will be entitled, notwithstanding such repurchase, to the contraryreceive, any Holder delivering to the Paying Agent or Tender Agent, as the case may be, the on such Fundamental Change Repurchase Notice contemplated by this Section 15.02 shall Date, the unpaid interest that would have the right to withdrawaccrued on such Note to, in whole or in partbut excluding, such Fundamental Change Repurchase Notice at any time prior Date (assuming, solely for these purposes, that such Note remained outstanding through such Fundamental Change Repurchase Date, if such Fundamental Change Repurchase Date is before such Interest Payment Date); and (ii) the Fundamental Change Repurchase Price will not include accrued and unpaid interest on such Note to, but excluding, such Fundamental Change Repurchase Date.
(c) Notwithstanding anything to the close contrary above, if the principal amount of business the Notes has been accelerated (other than as a result of the Company’s failure to pay the Fundamental Change Repurchase Price and any related interest described above on the Business Day immediately preceding Fundamental Change Repurchase Date) and such acceleration has not been rescinded on or before the Fundamental Change Repurchase Date by delivery of for a written notice of withdrawal Repurchase upon Fundamental Change , then (i) the Company shall not repurchase any Notes pursuant to this Section 9.01; and (ii) the Company will cause any Notes theretofore surrendered for such Repurchase upon Fundamental Change to be returned to the Paying Agent or Tender AgentHolders thereof (or, as the case may be, in accordance with Section 15.03, or in accordance with the customary procedures of the Depository if applicable with respect to Global Notes. The , cancel any instructions for book-entry transfer to the Company, the Trustee or the Paying Agent or Tender Agent, as the case may be, shall promptly notify the Company of the receipt by it of any Fundamental Change Repurchase Notice or written notice of withdrawal thereofapplicable beneficial interest in such Notes in accordance with the Depositary Procedures).
(cd) On or before the 20th Business Day twentieth (20th) calendar day after the occurrence of the effective date of a Fundamental Change, the Company shall will provide to all Holders each Holder (and to any beneficial owner of Notes and the Trusteea Global Note, if required by applicable law), the Conversion Agent (in the case of a Conversion Agent other than the Trustee) Trustee and the Paying Agent a written notice of such Fundamental Change (in the case of a Paying Agent other than the Trustee) a notice (the “Fundamental Change Company Repurchase Notice”) of the occurrence of the effective date of the ). Such Fundamental Change and of the repurchase right at the option of the Holders arising as a result thereof. In the case of Physical Notes, such notice shall be by first class mail or, in the case of Global Notes, such notice shall be delivered in accordance with the applicable procedures of the Depositary. Simultaneously with providing such notice, the Company shall publish a notice containing the information set forth in the Fundamental Change Company Repurchase Notice on the Company’s website or through such other public medium as the Company may use at that time. Each Fundamental Change Company Notice shall specifymust state:
(i) briefly, the events causing the such Fundamental Change;
(ii) the effective date of the such Fundamental Change;
(iii) the last date on which procedures that a Holder may exercise must follow to require the Company to repurchase right its Notes pursuant to this Article 15Section 9.01, including the deadline for exercising the Fundamental Change Repurchase Right and the procedures for submitting and withdrawing a Fundamental Change Repurchase Notice;
(iv) the Fundamental Change Repurchase PriceDate for such Fundamental Change;
(v) the Fundamental Change Repurchase Price per $1,000 principal amount of Notes for such Fundamental Change (and, if such Fundamental Change Repurchase Date is after a Regular Record Date and on or before the next Interest Payment Date, the amount, manner and timing of the interest payment payable pursuant to the proviso to Section 9.01(b));
(vi) the name and address of the Paying Agent or Tender Agent, as the case may be, and the Conversion Exchange Agent, if applicable;
(vii) if applicable, the Conversion Exchange Rate in effect on the date of such Fundamental Change Repurchase Notice and a description and quantification of any adjustments to the Conversion Exchange Rate as a that may result of the from such Fundamental ChangeChange (including pursuant to Section 8.03);
(viii) that the Notes with respect to for which a Fundamental Change Repurchase Notice has been duly tendered and not duly withdrawn must be delivered by a Holder may be converted only if to the Paying Agent for the Holder validly withdraws thereof to be entitled to receive the Fundamental Change Repurchase Price;
(ix) that Notes (or any portion thereof) that are subject to a Fundamental Change Repurchase Notice that has been duly tendered may be exchanged only if such Fundamental Change Repurchase Notice is withdrawn in accordance with the terms of this Indenture; and
(ixx) the procedures that Holders must follow to require CUSIP and ISIN numbers, if any, of the Company to repurchase their Notes. No Neither the failure of the Company to give the foregoing notices and no deliver a Fundamental Change Repurchase Notice nor any defect therein shall in a Fundamental Change Repurchase Notice will limit the Holders’ repurchase rights Fundamental Change Repurchase Right of any Holder or otherwise affect the validity of the any proceedings for the repurchase of the Notes pursuant relating to this Section 15.02. At the Company’s request, given at least five days prior to the date the any Repurchase Upon Fundamental Change Company Notice is to be sent (or such shorter period as may be agreed to by the Trustee), the Trustee shall give such notice in the Company’s name and at the Company’s expense; provided, however, that, in all cases, the text of such Fundamental Change Company Notice shall be prepared by the CompanyChange.
(d) Notwithstanding the foregoing, no Notes may be repurchased by the Company on any date at the option of the Holders upon a Fundamental Change if the principal amount of the Notes has been accelerated, and such acceleration has not been rescinded, on or prior to such date (except in the case of an acceleration resulting from a Default by the Company in the payment of the Fundamental Change Repurchase Price with respect to such Notes). The Paying Agent or Tender Agent, as the case may be, will promptly return to the respective Holders thereof any Physical Notes held by it during the acceleration of the Notes (except in the case of an acceleration resulting from a Default by the Company in the payment of the Fundamental Change Repurchase Price with respect to such Notes), or any instructions for book-entry transfer of the Notes in compliance with the procedures of the Depositary shall be deemed to have been cancelled, and, upon such return or cancellation, as the case may be, the Fundamental Change Repurchase Notice with respect thereto shall be deemed to have been withdrawn.
Appears in 1 contract
Samples: Ninth Supplemental Indenture (Weatherford International PLC)
Repurchase at Option of Holders Upon a Fundamental Change.
(a) If Subject to Section 15.02(f), if a Fundamental Change occurs at any time prior to the Maturity Datetime, each Holder shall have the right, at such Holder’s option, to require the Company to repurchase for cash all of such Holder’s Notes, or any portion of the principal amount thereof properly surrendered and not validly withdrawn pursuant to Section 15.03 that is equal to a minimum denominations of $1,000 or an integral multiple of $1,000 in excess thereof1,000, on the date (the “Fundamental Change Repurchase Date”) specified by the Company that is not less than 20 calendar days Business Days or more than 35 calendar days Business Days following the date of the Fundamental Change Company Notice at a repurchase price equal to 100% of the principal amount thereof, plus accrued and unpaid interest thereon to, but excluding, the Fundamental Change Repurchase Date (the “Fundamental Change Repurchase Price”), unless the Fundamental Change Repurchase Date falls after a Regular Record Date but on or prior to the Interest Payment Date to which such Regular Record Date relates, in which case the Company shall instead pay the full amount of accrued and unpaid interest (to, but excluding, such Interest Payment Date) to Holders of record as of the close of business on such Regular Record Date on, or at the Company’s election, before such Interest Payment Date, and the Fundamental Change Repurchase Price shall be equal to 100% of the principal amount of Notes to be repurchased pursuant to this Article 15; provided that the Company shall not be required to repurchase, or to make an offer to repurchase, the Notes upon a Fundamental Change if a third party makes such an offer in the same manner, at the same time and otherwise in compliance with the requirements for an offer made by the Company as set forth in this Section 15.02 and such third party purchases all Notes properly surrendered and not validly withdrawn under its offer in the same manner, at the same time and otherwise in compliance with the requirements for an offer made by the Company as set forth in this Section 15.02.
(b) Repurchases of Notes under this Section 15.02 shall be made, at the option of the Holder thereof, upon:
(i) delivery to the Paying Agent or tender agent appointed to facilitate the repurchase (the “Tender Agent”) by a Holder of a duly completed notice (the “Fundamental Change Repurchase Notice”) in the form set forth in Attachment 2 to the Form of Note attached hereto as Exhibit A, if the Notes are Physical Notes, or in compliance with the Depositary’s procedures for surrendering interests in Global Notes, if the Notes are Global Notes, in each case case, on or before the close of business on the Business Day immediately preceding the Fundamental Change Repurchase Date; and
(ii) delivery of the Notes, if the Notes are Physical Notes, to the Paying Agent or Tender Agent, as the case may be, at any time after delivery of the Fundamental Change Repurchase Notice (together with all necessary endorsements for transfer) at the Corporate Trust Office of the Paying Agent or the principal office of the Tender Agent located in the United States of America as notified by the Tender Agent to Holders and the Trustee, as applicableAgent, or book-entry transfer of the Notes, if the Notes are Global Notes, in compliance with the procedures of the Depositary, in each case case, such delivery or transfer being a condition to receipt by the Holder of the Fundamental Change Repurchase Price therefor. The Fundamental Change Repurchase Notice in respect of any Physical Notes to be repurchased shall state:
(i) in the case of Physical Notes, the certificate numbers of the Notes to be delivered for repurchase;
(ii) the portion of the principal amount of Notes to be repurchased, which must be $1,000 or an integral multiple thereof; and
(iii) that the Notes are to be repurchased by the Company pursuant to the applicable provisions of the Notes and this Indenture; provided, however, that if . If the Notes are Global Notes, to exercise the Fundamental Change Repurchase Notice repurchase right, Holders must comply surrender their Notes in accordance with appropriate applicable Depositary procedures. Notwithstanding anything herein to the contrary, any Holder delivering to the Paying Agent or Tender Agent, as the case may be, the Fundamental Change Repurchase Notice contemplated by this Section 15.02 shall have the right to withdraw, in whole or in part, such Fundamental Change Repurchase Notice at any time prior to the close of business on the Business Day immediately preceding the Fundamental Change Repurchase Date by delivery of a written notice of withdrawal to the Paying Agent or Tender Agent, as the case may be, in accordance with Section 15.0315.03 in the case of Physical Notes, or in accordance with through the customary applicable procedures of the Depository with respect to Depositary, in the case of Global Notes. The Paying Agent or Tender Agent, as the case may be, shall promptly notify the Company of the receipt by it of any Fundamental Change Repurchase Notice or written notice of withdrawal thereof.
(c) On or before the 20th Business Day after the occurrence of the effective date of a Fundamental Change, the Company shall provide to all Holders of Notes and the Trustee, the Conversion Agent (in the case of a Conversion Agent other than the Trustee) Trustee and the Paying Agent (in the case of a Paying Agent other than the Trustee) a notice (the “Fundamental Change Company Notice”) of the occurrence of the effective date of the Fundamental Change and of the resulting repurchase right at the option of the Holders arising as a result thereof. In the case of Physical Notes, such notice shall be by first class mail or, in the case of Global Notes, such notice shall be delivered in accordance with the applicable procedures of the Depositary. Simultaneously with providing such notice, the Company shall publish a notice containing the such information set forth in the Fundamental Change Company Notice on the Company’s website or through such other public medium as the Company may use at that time. Each Fundamental Change Company Notice shall specify:
(i) the events causing the Fundamental Change;
(ii) the effective date of the Fundamental Change;
(iii) the last date on which a Holder may exercise the repurchase right pursuant to this Article 15;
(iv) the Fundamental Change Repurchase Price;
(v) the Fundamental Change Repurchase Date;
(vi) the name and address of the Paying Agent or Tender Agent, as the case may be, and the Conversion Agent, if applicable;
(vii) if applicable, the Conversion Rate and any adjustments to the Conversion Rate as a result of the Fundamental Change (or related Make-Whole Fundamental Change);
(viii) that the Notes with respect to which a Fundamental Change Repurchase Notice has been delivered by a Holder may be converted only if the Holder validly withdraws the Fundamental Change Repurchase Notice in accordance with the terms of this Indenture; and
(ix) the procedures that Holders must follow to require the Company to repurchase their Notes. No failure of the Company to give the foregoing notices and no defect therein shall limit the Holders’ repurchase rights or affect the validity of the proceedings for the repurchase of the Notes pursuant to this Section 15.02. At the Company’s written request, given at least five days prior to the date the Fundamental Change Company Notice two (2) Business Days before such notice is to be sent (or such shorter period as may shall be agreed acceptable to by the Trustee), ) the Trustee shall give such notice in the Company’s name and at the Company’s expense; provided, however, that, in all cases, the text of such Fundamental Change Company Notice shall be prepared by the Company.
(d) Notwithstanding anything to the contrary in this Article 15, the Company shall not be required to repurchase, or to make an offer to repurchase, the Notes upon a Fundamental Change if a third party makes such an offer in the same manner, at the same time and otherwise in compliance with the requirements for an offer made by the Company as set forth in this Article 15 and such third party purchases all Notes properly surrendered and not validly withdrawn under its offer in the same manner, at the same time and otherwise in compliance with the requirements for an offer made by the Company as set forth above.
(e) Notwithstanding the foregoing, no Notes may be repurchased by the Company on any date at the option of the Holders upon a Fundamental Change if the principal amount of the Notes has been accelerated, and such acceleration has not been rescinded, on or prior to such date (except in the case of an acceleration resulting from a Default by the Company in the payment of the Fundamental Change Repurchase Price with respect to such Notes). The Paying Agent or Tender Agent, as the case may be, will promptly return to the respective Holders thereof any Physical Notes held by it during the acceleration of the Notes (except in the case of an acceleration resulting from a Default by the Company in the payment of the Fundamental Change Repurchase Price with respect to such Notes), or any instructions for book-entry transfer of the Notes in compliance with the applicable procedures of the Depositary shall be deemed to have been cancelled, and, upon such return or cancellation, as the case may be, the Fundamental Change Repurchase Notice with respect thereto shall be deemed to have been withdrawn.
(f) Notwithstanding anything to the contrary in this Section 15.02, the Company shall not be required to send a Fundamental Change Company Notice, or offer to repurchase or repurchase any Notes, as set forth in this Article 15, in connection with a Fundamental Change occurring pursuant to clause (b)(A) or (B) of the definition thereof, if: (i) such Fundamental Change constitutes a Share Exchange Event whose Reference Property consists entirely of cash in U.S. dollars; (ii) immediately after such Fundamental Change, the Notes become convertible (pursuant to Section 14.07 and, if applicable, Section 14.03) into consideration that consists solely of U.S. dollars in an amount per $1,000 principal amount of Notes that equals or exceeds the Fundamental Change Repurchase Price per $1,000 principal amount of Notes (calculated assuming that the same includes the maximum amount of accrued but unpaid interest payable as part of the Fundamental Change Repurchase Price for such Fundamental Change); and (iii) the Company timely sends the notice relating to such Fundamental Change required pursuant to Section 14.01(b)(iii). Any Fundamental Change with respect to which, in accordance with the provisions described in this Section 15.02(f), the Company does not offer to repurchase any Notes is referred to as herein as an “Exempted Fundamental Change.”
Appears in 1 contract
Samples: Indenture (Axon Enterprise, Inc.)
Repurchase at Option of Holders Upon a Fundamental Change. (a) If Subject to Section 15.02(f), if a Fundamental Change occurs at any time prior to the Maturity Datetime, each Holder shall have the right, at such Holder’s option, to require the Company to repurchase for cash all of such HolderXxxxxx’s Notes, or any portion of the principal amount thereof properly surrendered and not validly withdrawn pursuant to Section 15.03 that is equal to minimum denominations of $1,000 or an integral multiple of $1,000 in excess thereof1,000, on the date (the “Fundamental Change Repurchase Date”) specified by the Company that is not less than 20 calendar days Business Days or more than 35 calendar days Business Days following the date of the Fundamental Change Company Notice at a repurchase price equal to 100% of the principal amount thereof, plus accrued and unpaid interest interest, if any, thereon to, but excluding, the Fundamental Change Repurchase Date (the “Fundamental Change Repurchase Price”), unless the Fundamental Change Repurchase Date falls after a Regular Special Interest Record Date but on or prior to the Special Interest Payment Date to which such Regular Special Interest Record Date relates, in which case the Company shall instead pay the full amount of accrued and unpaid interest (to, but excluding, such Interest Payment Date) to Holders of record as of the close of business on such Regular Special Interest Record Date on, or at the Company’s election, before such Special Interest Payment Date, and the Fundamental Change Repurchase Price shall be equal to 100% of the principal amount of Notes to be repurchased pursuant to this Article 15; provided that the Company shall not be required to repurchase, or to make an offer to repurchase, the Notes upon a Fundamental Change if a third party makes such an offer in the same manner, at the same time and otherwise in compliance with the requirements for an offer made by the Company as set forth in this Section 15.02 and such third party purchases all Notes properly surrendered and not validly withdrawn under its offer in the same manner, at the same time and otherwise in compliance with the requirements for an offer made by the Company as set forth in this Section 15.02.
(b) Repurchases of Notes under this Section 15.02 shall be made, at the option of the Holder thereof, upon:
(i) delivery to the Paying Agent or tender agent appointed to facilitate the repurchase (the “Tender Agent”) by a Holder of a duly completed notice (the “Fundamental Change Repurchase Notice”) in the form set forth in Attachment 2 to the Form of Note attached hereto as Exhibit A, if the Notes are Physical Notes, or in compliance with the Depositary’s applicable procedures for surrendering interests in Global Notes, if the Notes are Global Notes, in each case case, on or before the close of business on the Business Day immediately preceding the Fundamental Change Repurchase Date; and
(ii) delivery of the Notes, if the Notes are Physical Notes, to the Paying Agent or Tender Agent, as the case may be, at any time after delivery of the Fundamental Change Repurchase Notice (together with all necessary endorsements for transfer) at the Corporate Trust Office of the Paying Agent or the principal office of the Tender Agent located in the United States of America as notified by the Tender Agent to Holders and the Trustee, as applicableAgent, or book-entry transfer of the Notes, if the Notes are Global Notes, in compliance with the applicable procedures of the Depositary, in each case case, such delivery or transfer being a condition to receipt by the Holder of the Fundamental Change Repurchase Price therefor. The Fundamental Change Repurchase Notice in respect of any Physical Notes to be repurchased shall state:
(i) in the case of Physical Notes, the certificate numbers of the Notes to be delivered for repurchase;
(ii) the portion of the principal amount of Notes to be repurchased, which must be $1,000 or an integral multiple thereof; and
(iii) that the Notes are to be repurchased by the Company pursuant to the applicable provisions of the Notes and this Indenture; provided, however, that if . If the Notes are Global Notes, to exercise the Fundamental Change Repurchase Notice repurchase right, Holders must comply surrender their Notes in accordance with appropriate applicable Depositary procedures. Notwithstanding anything herein to the contrary, any Holder delivering to the Paying Agent or Tender Agent, as the case may be, the Fundamental Change Repurchase Notice contemplated by this Section 15.02 shall have the right to withdraw, in whole or in part, such Fundamental Change Repurchase Notice at any time prior to the close of business on the Business Day immediately preceding the Fundamental Change Repurchase Date by delivery of a written notice of withdrawal to the Paying Agent or Tender Agent, as the case may be, in accordance with Section 15.03, or in accordance with the customary procedures of the Depository with respect to Global Notes. The Paying Agent or Tender Agent, as the case may be, shall promptly notify the Company of the receipt by it of any Fundamental Change Repurchase Notice or written notice of withdrawal thereof.
(c) On or before the 20th Business Day after the occurrence of the effective date of a Fundamental Change, the Company shall provide to all Holders of Notes and the Trustee, the Conversion Agent (in the case of a Conversion Agent other than the Trustee) Trustee and the Paying Agent (in the case of a Paying Agent other than the Trustee) a notice (the “Fundamental Change Company Notice”) of the occurrence of the effective date of the Fundamental Change and of the resulting repurchase right at the option of the Holders arising as a result thereof. In the case of Physical Notes, such notice shall be by first class mail or, in the case of Global Notes, such notice shall be delivered in accordance with the applicable procedures of the Depositary. Simultaneously with providing such notice, the Company shall publish a notice containing the such information set forth in the Fundamental Change Company Notice on the Company’s website or through such other public medium as the Company may use at that time. Each Fundamental Change Company Notice shall specify:
(i) the events causing the Fundamental Change;
(ii) the effective date of the Fundamental Change;
(iii) the last date on which a Holder may exercise the repurchase right pursuant to this Article 15;
(iv) the Fundamental Change Repurchase Price;
(v) the Fundamental Change Repurchase Date;
(vi) the name and address of the Paying Agent or Tender Agent, as the case may be, and the Conversion Agent, if applicable;
(vii) if applicable, the Conversion Rate and any adjustments to the Conversion Rate as a result of the Fundamental Change (or related Make-Whole Fundamental Change);
(viii) that the Notes with respect to which a Fundamental Change Repurchase Notice has been delivered by a Holder may be converted only if the Holder validly withdraws the Fundamental Change Repurchase Notice in accordance with the terms of this Indenture; and
(ix) the procedures that Holders must follow to require the Company to repurchase their Notes. No failure of the Company to give the foregoing notices and no defect therein shall limit the Holders’ repurchase rights or affect the validity of the proceedings for the repurchase of the Notes pursuant to this Section 15.02. At the Company’s written request, given at least five days prior to the date the Fundamental Change Company Notice two (2) Business Days before such notice is to be sent (or such shorter period as may shall be agreed acceptable to by the Trustee), the Trustee shall give such notice in the Company’s name and at the Company’s expense; provided, however, that, in all cases, the text of such Fundamental Change Company Notice shall be prepared by the Company.
(d) Notwithstanding anything to the contrary in this Article 15, the Company shall not be required to repurchase, or to make an offer to repurchase, the Notes upon a Fundamental Change if a third party makes such an offer in the same manner, at the same time and otherwise in compliance with the requirements for an offer made by the Company as set forth in this Article 15 and such third party purchases all Notes properly surrendered and not validly withdrawn under its offer in the same manner, at the same time and otherwise in compliance with the requirements for an offer made by the Company as set forth above.
(e) Notwithstanding the foregoing, no Notes may be repurchased by the Company on any date at the option of the Holders upon a Fundamental Change if the principal amount of the Notes has been accelerated, and such acceleration has not been rescinded, on or prior to such date (except in the case of an acceleration resulting from a Default by the Company in the payment of the Fundamental Change Repurchase Price with respect to such Notes). The Paying Agent or Tender Agent, as the case may be, will promptly return to the respective Holders thereof any Physical Notes held by it during the acceleration of the Notes (except in the case of an acceleration resulting from a Default by the Company in the payment of the Fundamental Change Repurchase Price with respect to such Notes), or any instructions for book-entry transfer of the Notes in compliance with the applicable procedures of the Depositary shall be deemed to have been cancelled, and, upon such return or cancellation, as the case may be, the Fundamental Change Repurchase Notice with respect thereto shall be deemed to have been withdrawn.
(f) Notwithstanding anything to the contrary in this Section 15.02, the Company shall not be required to send a Fundamental Change Company Notice, or offer to repurchase or repurchase any Notes, as set forth in this Article 15, in connection with a Fundamental Change occurring pursuant to clause (b)(A) or (B) (or pursuant to clause (a) that also constitutes a Fundamental Change occurring pursuant to clause (b)(A) or (B)) of the definition thereof, if: (i) such Fundamental Change constitutes a Share Exchange Event whose Reference Property consists entirely of cash in U.S. dollars; (ii) immediately after such Fundamental Change, the Notes become convertible (pursuant to Section 14.07 and, if applicable, Section 14.03) into consideration that consists solely of U.S. dollars in an amount per $1,000 principal amount of Notes that equals or exceeds the Fundamental Change Repurchase Price per $1,000 principal amount of Notes (calculated assuming that the same includes the maximum amount of any accrued but unpaid interest payable as part of the Fundamental Change Repurchase Price for such Fundamental Change); and (iii) the Company timely sends the notice relating to such Fundamental Change required pursuant to Section 14.01(b)(iii). Any Fundamental Change with respect to which, in accordance with the provisions described in this Section 15.02(f), the Company does not offer to repurchase any Notes is referred to herein as an “Exempted Fundamental Change.”
Appears in 1 contract
Samples: Indenture (Datadog, Inc.)
Repurchase at Option of Holders Upon a Fundamental Change. (a) If In the event a Fundamental Change occurs shall occur at any time prior to the Maturity Datewhen any Notes remain outstanding, each Holder Noteholder shall have the right, at such Holderholder’s option, to require the Company to repurchase for cash purchase all of such Holder’s Notes, holders’ Notes or any portion of the principal amount thereof that is equal to minimum denominations of $1,000 or an integral multiple of $1,000 in excess thereof, thereof on a date specified by the date Company (the “Fundamental Change Repurchase Date”) specified by the Company that is not less than 20 calendar days or nor more than 35 calendar days following Business Days (or any longer period required by law) after the date on which the Company gives the notice of the such Fundamental Change Company Notice pursuant to clause (b) below, at a repurchase purchase price in cash equal to 100% of the principal amount thereof, plus together with accrued and unpaid interest thereon to, but excluding, the Fundamental Change Repurchase Date (the “Fundamental Change Repurchase Price”), unless the . If such Fundamental Change Repurchase Date falls after a Regular Interest Record Date but and on or prior to the corresponding Interest Payment Date to which such Regular Record Date relatesDate, in which case the Company shall instead pay the principal amount to the Noteholders surrendering the Notes for repurchase pursuant to this Section 9.01, and pay the full amount of accrued and unpaid interest (to, but excluding, payable on such Interest Payment Date) Date to Holders the holder of record as on the close of such Regular business on the corresponding Interest Record Date, and the Fundamental Change Repurchase Price shall be equal to 100% of the principal amount of Notes to be repurchased pursuant to this Article 15; provided that the Company shall not be required to repurchase, or to make an offer to repurchase, the Notes upon a Fundamental Change if a third party makes such an offer in the same manner, at the same time and otherwise in compliance with the requirements for an offer made by the Company as set forth in this Section 15.02 and such third party purchases all Notes properly surrendered and not validly withdrawn under its offer in the same manner, at the same time and otherwise in compliance with the requirements for an offer made by the Company as set forth in this Section 15.02.
(b) . Repurchases of Notes under this Section 15.02 9.01 shall be mademade on the Fundamental Change Repurchase Date, at the option of the Holder holder thereof, upon:
(i) delivery to the Paying Agent or tender agent appointed to facilitate the repurchase (the “Tender Agent”) by a Holder holder of a duly completed notice in the form set forth on the reverse of the Note as Exhibit C thereto (the “Fundamental Change Repurchase Notice”) in the form set forth in Attachment 2 to the Form of Note attached hereto as Exhibit A, if the Notes are Physical Notes, or in compliance with the Depositary’s procedures for surrendering interests in Global Notes, if the Notes are Global Notes, in each case on or before prior to the close of business on the Business Day immediately preceding the Fundamental Change Repurchase Date; and
(ii) delivery or book-entry transfer of the Notes, if the Notes are Physical Notes, to the Paying Agent or Tender Agent, as the case may be, at any time after delivery of the Fundamental Change Repurchase Notice (together with all necessary endorsements for transferendorsements) at the Corporate Trust Office corporate trust office of the Paying Agent or the principal office of the Tender Agent located in the United States of America as notified by the Tender Agent to Holders and the TrusteeStates, as applicable, or such book-entry transfer of the Notes, if the Notes are Global Notes, in compliance with the procedures of the Depositary, in each case such or delivery being a condition to receipt by the Holder holder of the Fundamental Change Repurchase Price therefor; provided that such Fundamental Change Repurchase Price shall be so paid pursuant to this Section 9.01 only if the Note so delivered to the Paying Agent shall conform in all respects to the description thereof in the related Fundamental Change Repurchase Notice. The Fundamental Change Repurchase Notice in respect of any Notes to be repurchased shall state:
(iA) in the case of Physical Notesif certificated, the certificate numbers of the Notes to be delivered for repurchase;
(iiB) the portion of the principal amount of Notes to be repurchased, which must be $1,000 or an integral multiple thereof; and
(iiiC) that the Notes are to be repurchased by the Company pursuant to the applicable provisions of the Notes and this Supplemental Indenture; provided, however, that if the Notes are Global Notesnot in certificated form, the Fundamental Change Repurchase Notice must comply with appropriate Depositary procedures. Notwithstanding anything herein to the contrary, any Holder delivering to the Paying Agent or Tender Agent, as the case may be, the Fundamental Change Repurchase Notice contemplated by this Section 15.02 shall have the right to withdraw, in whole or in part, such Fundamental Change Repurchase Notice at any time prior to the close of business on the Business Day immediately preceding the Fundamental Change Repurchase Date by delivery of a written notice of withdrawal to the Paying Agent or Tender Agent, as the case may be, in accordance with Section 15.03, or in accordance with the customary procedures of the Depository with respect to Global Notes. The Paying Agent or Tender Agent, as the case may be, shall promptly notify the Company of the receipt by it of any Fundamental Change Repurchase Notice or written notice of withdrawal thereof.
(c) On or before the 20th Business Day after the occurrence of the effective date of a Fundamental Change, the Company shall provide to all Holders of Notes and the Trustee, the Conversion Agent (in the case of a Conversion Agent other than the Trustee) and the Paying Agent (in the case of a Paying Agent other than the Trustee) a notice (the “Fundamental Change Company Notice”) of the occurrence of the effective date of the Fundamental Change and of the Any repurchase right at the option of the Holders arising as a result thereof. In the case of Physical Notes, such notice shall be by first class mail or, in the case of Global Notes, such notice shall be delivered in accordance with the applicable procedures of the Depositary. Simultaneously with providing such notice, the Company shall publish a notice containing the information set forth in the Fundamental Change Company Notice on the Company’s website or through such other public medium as the Company may use at that time. Each Fundamental Change Company Notice shall specify:
(i) the events causing the Fundamental Change;
(ii) the effective date of the Fundamental Change;
(iii) the last date on which a Holder may exercise the repurchase right pursuant to this Article 15;
(iv) the Fundamental Change Repurchase Price;
(v) the Fundamental Change Repurchase Date;
(vi) the name and address of the Paying Agent or Tender Agent, as the case may be, and the Conversion Agent, if applicable;
(vii) if applicable, the Conversion Rate and any adjustments to the Conversion Rate as a result of the Fundamental Change;
(viii) that the Notes with respect to which a Fundamental Change Repurchase Notice has been delivered by a Holder may be converted only if the Holder validly withdraws the Fundamental Change Repurchase Notice in accordance with the terms of this Indenture; and
(ix) the procedures that Holders must follow to require the Company to repurchase their Notes. No failure of the Company to give the foregoing notices and no defect therein shall limit the Holders’ repurchase rights or affect the validity of the proceedings for the repurchase of the Notes pursuant to this Section 15.02. At the Company’s request, given at least five days prior to the date the Fundamental Change Company Notice is to be sent (or such shorter period as may be agreed to by the Trustee), the Trustee shall give such notice in the Company’s name and at the Company’s expense; provided, however, that, in all cases, the text of such Fundamental Change Company Notice shall be prepared by the Company.
(d) Notwithstanding the foregoing, no Notes may be repurchased by the Company on any date at contemplated pursuant to the option provisions of the Holders upon a Fundamental Change if the principal amount of the Notes has been accelerated, and such acceleration has not been rescinded, on or prior to such date (except in the case of an acceleration resulting from a Default this Section 9.01 shall be consummated by the Company in the payment of the Fundamental Change Repurchase Price with respect to such Notes). The Paying Agent or Tender Agent, as promptly following the case may be, will promptly return to the respective Holders thereof any Physical Notes held by it during the acceleration later of the Notes (except in the case of an acceleration resulting from a Default by the Company in the payment of Business Day following the Fundamental Change Repurchase Price with respect to such Notes), or any instructions for Date and the time of the book-entry transfer or delivery of the Notes Note as described in compliance with the procedures of the Depositary shall be deemed to have been cancelled, and, upon such return or cancellation, as the case may be, the Fundamental Change Repurchase Notice with respect thereto shall be deemed to have been withdrawnSection 9.01(a).
Appears in 1 contract
Repurchase at Option of Holders Upon a Fundamental Change. (a) If a Fundamental Change occurs at any time prior to the Maturity Datetime, each Holder shall have the right, at such Holder’s option, to require the Company to repurchase for cash all of such Holder’s Notes, or any portion thereof that is equal to minimum denominations of $1,000 or an integral multiple of $1,000 in excess thereof1,000, on the date (the “Fundamental Change Repurchase Date”) specified by the Company that is not less than 20 calendar days Business Days or more than 35 calendar days 30 Business Days following the date of the Fundamental Change Company Notice (but subject to extension to comply with applicable law) at a repurchase price equal to 100% of the principal amount thereof, plus accrued and unpaid interest thereon to, but excluding, the Fundamental Change Repurchase Date (the “Fundamental Change Repurchase Price”), unless the Fundamental Change Repurchase Date falls after a Regular Record Date but on or prior to the Interest Payment Date to which such Regular Record Date relates, in which case the Company shall instead pay the full amount of accrued and unpaid interest (to, but excluding, such Interest Payment Date) to Holders of record as of such Regular Record Date, and the Fundamental Change Repurchase Price shall be equal to 100% of the principal amount of Notes to be repurchased pursuant to this Article 15; provided that the Company shall not be required to repurchase, or to make an offer to repurchase, the Notes upon a Fundamental Change if a third party makes such an offer in the same manner, at the same time and otherwise in compliance with the requirements for an offer made by the Company as set forth in this Section 15.02 and such third party purchases all Notes properly surrendered and not validly withdrawn under its offer in the same manner, at the same time and otherwise in compliance with the requirements for an offer made by the Company as set forth in this Section 15.0214.01.
(b) Repurchases of Notes under this Section 15.02 14.01 shall be made, at the option of the Holder thereof, upon:
(i) delivery to the Paying Agent or tender agent appointed to facilitate the repurchase (the “Tender Agent”) by a Holder of a duly completed notice as set forth in the Form of Repurchase Notice (the “Fundamental Change Repurchase Notice”) in the form set forth in Attachment 2 to the Form of Note attached hereto as Exhibit A), if the Notes are Physical Notes, or in compliance with the Depositary’s procedures for surrendering interests in Global Notes, if the Notes are Global Notes, in each case on or before the close of business on the Business Day immediately preceding the Fundamental Change Repurchase Date; and
(ii) delivery of the Notes, if the Notes are Physical Notes, to the Paying Agent or Tender Agent, as the case may be, at any time after delivery of the Repurchase Notice but on or before the close of business on the Business Day immediately preceding the Fundamental Change Repurchase Notice Date (together with all necessary endorsements for transfer) at the Corporate Trust Office of the Paying Agent or the principal office of the Tender Agent located in the United States of America as notified by the Tender Agent to Holders and the Trustee, as applicableAgent, or book-entry transfer of the Notes, if the Notes are Global Notes, in compliance with the procedures of the Depositary, in each case such delivery being a condition to receipt by the Holder of the Fundamental Change Repurchase Price therefor. The Fundamental Change Repurchase Notice in respect of any Notes to be repurchased shall state:
(i) in the case of Physical Notes, the certificate numbers of the Notes to be delivered for repurchase;
(ii) the portion of the principal amount of Notes to be repurchased, which must be $1,000 or an integral multiple thereof; and
(iii) that the Notes are to be repurchased by the Company pursuant to the applicable provisions of the Notes and this Indenture; provided, however, that if the Notes are Global Notes, the Fundamental Change Repurchase Notice must comply with appropriate Depositary procedures. Notwithstanding anything herein to the contrary, any Holder delivering to the Paying Agent or Tender Agent, as the case may be, the Fundamental Change Repurchase Notice contemplated by this Section 15.02 14.01 shall have the right to withdraw, in whole or in part, such Fundamental Change Repurchase Notice at any time prior to the close of business on the Business Day immediately preceding the Fundamental Change Repurchase Date by delivery of a written notice of withdrawal to the Paying Agent or Tender Agent, as the case may be, in accordance with Section 15.03, or in accordance with the customary procedures of the Depository with respect to Global Notes14.02. The Paying Agent or Tender Agent, as the case may be, shall promptly notify the Company of the receipt by it of any Fundamental Change Repurchase Notice or written notice of withdrawal thereof.
(c) On or before the 20th Business Day calendar day after the occurrence of the effective date of a Fundamental Change, the Company shall provide to all Holders of Notes and the Trustee, the Conversion Agent (in the case of a Conversion Agent other than the Trustee) Trustee and the Paying Agent (in the case of a Paying Agent other than the Trustee) a written notice (the “Fundamental Change Company Notice”) of the occurrence of the effective date of the Fundamental Change and of the repurchase right at the option of the Holders arising as a result thereof. In the case of Physical Notes, such notice shall be by first class mail or, in the case of Global Notes, such notice shall be delivered in accordance with the applicable procedures of the Depositary. Simultaneously with providing such notice, the Company shall publish a notice containing the information set forth in the Fundamental Change Company Notice on the Company’s website or through such other public medium as the Company may use at that time. Each Fundamental Change Company Notice shall specify:
(i) the events causing the Fundamental Change;
(ii) the effective date of the Fundamental Change;
(iii) the last date on which a Holder may exercise the repurchase right pursuant to this Article 15Section 14.01;
(iv) the Fundamental Change Repurchase Price;
(v) the Fundamental Change Repurchase Date;
(vi) the name and address of the Paying Agent or Tender Agent, as the case may be, and the Conversion Agent, if applicable;
(vii) if applicable, the Conversion Rate and any adjustments to the Conversion Rate as a result of the Fundamental ChangeRate;
(viii) if applicable, that the Notes with respect to which a Fundamental Change Repurchase Notice has been delivered by a Holder may be converted only if the Holder validly withdraws the Fundamental Change Repurchase Notice in accordance with the terms of this Indenture; and;
(ix) the procedures that Holders must follow to require the Company to repurchase their Notes. No failure of the Company to give the foregoing notices and no defect therein shall limit the Holders’ repurchase rights or affect the validity of the proceedings for the repurchase of the Notes pursuant to this Section 15.0214.01. At the Company’s request, given at least five written request and upon 15 days prior to the date the Fundamental Change Company Notice is to be sent (or such shorter period as may be agreed to by the Trustee)notice, the Trustee shall give such notice in the Company’s name and at the Company’s expense; provided, however, that, in all cases, the text of such Fundamental Change Company Notice shall be prepared by the Company.
(d) Notwithstanding the foregoing, no Notes may be repurchased by the Company on any date at the option of the Holders upon a Fundamental Change if the principal amount of the Notes has been accelerated, and such acceleration has not been rescinded, on or prior to such date (except in the case of an acceleration resulting from a Default by the Company in the payment of the Fundamental Change Repurchase Price with respect to such Notes). The Paying Agent or Tender Agent, as the case may be, will promptly return to the respective Holders thereof any Physical Notes held by it during the acceleration of the Notes (except in the case of an acceleration resulting from a Default by the Company in the payment of the Fundamental Change Repurchase Price with respect to such Notes), or any instructions for book-entry transfer of the Notes in compliance with the procedures of the Depositary shall be deemed to have been cancelled, and, upon such return or cancellation, as the case may be, the Fundamental Change Repurchase Notice with respect thereto shall be deemed to have been withdrawn.
(e) Notwithstanding the foregoing, the Company will not be required to repurchase any Notes from Holders pursuant to this Section 14.01 if a third party purchases such Notes on the Fundamental Change Repurchase Date in the manner and otherwise in compliance with the requirements set forth in this Section 14.01.
Appears in 1 contract
Samples: Indenture (HCI Group, Inc.)
Repurchase at Option of Holders Upon a Fundamental Change. (a) If Subject to Section 15.02(f), if a Fundamental Change occurs at any time prior to the Maturity Datetime, each Holder shall have the right, at such Holder’s option, to require the Company to repurchase for cash all of such Holder’s Notes, or any portion of the principal amount thereof properly surrendered and not validly withdrawn pursuant to Section 15.03 that is equal to minimum denominations of $1,000 or an integral multiple of $1,000 in excess thereof1,000, on the date (the “Fundamental Change Repurchase Date”) specified by the Company that is not less than 20 calendar days Business Days or more than 35 calendar days Business Days following the date of the Fundamental Change Company Notice at a repurchase price equal to 100% of the principal amount thereof, plus accrued and unpaid interest thereon to, but excluding, the Fundamental Change Repurchase Date (the “Fundamental Change Repurchase Price”), unless the Fundamental Change Repurchase Date falls after a Regular Record Date but on or prior to the Interest Payment Date to which such Regular Record Date relates, in which case the Company shall instead pay the full amount of accrued and unpaid interest (to, but excluding, such Interest Payment Date) to Holders of record as of the close of business on such Regular Record Date on, or at the Company’s election, before such Interest Payment Date, and the Fundamental Change Repurchase Price shall be equal to 100% of the principal amount of Notes to be repurchased pursuant to this Article 15; provided that the Company shall not be required to repurchase, or to make an offer to repurchase, the Notes upon a Fundamental Change if a third party makes such an offer in the same manner, at the same time and otherwise in compliance with the requirements for an offer made by the Company as set forth in this Section 15.02 and such third party purchases all Notes properly surrendered and not validly withdrawn under its offer in the same manner, at the same time and otherwise in compliance with the requirements for an offer made by the Company as set forth in this Section 15.02.
(b) Repurchases of Notes under this Section 15.02 shall be made, at the option of the Holder thereof, upon:
(i) delivery to the Paying Agent or tender agent appointed to facilitate the repurchase (the “Tender Agent”) by a Holder of a duly completed written notice (the “Fundamental Change Repurchase Notice”) in the form set forth in Attachment 2 to the Form of Note attached hereto as Exhibit A, if the Notes are Physical Notes, or in compliance with the Depositary’s applicable procedures for surrendering interests in Global Notes, if the Notes are Global Notes, in each case case, on or before the close of business on the Business Day immediately preceding the Fundamental Change Repurchase Date; and
(ii) delivery of the Notes, if the Notes are Physical Notes, to the Paying Agent or Tender Agent, as the case may be, at any time after delivery of the Fundamental Change Repurchase Notice (together with all necessary endorsements for transfer) at the Corporate Trust Office of the Paying Agent or the principal office of the Tender Agent located in the United States of America as notified by the Tender Agent to Holders and the Trustee, as applicableAgent, or book-entry transfer of the Notes, if the Notes are Global Notes, in compliance with the applicable procedures of the Depositary, in each case case, such delivery or transfer being a condition to receipt by the Holder of the Fundamental Change Repurchase Price therefor. The Fundamental Change Repurchase Notice in respect of any Physical Notes to be repurchased shall state:
(i) in the case of Physical Notes, the certificate numbers of the Notes to be delivered for repurchase;
(ii) the portion of the principal amount of Notes to be repurchased, which must be $1,000 or an integral multiple thereof; and
(iii) that the Notes are to be repurchased by the Company pursuant to the applicable provisions of the Notes and this Indenture; provided, however, that if . If the Notes are Global Notes, to exercise the Fundamental Change Repurchase Notice repurchase right, Holders must comply surrender their Notes in accordance with appropriate applicable Depositary procedures. Notwithstanding anything herein to the contrary, any Holder delivering to the Paying Agent or Tender Agent, as the case may be, the Fundamental Change Repurchase Notice contemplated by this Section 15.02 shall have the right to withdraw, in whole or in part, such Fundamental Change Repurchase Notice at any time prior to the close of business on the Business Day immediately preceding the Fundamental Change Repurchase Date by delivery of a written notice of withdrawal to the Paying Agent or Tender Agent, as the case may be, in accordance with Section 15.03, or in accordance with the customary procedures of the Depository with respect to Global Notes. The Paying Agent or Tender Agent, as the case may be, shall promptly notify the Company of the receipt by it of any Fundamental Change Repurchase Notice or written notice of withdrawal thereof.
(c) On or before the 20th Business Day after the occurrence of the effective date of a Fundamental Change, the Company shall provide to all Holders of Notes and the Trustee, the Conversion Agent (in the case of a Conversion Agent other than the Trustee) Trustee and the Paying Agent (in the case of a Paying Agent other than the Trustee) a written notice (the “Fundamental Change Company Notice”) of the occurrence of the effective date of the Fundamental Change and of the resulting repurchase right at the option of the Holders arising as a result thereof. In the case of Physical Notes, such notice shall be by first class mail or, in the case of Global Notes, such notice shall be delivered in accordance with the applicable procedures of the Depositary. Simultaneously with providing such notice, the Company shall publish a notice containing the such information set forth in the Fundamental Change Company Notice on the Company’s website or through such other public medium as the Company may use at that time. Each Fundamental Change Company Notice shall specify:
(i) the events causing the Fundamental Change;
(ii) the effective date of the Fundamental Change;
(iii) the last date on which a Holder may exercise the repurchase right pursuant to this Article 15;
(iv) the Fundamental Change Repurchase Price;
(v) the Fundamental Change Repurchase Date;
(vi) the name and address of the Paying Agent or Tender Agent, as the case may be, and the Conversion Agent, if applicable;
(vii) if applicable, the Conversion Rate and any adjustments to the Conversion Rate as a result of the Fundamental Change (or related Make-Whole Fundamental Change);
(viii) that the Notes with respect to which a Fundamental Change Repurchase Notice has been delivered by a Holder may be converted only if the Holder validly withdraws the Fundamental Change Repurchase Notice in accordance with the terms of this Indenture; and
(ix) the procedures that Holders must follow to require the Company to repurchase their Notes. No failure of the Company to give the foregoing notices and no defect therein shall limit the Holders’ repurchase rights or affect the validity of the proceedings for the repurchase of the Notes pursuant to this Section 15.02. At the Company’s written request, given at least five days prior to the date the Fundamental Change Company Notice is to be sent (or such shorter period as may be agreed to by the Trustee), the Trustee shall give such notice in the Company’s name and at the Company’s expense; provided, however, that, in all cases, the text of such Fundamental Change Company Notice shall be prepared by the Company.
(d) Notwithstanding anything to the contrary in this Article 15, the Company shall not be required to repurchase, or to make an offer to repurchase, the Notes upon a Fundamental Change if a third party makes such an offer in the same manner, at the same time and otherwise in compliance with the requirements for an offer made by the Company as set forth in this Article 15 and such third party purchases all Notes properly surrendered and not validly withdrawn under its offer in the same manner, at the same time and otherwise in compliance with the requirements for an offer made by the Company as set forth above.
(e) Notwithstanding the foregoing, no Notes may be repurchased by the Company on any date at the option of the Holders upon a Fundamental Change if the principal amount of the Notes has been accelerated, and such acceleration has not been rescinded, on or prior to such date (except in the case of an acceleration resulting from a Default by the Company in the payment of the Fundamental Change Repurchase Price with respect to such Notes). The Paying Agent or Tender Agent, as the case may be, will promptly return to the respective Holders thereof any Physical Notes held by it during the acceleration of the Notes (except in the case of an acceleration resulting from a Default by the Company in the payment of the Fundamental Change Repurchase Price with respect to such Notes), or any instructions for book-entry transfer of the Notes in compliance with the applicable procedures of the Depositary shall be deemed to have been cancelled, and, upon such return or cancellation, as the case may be, the Fundamental Change Repurchase Notice with respect thereto shall be deemed to have been withdrawn.
(f) Notwithstanding anything to the contrary in this Section 15.02, the Company shall not be required to send a Fundamental Change Company Notice, or offer to repurchase or repurchase any Notes, as set forth in this Article 15, in connection with a Fundamental Change occurring pursuant to clause (b)(A) or (B) of the definition thereof, if: (i) such Fundamental Change constitutes a Share Exchange Event whose Reference Property consists entirely of cash in U.S. dollars; (ii) immediately after such Fundamental Change, the Notes become convertible (pursuant to Section 14.07 and, if applicable, Section 14.03) into consideration that consists solely of U.S. dollars in an amount per $1,000 principal amount of Notes that equals or exceeds the Fundamental Change Repurchase Price per $1,000 principal amount of Notes (calculated assuming that the same includes the maximum amount of accrued but unpaid interest payable as part of the Fundamental Change Repurchase Price for such Fundamental Change); and (iii) the Company timely sends the notice relating to such Fundamental Change required pursuant to Section 14.01(b)(iii). Any Fundamental Change with respect to which, in accordance with the provisions described in this Section 15.02(f), the Company does not offer to repurchase any Notes is referred to as herein as an “Exempted Fundamental Change.”
Appears in 1 contract
Samples: Indenture (Array Technologies, Inc.)
Repurchase at Option of Holders Upon a Fundamental Change. (a) If a Fundamental Change occurs at any time prior to the Maturity Date, each Holder shall have the right, at such Holder’s option, to require the Company to repurchase for cash all of such Holder’s Notes, or any portion of the principal amount thereof properly surrendered and not validly withdrawn pursuant to Section 15.03 that is equal to minimum denominations of $1,000 or an integral a multiple of $1,000 in excess thereof1,000, on the date (the “Fundamental Change Repurchase Date”) specified by the Company that is not less than 20 calendar days or more than 35 calendar days following the date of the Fundamental Change Company Notice at a repurchase price equal to 100% of the principal amount thereof, plus accrued and unpaid interest thereon to, but excluding, the Fundamental Change Repurchase Date (the “Fundamental Change Repurchase Price”), unless the Fundamental Change Repurchase Date falls after a Regular Record Date but on or prior to the Interest Payment Date to which such Regular Record Date relates, in which case the Company shall instead pay the full amount of accrued and unpaid interest (to, but excluding, such Interest Payment Date) to Holders the Holder of record as of such Regular Record Date, and the Fundamental Change Repurchase Price shall be equal to 100% of the principal amount of Notes to be repurchased pursuant to this Article Article 15; provided that . Any Notes so repurchased by the Company shall not be required to repurchase, or to make an offer to repurchase, the Notes upon a paid for in cash. The Fundamental Change if a third party makes such an offer Repurchase Date shall be subject to postponement in the same manner, at the same time and otherwise in compliance with the requirements for an offer made by order to allow the Company to comply with applicable law as set forth in a result of any changes to such applicable law occurring after the date of this Section 15.02 and such third party purchases all Notes properly surrendered and not validly withdrawn under its offer in the same manner, at the same time and otherwise in compliance with the requirements for an offer made by the Company as set forth in this Section 15.02Indenture.
(ba) Repurchases of Notes under this Section Section 15.02 shall be made, at the option of the Holder thereof, upon:
(i) delivery to the Paying Agent or tender agent appointed to facilitate the repurchase (the “Tender Agent”) by a Holder of a duly completed written notice (the “Fundamental Change Repurchase Notice”) in the form set forth in Attachment 2 to the Form of Note attached hereto as Exhibit A, if the Notes are Physical Notes, or in compliance with the Depositary’s applicable procedures for surrendering interests in Global Notes, if the Notes are Global Notes, in each case on or before the close of business on the Business Day immediately preceding the Fundamental Change Repurchase Date; and
(ii) delivery of the Notes, if the Notes are Physical Notes, to the Paying Agent or Tender Agent, as the case may be, at any time after delivery of the Fundamental Change Repurchase Notice (together with all necessary endorsements for transfer) at the Corporate Trust Office of the Paying Agent or the principal office of the Tender Agent located in the United States of America as notified by the Tender Agent to Holders and the Trustee, as applicableAgent, or book-entry transfer of the Notes, if the Notes are Global Notes, in compliance with the applicable procedures of the Depositary, in each case such delivery being a condition to receipt by the Holder of the Fundamental Change Repurchase Price therefor. The Fundamental Change Repurchase Xxx Xxxxxxxxxxx Xxxxxx Xxxxxxxxxx Notice in respect of any Notes to be repurchased shall state:
(i) in the case of Physical Notes, the certificate numbers of the Notes to be delivered for repurchase;
(ii) the portion of the principal amount of Notes to be repurchased, which must be $1,000 or an integral a multiple thereof; and
(iii) that the Notes are to be repurchased by the Company pursuant to the applicable provisions of the Notes and this Indenture; provided, however, that if the Notes are Global Notes, the Fundamental Change Repurchase Notice must comply with appropriate Depositary procedures. Notwithstanding anything herein to the contrary, any Holder delivering to the Paying Agent or Tender Agent, as the case may be, the Fundamental Change Repurchase Notice contemplated by this Section Section 15.02 shall have the right to withdraw, in whole or in part, such Fundamental Change Repurchase Notice at any time prior to the close of business on the Business Day immediately preceding the Fundamental Change Repurchase Date by delivery of a written notice of withdrawal to the Paying Agent or Tender Agent, as the case may be, in accordance with Section Section 15.03, or in accordance with the customary procedures of the Depository with respect to Global Notes. The Paying Agent or Tender Agent, as the case may be, shall promptly notify the Company of the receipt by it of any Fundamental Change Repurchase Notice or written notice of withdrawal thereof.
(cb) On or before the 20th Business Day calendar day after the occurrence of the effective date of a Fundamental Change, the Company shall provide to all Holders of Notes and the Trustee, the Conversion Agent (in the case of a Conversion Agent other than the Trustee) Trustee and the Paying Agent (in the case of a Paying Agent other than the Trustee) a notice (the “Fundamental Change Company Notice”) of the occurrence of the effective date of the Fundamental Change and of the resulting repurchase right at the option of the Holders arising as a result thereof. In the case of Physical Notes, such notice shall be by first class mail or, in the case of Global Notes, such notice shall be delivered in accordance with the applicable procedures of the Depositary. Simultaneously with providing such notice, the Company shall publish a notice containing the information set forth in the Fundamental Change Company Notice on the Company’s website or through such other public medium as the Company may use at that time. Each Fundamental Change Company Notice shall specify:
(i) the events causing the Fundamental Change;
(ii) the effective date of the Fundamental Change;
(iii) the last date on which a Holder may exercise the repurchase right pursuant to this Article Article 15;
(iv) the Fundamental Change Repurchase Price;
(v) the Fundamental Change Repurchase Date;
(vi) the name and address of the Paying Agent or Tender Agent, as the case may be, and the Conversion Agent, if applicable;
(vii) if applicable, the Conversion Rate and any adjustments to the Conversion Rate as a result of the resulting from such Fundamental Change (or related Make-Whole Fundamental Change);
(viii) that the Notes with respect to which a Fundamental Change Repurchase Notice has been delivered by a Holder may be converted only if the Holder validly withdraws the Fundamental Change Repurchase Notice in accordance with the terms of this Indenture; and
(ix) the procedures that Holders must follow to require the Company to repurchase their Notes. No failure of the Company to give the foregoing notices and no defect therein shall limit the Holders’ repurchase rights or affect the validity of the proceedings for the repurchase of the Notes pursuant to this Section Section 15.02. At the Company’s request, given at least five days prior to the date the Fundamental Change Company Notice is to be sent (or such shorter period as may be agreed to by the Trustee)sent, the Trustee shall give such notice in the Company’s name and at the Company’s expense; provided, however, that, in all cases, the text of such Fundamental Change Company Notice shall be prepared by the Company.
(dc) Notwithstanding the foregoing, no Notes may be repurchased by the Company on any date at the option of the Holders upon a Fundamental Change if the principal amount of the Notes has been accelerated, and such acceleration has not been rescinded, on or prior to such date (except in the case of an acceleration resulting from a Default by the Company in the payment of the Fundamental Change Repurchase Price with respect to such Notes). The Paying Agent or Tender Agent, as the case may be, will promptly return to the respective Holders thereof any Physical Notes held by it during the acceleration of the Notes (except in the case of an acceleration resulting from a Default by the Company in the payment of the Fundamental Change Repurchase Price with respect to such Notes), or any instructions for book-entry transfer of the Notes in compliance with the applicable procedures of the Depositary shall be deemed to have been cancelled, and, upon such return or cancellation, as the case may be, the Fundamental Change Repurchase Notice with respect thereto shall be deemed to have been withdrawn.
(d) The Company shall not be required to repurchase or make an offer to repurchase Notes upon the occurrence of a Fundamental Change otherwise required under this Section 15.02 if a third party makes such an offer to purchase Notes in the same manner, at the same time and otherwise in compliance with the requirements for an offer made by the Company as set forth in this Indenture and such third party purchases all Notes properly surrendered and not validly withdrawn under such offer to purchase.
Appears in 1 contract
Samples: Indenture (Heska Corp)
Repurchase at Option of Holders Upon a Fundamental Change. (a) If Subject to Section 15.02(f), if a Fundamental Change occurs at any time prior to the Maturity Datetime, each Holder shall have the right, at such Holder’s option, to require the Company to repurchase for cash all of such Holder’s Notes, or any portion of the principal amount thereof properly surrendered and not validly withdrawn pursuant to Section 15.03 that is equal to minimum denominations of $1,000 or an integral multiple of $1,000 in excess thereof1,000, on the date (the “Fundamental Change Repurchase Date”) specified by the Company that is not less than 20 calendar days Business Days or more than 35 calendar days Business Days following the date of the Fundamental Change Company Notice at a repurchase price equal to 100% of the principal amount thereof, plus accrued and unpaid interest thereon to, but excluding, the Fundamental Change Repurchase Date (the “Fundamental Change Repurchase Price”), ) (unless the Fundamental Change Repurchase Date falls after a Regular Record Date but on or prior to the Interest Payment Date to which such Regular Record Date relates, in which case the Company shall instead pay the full amount of accrued and unpaid interest (to, but excluding, such Interest Payment Date) to Holders of record as of the close of business on such Regular Record Date on, or at the Company’s election, before such Interest Payment Date, and the Fundamental Change Repurchase Price shall be equal to 100% of the principal amount of Notes to be repurchased pursuant to this Article 15; provided that the Company shall not be required to repurchase, or to make an offer to repurchase, the Notes upon a Fundamental Change if a third party makes such an offer in the same manner, at the same time and otherwise in compliance with the requirements for an offer made by the Company as set forth in this Section 15.02 and such third party purchases all Notes properly surrendered and not validly withdrawn under its offer in the same manner, at the same time and otherwise in compliance with the requirements for an offer made by the Company as set forth in this Section 15.02).
(b) Repurchases of Notes under this Section 15.02 shall be made, at the option of the Holder thereof, upon:
(i) delivery to the Paying Agent or tender agent appointed to facilitate the repurchase (the “Tender Agent”) by a Holder of a duly completed notice (the “Fundamental Change Repurchase Notice”) in the form set forth in Attachment 2 to the Form of Note attached hereto as Exhibit A, if the Notes are Physical Notes, or in compliance with the Depositary’s applicable procedures for surrendering interests in Global Notes, if the Notes are Global Notes, in each case case, on or before the close of business on the Business Day immediately preceding the Fundamental Change Repurchase Date; and
(ii) delivery of the Notes, if the Notes are Physical Notes, to the Paying Agent or Tender Agent, as the case may be, at any time after delivery of the Fundamental Change Repurchase Notice (together with all necessary endorsements for transfer) at the Corporate Trust Office of the Paying Agent or the principal office of the Tender Agent located in the United States of America as notified by the Tender Agent to Holders and the Trustee, as applicableAgent, or book-entry transfer of the Notes, if the Notes are Global Notes, in compliance with the applicable procedures of the Depositary, in each case case, such delivery or transfer being a condition to receipt by the Holder of the Fundamental Change Repurchase Price therefor. The Fundamental Change Repurchase Notice in respect of any Physical Notes to be repurchased shall state:
(i) in the case of Physical Notes, the certificate numbers of the Notes to be delivered for repurchase;
(ii) the portion of the principal amount of Notes to be repurchased, which must be $1,000 or an integral multiple thereof; and
(iii) that the Notes are to be repurchased by the Company pursuant to the applicable provisions of the Notes and this Indenture; provided, however, that if . If the Notes are Global Notes, to exercise the Fundamental Change Repurchase Notice repurchase right, Holders must comply surrender their Notes in accordance with appropriate applicable Depositary procedures. Notwithstanding anything herein to the contrary, any Holder delivering to the Paying Agent or Tender Agent, as the case may be, the Fundamental Change Repurchase Notice contemplated by this Section 15.02 shall have the right to withdraw, in whole or in part, such Fundamental Change Repurchase Notice at any time prior to the close of business on the Business Day immediately preceding the Fundamental Change Repurchase Date by delivery of a written notice of withdrawal to the Paying Agent or Tender Agent, as the case may be, in accordance with Section 15.03, or in accordance with the customary procedures of the Depository with respect to Global Notes. The Paying Agent or Tender Agent, as the case may be, shall promptly notify the Company of the receipt by it of any Fundamental Change Repurchase Notice or written notice of withdrawal thereof.
(c) On or before the 20th Business Day after the occurrence of the effective date of a Fundamental Change, the Company shall provide to all Holders of Notes and the Trustee, the Conversion Agent (in the case of a Conversion Agent other than the Trustee) Trustee and the Paying Agent (in the case of a Paying Agent other than the Trustee) a notice (the “Fundamental Change Company Notice”) of the occurrence of the effective date of the Fundamental Change and of the resulting repurchase right at the option of the Holders arising as a result thereof. In the case of Physical Notes, such notice shall be by first class mail or, in the case of Global Notes, such notice shall be delivered in accordance with the applicable procedures of the Depositary. Simultaneously with providing such notice, the Company shall publish a notice containing the such information set forth in the Fundamental Change Company Notice on the Company’s website or through such other public medium as the Company may use at that time. Each Fundamental Change Company Notice shall specify:
(i) the events causing the Fundamental Change;
; (ii) the effective date of the Fundamental Change;
(iii) the last date on which a Holder may exercise the repurchase right pursuant to this Article 15;
(iv) the Fundamental Change Repurchase Price;
(v) the Fundamental Change Repurchase Date;
(vi) the name and address of the Paying Agent or Tender Agent, as the case may be, and the Conversion Agent, if applicable;
(vii) if applicable, the Conversion Rate and any adjustments to the Conversion Rate as a result of the Fundamental Change;
(viii) that the Notes with respect to which a Fundamental Change Repurchase Notice has been delivered by a Holder may be converted only if the Holder validly withdraws the Fundamental Change Repurchase Notice in accordance with the terms of this Indenture; and
(ix) the procedures that Holders must follow to require the Company to repurchase their Notes. No failure of the Company to give the foregoing notices and no defect therein shall limit the Holders’ repurchase rights or affect the validity of the proceedings for the repurchase of the Notes pursuant to this Section 15.02. At the Company’s request, given at least five days prior to the date the Fundamental Change Company Notice is to be sent (or such shorter period as may be agreed to by the Trustee), the Trustee shall give such notice in the Company’s name and at the Company’s expense; provided, however, that, in all cases, the text of such Fundamental Change Company Notice shall be prepared by the Company.
(d) Notwithstanding the foregoing, no Notes may be repurchased by the Company on any date at the option of the Holders upon a Fundamental Change if the principal amount of the Notes has been accelerated, and such acceleration has not been rescinded, on or prior to such date (except in the case of an acceleration resulting from a Default by the Company in the payment of the Fundamental Change Repurchase Price with respect to such Notes). The Paying Agent or Tender Agent, as the case may be, will promptly return to the respective Holders thereof any Physical Notes held by it during the acceleration of the Notes (except in the case of an acceleration resulting from a Default by the Company in the payment of the Fundamental Change Repurchase Price with respect to such Notes), or any instructions for book-entry transfer of the Notes in compliance with the procedures of the Depositary shall be deemed to have been cancelled, and, upon such return or cancellation, as the case may be, the Fundamental Change Repurchase Notice with respect thereto shall be deemed to have been withdrawn.
Appears in 1 contract
Samples: Indenture (Xometry, Inc.)
Repurchase at Option of Holders Upon a Fundamental Change. (a) If a Fundamental Change occurs at any time prior to the Maturity Datetime, each Holder shall have the right, at such Holder’s option, to require the Company to repurchase for cash all of such Holder’s Notes, or any portion thereof that is equal to a minimum denominations denomination of $1,000 or an integral a multiple of $1,000 in excess thereof1,000, on the date (the “Fundamental Change Repurchase Date”) specified by the Company that is not less than 20 calendar days or more than 35 calendar days following the date of the Fundamental Change Company Notice at a repurchase price equal to 100% of the principal amount thereofof the Notes to be repurchased, plus accrued and unpaid interest thereon to, but excluding, the Fundamental Change Repurchase Date (the “Fundamental Change Repurchase Price”), unless the Fundamental Change Repurchase Date falls after a Regular Record Date but on or prior to the Interest Payment Date to which such Regular Record Date relates, in which case the Company shall instead pay the full amount of accrued and unpaid interest (to, but excluding, such Interest Payment Date) to Holders the Holder of record as of such Regular Record Date, and the Fundamental Change Repurchase Price shall be equal to 100% of the principal amount of Notes to be repurchased pursuant to this Article 15; provided that . The Fundamental Change Repurchase Date shall be subject to postponement in order to permit the Company shall not be required to repurchase, or comply with applicable law as a result of changes to make an offer to repurchase, such applicable law occurring after the Notes upon a Fundamental Change if a third party makes such an offer in the same manner, at the same time and otherwise in compliance with the requirements for an offer made by the Company as set forth in date of this Section 15.02 and such third party purchases all Notes properly surrendered and not validly withdrawn under its offer in the same manner, at the same time and otherwise in compliance with the requirements for an offer made by the Company as set forth in this Section 15.02Supplemental Indenture.
(b) Repurchases of Notes under this Section 15.02 shall be made, at the option of the Holder thereof, upon:
(i) delivery to the Paying Agent or tender agent appointed to facilitate the repurchase (the “Tender Agent”) by a Holder of a duly completed notice (the “Fundamental Change Repurchase Notice”) in the form set forth in Attachment 2 to the Form of Note attached hereto as Exhibit A, if the Notes are Physical Notes, or in compliance with the Depositary’s procedures for surrendering interests in Global Notes, if the Notes are Global Notes, in each case on or before the close of business on the Business Day immediately preceding the Fundamental Change Repurchase Date; and
(ii) delivery of the Notes, if the Notes are Physical Notes, to the Paying Agent or Tender Agent, as the case may be, at any time after delivery of the Fundamental Change Repurchase Notice (together with all necessary endorsements for transfer) at the Corporate Trust Office office of the Paying Agent or the principal office of the Tender Agent located in the United States of America as notified by the Tender Agent to Holders and the Trustee, as applicableAgent, or book-entry transfer of the Notes, if the Notes are Global Notes, in compliance with the procedures of the Depositary, in each case such delivery being a condition to receipt by the Holder of the Fundamental Change Repurchase Price therefor. The Fundamental Change Repurchase Notice in respect of any Notes to be repurchased shall state:
(i) in the case of Physical Notes, the certificate numbers of the Notes to be delivered for repurchase;
(ii) the portion of the principal amount of Notes to be repurchased, which must be a minimum denomination of $1,000 or an integral a multiple thereof; and
(iii) that the Notes are to be repurchased by the Company pursuant to the applicable provisions of the Notes and this Supplemental Indenture; provided, however, that if the Notes are Global Notes, the Fundamental Change Repurchase Notice must comply with appropriate Depositary procedures. Notwithstanding anything herein to the contrary, any Holder delivering to the Paying Agent or Tender Agent, as the case may be, the Fundamental Change Repurchase Notice contemplated by this Section 15.02 shall have the right to withdraw, in whole or in part, such Fundamental Change Repurchase Notice at any time prior to the close of business on the second Business Day immediately preceding the Fundamental Change Repurchase Date by delivery of a written notice of withdrawal to the Paying Agent or Tender Agent, as the case may be, in accordance with Section 15.03, or in accordance with the customary procedures of the Depository with respect to Global Notes. The Paying Agent or Tender Agent, as the case may be, shall promptly notify the Company of the receipt by it of any Fundamental Change Repurchase Notice or written notice of withdrawal thereof.
(c) On or before the 20th Business Day calendar day after the occurrence of the effective date of a Fundamental Change, the Company shall provide to all Holders of Notes and the Trustee, the Conversion Agent (in the case of a Conversion Agent other than the Trustee) Trustee and the Paying Agent (in the case of a Paying Agent other than the Trustee) a notice (the “Fundamental Change Company Notice”) of the occurrence of the effective date of the Fundamental Change and of the repurchase right at the option of the Holders arising as a result thereof. In the case of Physical Notes, such notice shall be delivered by first class mail or, in the case of Global Notes, such notice shall be delivered in accordance with the applicable procedures of the Depositary. Simultaneously with providing such notice, the Company shall publish a notice containing the information set forth in the Fundamental Change Company Notice on the Company’s website or through such other public medium as the Company may use at that time. Each Fundamental Change Company Notice shall specify:
(i) the events causing the Fundamental Change;
(ii) the effective date of the Fundamental Change;
(iii) the last date on which a Holder may exercise the repurchase right pursuant to this Article 15;
(iv) the Fundamental Change Repurchase Price;
(v) the Fundamental Change Repurchase Date;
(vi) the name and address of the Paying Agent or Tender Agent, as the case may be, and the Conversion Agent, if applicable;
(vii) if applicable, the Conversion Rate and any adjustments to the Conversion Rate as a result of the such Fundamental Change;
(viii) that the Notes with respect to which a Fundamental Change Repurchase Notice has been delivered by a Holder may be converted only if the Holder validly withdraws the Fundamental Change Repurchase Notice in accordance with the terms of this Supplemental Indenture; and
(ix) the procedures that Holders must follow to require the Company to repurchase their Notes. No failure of the Company to give the foregoing notices and no defect therein shall limit the Holders’ repurchase rights or affect the validity of the proceedings for the repurchase of the Notes pursuant to this Section 15.02. At the Company’s request, given at least five days prior request to the date the Fundamental Change Company Notice is to be sent Trustee no less than seven days (or such shorter period as may be agreed to by the Trustee)) before the date on which such notice is to be sent, the Trustee shall give such notice in the Company’s name and at the Company’s expense; provided, however, that, in all cases, the text of such Fundamental Change Company Notice shall be prepared by the Company.
(d) Notwithstanding the foregoing, the Company shall not be required to repurchase, or to make an offer to repurchase, the Notes upon a Fundamental Change if a third party makes such an offer in the same manner, at the same time and otherwise in compliance with the requirements for an offer made by the Company as set forth above, and such third party purchases all Notes properly surrendered and not validly withdrawn under its offer in the same manner, at the same time and otherwise in compliance with the requirements for an offer made by the Company as set forth above.
(e) Notwithstanding the foregoing, the Company shall not be required to give such notice or repurchase the Notes as described above upon a Fundamental Change pursuant to clause (b) of the definition thereof if (1) such Fundamental Change results in the Notes becoming convertible (pursuant to Section 14.07) into an amount of cash per Note greater than the Fundamental Change Repurchase Price (assuming the maximum amount of accrued interest would be payable based on the latest possible Fundamental Change Repurchase Date) and (2) the Company provides timely notice of the Holders’ right to convert their Notes based on such Fundamental Change as described in Section 14.01(b)(iii).
(f) Notwithstanding the foregoing, no Notes may be repurchased by the Company on any date at the option of the Holders upon a Fundamental Change if the principal amount of the Notes has been accelerated, and such acceleration has not been rescinded, on or prior to such date (except in the case of an acceleration resulting from a Default by the Company in the payment of the Fundamental Change Repurchase Price with respect to such Notes). The Paying Agent or Tender Agent, as the case may be, will promptly return to the respective Holders thereof any Physical Notes held by it during the acceleration of the Notes (except in the case of an acceleration resulting from a Default by the Company in the payment of the Fundamental Change Repurchase Price with respect to such Notes), or any instructions for book-entry transfer of the Notes in compliance with the procedures of the Depositary shall be deemed to have been cancelled, and, upon such return or cancellation, as the case may be, the Fundamental Change Repurchase Notice with respect thereto shall be deemed to have been withdrawn.
Appears in 1 contract
Repurchase at Option of Holders Upon a Fundamental Change. (a) If a Fundamental Change occurs at any time prior to the Maturity Date, each Holder shall have the right, at such Holder’s option, to require the Company to repurchase for cash all of such Holder’s Notes, or any portion thereof properly surrendered and not validly withdrawn pursuant to Section 15.03 that is equal to minimum denominations of $1,000 or an integral a multiple of $1,000 in excess thereof1,000, on the date (the “Fundamental Change Repurchase Date”) specified by the Company that is not less than 20 calendar days or more than 35 calendar days following the date of the Fundamental Change Company Notice at a repurchase price equal to 100% of the principal amount thereof, plus any accrued and unpaid interest Special Interest thereon to, but excluding, the Fundamental Change Repurchase Date (the “Fundamental Change Repurchase Price”), unless the Fundamental Change Repurchase Date falls after a Regular Special Interest Record Date but on or prior to the Special Interest Payment Date to which such Regular Special Interest Record Date relates, in which case the Company shall instead pay the full amount of any accrued and unpaid interest (to, but excluding, such Special Interest Payment Date) to Holders of record as of such Regular Special Interest Record Date, and the Fundamental Change Repurchase Price shall be equal to 100% of the principal amount of Notes to be repurchased pursuant to this Article 15; provided that the Company shall not be required to repurchase, or to make an offer to repurchase, the Notes upon a Fundamental Change if a third party makes such an offer in the same manner, at the same time and otherwise in compliance with the requirements for an offer made by the Company as set forth in this Section 15.02 and such third party purchases all Notes properly surrendered and not validly withdrawn under its offer in the same manner, at the same time and otherwise in compliance with the requirements for an offer made by the Company as set forth in this Section 15.02.
(b) Repurchases of Notes under this Section 15.02 shall be made, at the option of the Holder thereof, upon:
(i) delivery to the Paying Agent or tender agent appointed to facilitate the repurchase (the “Tender Agent”) by a Holder of a duly completed notice (the “Fundamental Change Repurchase Notice”) in the form set forth in Attachment 2 to the Form of Note attached hereto as Exhibit A, if the Notes are Physical Notes, or in compliance with the Depositary’s procedures for surrendering interests in Global Notes, if the Notes are Global Notes, in each case on or before the close of business on the Business Day immediately preceding the Fundamental Change Repurchase Date; and
(ii) delivery of the Notes, if the Notes are Physical Notes, to the Paying Agent or Tender Agent, as the case may be, at any time after delivery of the Fundamental Change Repurchase Notice (together with all necessary endorsements for transfer) at the Corporate Trust Office of the Paying Agent or the principal office of the Tender Agent located in the United States of America as notified by the Tender Agent to Holders and the Trustee, as applicableAgent, or book-entry transfer of the Notes, if the Notes are Global Notes, in compliance with the procedures of the Depositary, in each case such delivery being a condition to receipt by the Holder of the Fundamental Change Repurchase Price therefor. The Fundamental Change Repurchase Notice in respect of any Notes to be repurchased shall state:
(i) in the case of Physical Notes, the certificate numbers of the Notes to be delivered for repurchase;
(ii) the portion of the principal amount of Notes to be repurchased, which must be $1,000 or an integral a multiple thereof; and
(iii) that the Notes are to be repurchased by the Company pursuant to the applicable provisions of the Notes and this Indenture; provided, however, that if the Notes are Global Notes, the Fundamental Change Repurchase Notice must comply with appropriate Depositary procedures. Notwithstanding anything herein to the contrary, any Holder delivering to the Paying Agent or Tender Agent, as the case may be, the Fundamental Change Repurchase Notice contemplated by this Section 15.02 shall have the right to withdraw, in whole or in part, such Fundamental Change Repurchase Notice at any time prior to the close of business on the Business Day immediately preceding the Fundamental Change Repurchase Date by delivery of a written notice of withdrawal to the Paying Agent or Tender Agent, as the case may be, in accordance with Section 15.03, or in accordance with the customary procedures of the Depository with respect to Global Notes. The Paying Agent or Tender Agent, as the case may be, shall promptly notify the Company of the receipt by it of any Fundamental Change Repurchase Notice or written notice of withdrawal thereof.
(c) On or before the 20th Business Day after the occurrence of the effective date of a Fundamental Change, the Company shall provide to all Holders of Notes and the Trustee, the Conversion Agent (in the case of a Conversion Agent other than the Trustee) and the Paying Agent (in the case of a Paying Agent other than the Trustee) a notice (the “Fundamental Change Company Notice”) of the occurrence of the effective date of the Fundamental Change and of the repurchase right at the option of the Holders arising as a result thereof. In the case of Physical Notes, such notice shall be by first class mail or, in the case of Global Notes, such notice shall be delivered in accordance with the applicable procedures of the Depositary. Simultaneously with providing such notice, the Company shall publish a notice containing the information set forth in the Fundamental Change Company Notice on the Company’s website or through such other public medium as the Company may use at that time. Each Fundamental Change Company Notice shall specify:
(i) the events causing the Fundamental Change;
(ii) the effective date of the Fundamental Change;
(iii) the last date on which a Holder may exercise the repurchase right pursuant to this Article 15;
(iv) the Fundamental Change Repurchase Price;
(v) the Fundamental Change Repurchase Date;
(vi) the name and address of the Paying Agent or Tender Agent, as the case may be, and the Conversion Agent, if applicable;
(vii) if applicable, the Conversion Rate and any adjustments to the Conversion Rate as a result of the Fundamental Change;
(viii) that the Notes with respect to which a Fundamental Change Repurchase Notice has been delivered by a Holder may be converted only if the Holder validly withdraws the Fundamental Change Repurchase Notice in accordance with the terms of this Indenture; and
(ix) the procedures that Holders must follow to require the Company to repurchase their Notes. No failure of the Company to give the foregoing notices and no defect therein shall limit the Holders’ repurchase rights or affect the validity of the proceedings for the repurchase of the Notes pursuant to this Section 15.02. At the Company’s request, given at least five days prior to the date the Fundamental Change Company Notice is to be sent (or such shorter period as may be agreed to by the Trustee), the Trustee shall give such notice in the Company’s name and at the Company’s expense; provided, however, that, in all cases, the text of such Fundamental Change Company Notice shall be prepared by the Company.
(d) Notwithstanding the foregoing, no Notes may be repurchased by the Company on any date at the option of the Holders upon a Fundamental Change if the principal amount of the Notes has been accelerated, and such acceleration has not been rescinded, on or prior to such date (except in the case of an acceleration resulting from a Default by the Company in the payment of the Fundamental Change Repurchase Price with respect to such Notes). The Paying Agent or Tender Agent, as the case may be, will promptly return to the respective Holders thereof any Physical Notes held by it during the acceleration of the Notes (except in the case of an acceleration resulting from a Default by the Company in the payment of the Fundamental Change Repurchase Price with respect to such Notes), or any instructions for book-entry transfer of the Notes in compliance with the procedures of the Depositary shall be deemed to have been cancelled, and, upon such return or cancellation, as the case may be, the Fundamental Change Repurchase Notice with respect thereto shall be deemed to have been withdrawn.
Appears in 1 contract
Samples: Indenture (RingCentral, Inc.)
Repurchase at Option of Holders Upon a Fundamental Change. (a) If a Fundamental Change occurs at any time prior to the Maturity Datetime, each Holder shall have the right, at such Holder’s option, to require the Company to repurchase for cash all of such Holder’s Notes, or any portion thereof that is equal to minimum denominations of $US$1,000 or an integral multiple of $1,000 in excess thereofUS$1,000, on the date Business Day (the “Fundamental Change Repurchase Date”) specified notified in writing by the Company as set forth in Section 15.02(c) that is not less than 20 calendar days Business Days or more than 35 calendar days Business Days following the date of the Fundamental Change Company Notice at a repurchase price equal to 100% of the principal amount thereof, plus accrued and unpaid interest thereon to, but excluding, the Fundamental Change Repurchase Date (the “Fundamental Change Repurchase Price”), unless the Fundamental Change Repurchase Date falls after a Regular Record Date but on or prior to the Interest Payment Date to which such Regular Record Date relates, in which case the Company shall instead pay the full amount of accrued and unpaid interest (to, but excluding, such Interest Payment Date) to Holders of record as of such Regular Record Date on such Interest Payment Date, and the Fundamental Change Repurchase Price shall be equal to 100% of the principal amount of Notes to be repurchased pursuant to this Article 15; provided that the Company shall not be required to repurchase, or to make an offer to repurchase, the Notes upon a . The Fundamental Change if a third party makes such an offer in the same manner, at the same time and otherwise in compliance Repurchase Date shall be subject to postponement to comply with the requirements for an offer made by the Company as set forth in this Section 15.02 and such third party purchases all Notes properly surrendered and not validly withdrawn under its offer in the same manner, at the same time and otherwise in compliance with the requirements for an offer made by the Company as set forth in this Section 15.02applicable law.
(b) Repurchases of Notes under this Section 15.02 shall be made, at the option of the Holder thereof, upon:
(i) delivery to the Paying Agent or tender agent appointed to facilitate the repurchase (the “Tender Agent”) by a Holder of a duly completed notice (the “Fundamental Change Repurchase Notice”) in the form set forth in Attachment 2 to the Form of Note attached hereto as Exhibit A, if the Notes are Physical Notes, or in compliance with the Depositary’s procedures for surrendering interests in Global Notes, if the Notes are Global Notes, in each case on or before the close of business on the second Business Day immediately preceding the Fundamental Change Repurchase Date; and
(ii) delivery of the Notes, if the Notes are Physical Notes, to the Paying Agent or Tender Agent, as the case may be, at any time after delivery of the Fundamental Change Repurchase Notice (together with all necessary endorsements for transfer) at the Corporate Trust Office of the Paying Agent or the principal office of the Tender Agent located in the United States of America as notified by the Tender Agent to Holders and the Trustee, as applicable, or book-entry transfer of the Notes, if the Notes are Global Notes, in compliance with the procedures of the Depositary, in each case such delivery being a condition to receipt by the Holder of the Fundamental Change Repurchase Price therefor. The Fundamental Change Repurchase Notice in respect of any Notes to be repurchased shall state:
(i) in the case of Physical Notes, the certificate numbers of the Notes to be delivered for repurchase;
(ii) the portion of the principal amount of Notes to be repurchased, which must be $US$1,000 or an integral multiple thereof; and
(iii) that the Notes are to be repurchased by the Company pursuant to the applicable provisions of the Notes and this Indenture; provided, however, that if the Notes are Global Notes, the Fundamental Change Repurchase Notice must comply with appropriate applicable Depositary procedures. Notwithstanding anything herein to the contrary, any Holder delivering to the Paying Agent or Tender Agent, as the case may be, the Fundamental Change Repurchase Notice contemplated by this Section 15.02 shall have the right to withdraw, in whole or in part, such Fundamental Change Repurchase Notice at any time prior to the close of business on the second Business Day immediately preceding the Fundamental Change Repurchase Date by delivery of a written notice of withdrawal to the Paying Agent or Tender Agent, as the case may be, in accordance with Section 15.03, or in accordance with the customary procedures of the Depository with respect to Global Notes. The Paying Agent or Tender Agent, as the case may be, shall promptly notify the Company of the receipt by it of any Fundamental Change Repurchase Notice or written notice of withdrawal thereof.
(c) On or before the 20th Business Day calendar day after the occurrence of the effective date of a Fundamental Change, the Company shall provide to all Holders of Notes and the TrusteeHolders, the Conversion Agent (in the case of a Conversion Agent other than the Trustee) Trustee and the Paying Agent (in the case of a Paying Agent other than the Trustee) a written notice (the “Fundamental Change Company Notice”) of the occurrence of the effective date of the Fundamental Change and of the repurchase right at the option of the Holders arising as a result thereof. In the case of Physical Notes, such notice shall be by first class mail or, in the case of Global Notes, such notice shall be delivered in accordance with the applicable procedures of the Depositary. Simultaneously with providing such notice, the Company shall publish a notice containing the information set forth in the Fundamental Change Company Notice on the Company’s website or through such other public medium as the Company may use at that time. Each Fundamental Change Company Notice shall specify:
(i) the events causing the Fundamental Change;
(ii) the effective date of the Fundamental Change;
(iii) the last date on which a Holder may exercise the repurchase right pursuant to this Article 15;
(iv) the Fundamental Change Repurchase Price;
(v) the Fundamental Change Repurchase Date;
(vi) the name and address of the Paying Agent or Tender Agent, as the case may be, and the Conversion Agent, if applicable;
(vii) if applicable, the Conversion Rate and any adjustments to the Conversion Rate as a result of the Fundamental ChangeRate;
(viii) that the Notes with respect to which a Fundamental Change Repurchase Notice has been delivered by a Holder may be converted only if the Holder validly withdraws the Fundamental Change Repurchase Notice in accordance with the terms of this Indenture; and
(ix) the procedures that Holders must follow to require the Company to repurchase their Notes. No failure of the Company to give the foregoing notices and no defect therein shall limit the Holders’ repurchase rights or affect the validity of the proceedings for the repurchase of the Notes pursuant to this Section 15.02. At the Company’s written request, given at least five days prior to the date the Fundamental Change Company Notice is to be sent (or such shorter period as may be agreed to by the Trustee), the Trustee shall give such notice in the Company’s name and at the Company’s expense; provided, however, that, in all cases, the text of such Fundamental Change Company Notice shall be prepared by the CompanyCompany and delivered to the Trustee no later than 2 Business Days (or such shorter period as is acceptable to the Trustee) prior to the date the Fundamental Change Company Notice is to be sent.
(d) Notwithstanding the foregoing, no Notes may be repurchased by the Company on any date at the option of the Holders upon a Fundamental Change if the principal amount of the Notes has been accelerated, and such acceleration has not been rescinded, on or prior to such date (except in the case of an acceleration resulting from a Default by the Company in the payment of the Fundamental Change Repurchase Price with respect to such Notes). The Paying Agent or Tender Agent, as the case may be, will promptly return to the respective Holders thereof any Physical Notes held by it during the acceleration of the Notes (except in the case of an acceleration resulting from a Default by the Company in the payment of the Fundamental Change Repurchase Price with respect to such Notes), or any instructions for book-entry transfer of the Notes in compliance with the procedures of the Depositary shall be deemed to have been cancelled, and, upon such return or cancellation, as the case may be, the Fundamental Change Repurchase Notice with respect thereto shall be deemed to have been withdrawn.
Appears in 1 contract
Samples: Indenture (Sea LTD)
Repurchase at Option of Holders Upon a Fundamental Change. (a) If there shall occur a Fundamental Change occurs at any time prior to the Maturity Date, then each Holder Noteholder shall have the right, at such Holderholder’s option, to require the Company to repurchase for cash all of such Holderholder’s NotesNotes for cash, or any portion thereof that is equal to minimum denominations of $1,000 or an integral multiple of $1,000 in excess thereofprincipal amount, on the date (the “Fundamental Change Repurchase Date”) specified by the Company that is not less than 20 calendar days or twenty Business Days and not more than 35 calendar days following thirty five Business Days after the date of the Fundamental Change Company Notice (as defined below) at a repurchase price equal to 100% of the principal amount thereof, plus together with accrued and unpaid interest interest, including unpaid Additional Interest, if any, thereon to, but excluding, the Fundamental Change Repurchase Date (the “Fundamental Change Repurchase Price”), unless the . If such Fundamental Change Repurchase Date falls after a Regular Record Date but record date for the payment of interest, and on or prior to the corresponding Interest Payment Date to which such Regular Record Date relatesDate, in which case the Company shall instead pay the principal amount to the Noteholders surrendering the Notes for repurchase pursuant to this Section 16.02, and pay the full amount of accrued and unpaid interest (tointerest, but excludingincluding accrued and unpaid Additional Interest, if any, payable on such Interest Payment Date) Date to Holders the holder of record as on the close of such Regular Record Date, and business on the Fundamental Change Repurchase Price shall be equal to 100% of the principal amount of Notes to be repurchased pursuant to this Article 15; provided that the Company shall not be required to repurchase, or to make an offer to repurchase, the Notes upon a Fundamental Change if a third party makes such an offer in the same manner, at the same time and otherwise in compliance with the requirements for an offer made by the Company as set forth in this Section 15.02 and such third party purchases all Notes properly surrendered and not validly withdrawn under its offer in the same manner, at the same time and otherwise in compliance with the requirements for an offer made by the Company as set forth in this Section 15.02.
(b) corresponding record date. Repurchases of Notes under this Section 15.02 16.02 shall be made, at the option of the Holder holder thereof, upon:
(i) delivery to the Paying Agent or tender agent appointed to facilitate the repurchase (the “Tender Agent”) by a Holder holder of a duly completed notice (the “Fundamental Change Repurchase Notice”) in the form set forth in Attachment 2 to on the Form reverse of the Note attached hereto as Exhibit A, if the Notes are Physical Notes, or in compliance with the Depositary’s procedures for surrendering interests in Global Notes, if the Notes are Global Notes, in each case on or before C thereto prior to the close of business on the Business Day immediately preceding or prior to the Fundamental Change Repurchase Date; and
(ii) delivery or book-entry transfer of the Notes, if the Notes are Physical Notes, to the Paying Agent or Tender Agent, as the case may be, at any time after delivery of the Fundamental Change Repurchase Notice (together with all necessary endorsements for transferendorsements) at the Corporate Trust Office of the Paying Agent or the principal office in The Borough of the Tender Agent located in the United States of America as notified by the Tender Agent to Holders and the TrusteeManhattan, as applicable, or book-entry transfer of the Notes, if the Notes are Global Notes, in compliance with the procedures of the Depositary, in each case such delivery being a condition to receipt by the Holder holder of the Fundamental Change Repurchase Price therefor; provided that such Fundamental Change Repurchase Price shall be so paid pursuant to this Section 16.02 only if the Note so delivered to the Paying Agent shall conform in all respects to the description thereof in the related Fundamental Change Repurchase Notice. The Fundamental Change Repurchase Notice in respect of any Notes to be repurchased shall state:
(iA) in the case of Physical Notesif certificated, the certificate numbers of the Notes to be delivered for repurchase;
(iiB) the portion of the principal amount of Notes to be repurchased, which must be $1,000 or an integral multiple thereof; and
(iiiC) that the Notes are to be repurchased by the Company pursuant to the applicable provisions of the Notes and this the Indenture; provided, however, that if the Notes are Global Notesnot in certificated form, the Fundamental Change Repurchase Notice must comply with appropriate Depositary procedures. Notwithstanding anything herein Any repurchase by the Company contemplated pursuant to the contrary, any Holder delivering to the Paying Agent or Tender Agent, as the case may be, the Fundamental Change Repurchase Notice contemplated by provisions of this Section 15.02 16.02 shall have be consummated by the right delivery of the consideration to withdraw, in whole or in part, such Fundamental Change Repurchase Notice at any time prior to be received by the close holder promptly following the later of business on the Business Day immediately preceding the Fundamental Change Repurchase Date by delivery of a written notice of withdrawal to and the Paying Agent or Tender Agent, as the case may be, in accordance with Section 15.03, or in accordance with the customary procedures time of the Depository with respect to Global Notes. The Paying Agent or Tender Agent, as the case may be, shall promptly notify the Company of the receipt by it of any Fundamental Change Repurchase Notice or written notice of withdrawal thereof.
(c) On or before the 20th Business Day after the occurrence of the effective date of a Fundamental Change, the Company shall provide to all Holders of Notes and the Trustee, the Conversion Agent (in the case of a Conversion Agent other than the Trustee) and the Paying Agent (in the case of a Paying Agent other than the Trustee) a notice (the “Fundamental Change Company Notice”) of the occurrence of the effective date of the Fundamental Change and of the repurchase right at the option of the Holders arising as a result thereof. In the case of Physical Notes, such notice shall be by first class mail or, in the case of Global Notes, such notice shall be delivered in accordance with the applicable procedures of the Depositary. Simultaneously with providing such notice, the Company shall publish a notice containing the information set forth in the Fundamental Change Company Notice on the Company’s website or through such other public medium as the Company may use at that time. Each Fundamental Change Company Notice shall specify:
(i) the events causing the Fundamental Change;
(ii) the effective date of the Fundamental Change;
(iii) the last date on which a Holder may exercise the repurchase right pursuant to this Article 15;
(iv) the Fundamental Change Repurchase Price;
(v) the Fundamental Change Repurchase Date;
(vi) the name and address of the Paying Agent or Tender Agent, as the case may be, and the Conversion Agent, if applicable;
(vii) if applicable, the Conversion Rate and any adjustments to the Conversion Rate as a result of the Fundamental Change;
(viii) that the Notes with respect to which a Fundamental Change Repurchase Notice has been delivered by a Holder may be converted only if the Holder validly withdraws the Fundamental Change Repurchase Notice in accordance with the terms of this Indenture; and
(ix) the procedures that Holders must follow to require the Company to repurchase their Notes. No failure of the Company to give the foregoing notices and no defect therein shall limit the Holders’ repurchase rights or affect the validity of the proceedings for the repurchase of the Notes pursuant to this Section 15.02. At the Company’s request, given at least five days prior to the date the Fundamental Change Company Notice is to be sent (or such shorter period as may be agreed to by the Trustee), the Trustee shall give such notice in the Company’s name and at the Company’s expense; provided, however, that, in all cases, the text of such Fundamental Change Company Notice shall be prepared by the Company.
(d) Notwithstanding the foregoing, no Notes may be repurchased by the Company on any date at the option of the Holders upon a Fundamental Change if the principal amount of the Notes has been accelerated, and such acceleration has not been rescinded, on or prior to such date (except in the case of an acceleration resulting from a Default by the Company in the payment of the Fundamental Change Repurchase Price with respect to such Notes). The Paying Agent or Tender Agent, as the case may be, will promptly return to the respective Holders thereof any Physical Notes held by it during the acceleration of the Notes (except in the case of an acceleration resulting from a Default by the Company in the payment of the Fundamental Change Repurchase Price with respect to such Notes), or any instructions for book-entry transfer or delivery of the Notes Note as described in compliance with the procedures of the Depositary shall be deemed to have been cancelled, and, upon such return or cancellation, as the case may be, the Fundamental Change Repurchase Notice with respect thereto shall be deemed to have been withdrawnSection 16.04(a).
Appears in 1 contract
Samples: Indenture (Charles River Laboratories International Inc)
Repurchase at Option of Holders Upon a Fundamental Change. (a) If Subject to Section 15.02(f), if a Fundamental Change (other than an Exempted Fundamental Change) occurs at any time prior to the Maturity Date, each Holder shall have the right, at such Holder’s option, to require the Company to repurchase for cash all of such Holder’s Notes, or any portion of the principal amount thereof properly surrendered and not validly withdrawn pursuant to Section 15.03 that is equal to minimum denominations of $1,000 or an integral multiple of $1,000 in excess thereof1,000, on the date (the “Fundamental Change Repurchase Date”) specified by the Company that is not less than 20 calendar days Business Days or more than 35 calendar days Business Days following the date of the Fundamental Change Company Notice at a repurchase price equal to 100% of the principal amount thereof, plus accrued and unpaid interest thereon to, but excluding, the Fundamental Change Repurchase Date (the “Fundamental Change Repurchase Price”), unless the Fundamental Change Repurchase Date falls after a Regular Record Date but on or prior to the Interest Payment Date to which such Regular Record Date relates, in which case the Company shall instead pay the full amount of accrued and unpaid interest (to, but excluding, such Interest Payment Date) to Holders of record as of such Regular Record Date on, or at the Company’s election, before, such Interest Payment Date, and the Fundamental Change Repurchase Price shall be equal to 100% of the principal amount of Notes to be repurchased pursuant to this Article 15; provided that the Company shall not be required to repurchase, or to make an offer to repurchase, the Notes upon a Fundamental Change if a third party makes such an offer in the same manner, at the same time and otherwise in compliance with the requirements for an offer made by the Company as set forth in this Section 15.02 and such third party purchases all Notes properly surrendered and not validly withdrawn under its offer in the same manner, at the same time and otherwise in compliance with the requirements for an offer made by the Company as set forth in this Section 15.02.
(b) Repurchases of Notes under this Section 15.02 shall be made, at the option of the Holder thereof, upon:
(i) delivery to the Paying Agent or tender agent appointed to facilitate the repurchase (the “Tender Agent”) by a Holder of a duly completed notice (the “Fundamental Change Repurchase Notice”) in the form set forth in Attachment 2 to the Form of Note attached hereto as Exhibit A, if the Notes are Physical Notes, or in compliance with the Depositary’s applicable procedures for surrendering interests in Global Notes, if the Notes are Global Notes, in each case case, on or before the close of business on the Business Day immediately preceding the Fundamental Change Repurchase Date; and
(ii) delivery of the Notes, if the Notes are Physical Notes, to the Paying Agent or Tender Agent, as the case may be, at any time after delivery of the Fundamental Change Repurchase Notice (together with all necessary endorsements for transfer) at the Corporate Trust Office of the Paying Agent or the principal office of the Tender Agent located in the United States of America as notified by the Tender Agent to Holders and the Trustee, as applicableAgent, or book-entry transfer of the Notes, if the Notes are Global Notes, in compliance with the applicable procedures of the Depositary, in each case case, such delivery or transfer being a condition to receipt by the Holder of the Fundamental Change Repurchase Price therefor. The Fundamental Change Repurchase Notice in respect of any Physical Notes to be repurchased shall state:
(i) in the case of Physical Notes, the certificate numbers of the Notes to be delivered for repurchase;
(ii) the portion of the principal amount of Notes to be repurchased, which must be $1,000 or an integral multiple thereof; and
(iii) that the Notes are to be repurchased by the Company pursuant to the applicable provisions of the Notes and this Indenture; provided, however, that if . If the Notes are Global Notes, to exercise the Fundamental Change Repurchase Notice repurchase right, Holders must comply surrender their Notes in accordance with appropriate applicable Depositary procedures. Notwithstanding anything herein to the contrary, any Holder delivering to the Paying Agent or Tender Agent, as the case may be, the Fundamental Change Repurchase Notice contemplated by this Section 15.02 shall have the right to withdraw, in whole or in part, such Fundamental Change Repurchase Notice at any time prior to the close of business on the Business Day immediately preceding the Fundamental Change Repurchase Date by delivery of a written notice of withdrawal to the Paying Agent or Tender Agent, as the case may be, in accordance with Section 15.03, or in accordance with the customary procedures of the Depository with respect to Global Notes. The Paying Agent or Tender Agent, as the case may be, shall promptly notify the Company of the receipt by it of any Fundamental Change Repurchase Notice or written notice of withdrawal thereof.
(c) On or before the 20th Business Day after the occurrence of the effective date of a Fundamental Change, the Company shall provide to all Holders of Notes and the Trustee, the Conversion Agent (in the case of a Conversion Agent other than the Trustee) Trustee and the Paying Agent (in the case of a Paying Agent other than the Trustee) a written notice (the “Fundamental Change Company Notice”) of the occurrence of the effective date of the Fundamental Change and of the resulting repurchase right at the option of the Holders arising as a result thereof. In the case of Physical Notes, such notice shall be by first class mail or, in the case of Global Notes, such notice shall be delivered in accordance with the applicable procedures of the Depositary. Simultaneously with providing such notice, the Company shall publish a notice containing the information set forth in the Fundamental Change Company Notice on the Company’s website or through such other public medium as the Company may use at that time. Each Fundamental Change Company Notice shall specify:
(i) the events causing the Fundamental Change;
(ii) the effective date of the Fundamental Change;
(iii) the last date on which a Holder may exercise the repurchase right pursuant to this Article 15;
(iv) the Fundamental Change Repurchase Price;
(v) the Fundamental Change Repurchase Date;
(vi) the name and address of the Paying Agent or Tender Agent, as the case may be, and the Conversion Agent, if applicable;
(vii) if applicable, the Conversion Rate and any adjustments to the Conversion Rate as a result of the Fundamental Change (or related Make-Whole Fundamental Change);
(viii) that the Notes with respect to which a Fundamental Change Repurchase Notice has been delivered by a Holder may be converted only if the Holder validly withdraws the Fundamental Change Repurchase Notice in accordance with the terms of this Indenture; and
(ix) the procedures that Holders must follow to require the Company to repurchase their Notes. No failure of the Company to give the foregoing notices and no defect therein shall limit the Holders’ repurchase rights or affect the validity of the proceedings for the repurchase of the Notes pursuant to this Section 15.02. At the Company’s request, given at least five days prior to the date the Fundamental Change Company Notice is to be sent (or such shorter period as may be agreed to by the Trustee), the Trustee shall give such notice in the Company’s name and at the Company’s expense; provided, however, that, in all cases, the text of such Fundamental Change Company Notice shall be prepared by the Company.
(d) Notwithstanding anything to the contrary in this Article 15, the Company shall not be required to repurchase, or to make an offer to repurchase, the Notes upon a Fundamental Change if a third party makes such an offer in the same manner, at the same time and otherwise in compliance with the requirements for an offer made by the Company as set forth in this Article 15 and such third party purchases all Notes properly surrendered and not validly withdrawn under its offer in the same manner, at the same time and otherwise in compliance with the requirements for an offer made by the Company as set forth above.
(e) Notwithstanding the foregoing, no Notes may be repurchased by the Company on any date at the option of the Holders upon a Fundamental Change if the principal amount of the Notes has been accelerated, and such acceleration has not been rescinded, on or prior to such date (except in the case of an acceleration resulting from a Default by the Company in the payment of the Fundamental Change Repurchase Price with respect to such Notes). The Paying Agent or Tender Agent, as the case may be, will promptly return to the respective Holders thereof any Physical Notes held by it during the acceleration of the Notes (except in the case of an acceleration resulting from a Default by the Company in the payment of the Fundamental Change Repurchase Price with respect to such Notes), or any instructions for book-entry transfer of the Notes in compliance with the applicable procedures of the Depositary shall be deemed to have been cancelled, and, upon such return or cancellation, as the case may be, the Fundamental Change Repurchase Notice with respect thereto shall be deemed to have been withdrawn.
(f) Notwithstanding anything to the contrary in this Section 15.02, the Company shall not be required to send a Fundamental Change Company Notice, or offer to repurchase or repurchase any Notes, as set forth in this Article 15, in connection with a Fundamental Change occurring pursuant to clause (b)(A) or (B) (or pursuant to clause (a) that also constitutes a Fundamental Change occurring pursuant to clause (b)(A) or (B)) of the definition thereof, if: (i) such Fundamental Change constitutes a Share Exchange Event whose Reference Property consists entirely of cash in U.S. dollars; (ii) immediately after such Fundamental Change, the Notes become convertible (pursuant to Section 14.07 and, if applicable, Section 14.03) into consideration that consists solely of U.S. dollars in an amount per $1,000 principal amount of Notes that equals or exceeds the Fundamental Change Repurchase Price per $1,000 principal amount of Notes (calculated assuming that the same includes the maximum amount of accrued but unpaid interest payable as part of the Fundamental Change Repurchase Price for such Fundamental Change); and (iii) the Company timely sends the notice relating to such Fundamental Change required pursuant to Section 14.01(b)(iii). Any Fundamental Change with respect to which, in accordance with the provisions described in this Section 15.02(f), the Company is not required to offer to repurchase any Notes is referred to as herein as an “Exempted Fundamental Change.”
Appears in 1 contract
Repurchase at Option of Holders Upon a Fundamental Change. (a) If a Fundamental Change occurs at any time prior to the Maturity Date, each Holder shall have the right, at such Holder’s option, to require the Company to repurchase for cash all of such Holder’s Notes, or any portion of the principal amount thereof properly surrendered and not validly withdrawn pursuant to Section 15.03 that is equal to minimum denominations of $1,000 or an integral a multiple of $1,000 in excess thereof1,000, on the date (the “Fundamental Change Repurchase Date”) specified by the Company that is not less than 20 calendar days or more than 35 calendar days Business Days following the date of the Fundamental Change Company Notice at a repurchase price equal to 100% of the principal amount thereof, plus accrued and unpaid interest thereon to, but excluding, the Fundamental Change Repurchase Date (the “Fundamental Change Repurchase Price”), unless the Fundamental Change Repurchase Date falls after a Regular Record Date but on or prior to the Interest Payment Date to which such Regular Record Date relates, in which case the Company shall instead pay the full amount of accrued and unpaid interest (to, but excluding, such Interest Payment Date) to Holders the Holder of record as of such Regular Record Date, and the Fundamental Change Repurchase Price shall be equal to 100% of the principal amount of Notes to be repurchased pursuant to this Article 15; provided that . Any Notes so repurchased by the Company shall not be required to repurchase, or to make an offer to repurchase, the Notes upon a Fundamental Change if a third party makes such an offer paid for in the same manner, at the same time and otherwise in compliance with the requirements for an offer made by the Company as set forth in this Section 15.02 and such third party purchases all Notes properly surrendered and not validly withdrawn under its offer in the same manner, at the same time and otherwise in compliance with the requirements for an offer made by the Company as set forth in this Section 15.02cash.
(b) Repurchases of Notes under this Section 15.02 shall be made, at the option of the Holder thereof, upon:
(i) delivery to the Paying Agent or tender agent appointed to facilitate the repurchase (the “Tender Agent”) by a Holder of a duly completed written notice (the “Fundamental Change Repurchase Notice”) in the form set forth in Attachment 2 to the Form of Note attached hereto as Exhibit A, if the Notes are Physical Notes, or in compliance with the Depositary’s applicable procedures for surrendering interests in Global Notes, if the Notes are Global Notes, in each case on or before the close of business on the Business Day immediately preceding the Fundamental Change Repurchase Date; and
(ii) delivery of the Notes, if the Notes are Physical Notes, to the Paying Agent or Tender Agent, as the case may be, at any time after delivery of the Fundamental Change Repurchase Notice (together with all necessary endorsements for transfer) at the Corporate Trust Office of the Paying Agent or the principal office of the Tender Agent located in the United States of America as notified by the Tender Agent to Holders and the Trustee, as applicableAgent, or book-entry transfer of the Notes, if the Notes are Global Notes, in compliance with the applicable procedures of the Depositary, in each case such delivery being a condition to receipt by the Holder of the Fundamental Change Repurchase Price therefor. The Fundamental Change Repurchase Notice in respect of any Notes to be repurchased shall state:
(i) in the case of Physical Notes, the certificate numbers of the Notes to be delivered for repurchase;
(ii) the portion of the principal amount of Notes to be repurchased, which must be $1,000 or an integral a multiple thereof; and
(iii) that the Notes are to be repurchased by the Company pursuant to the applicable provisions of the Notes and this Indenture; provided, however, that if the Notes are Global Notes, the Fundamental Change Repurchase Notice must comply with appropriate Depositary procedures. Notwithstanding anything herein to the contrary, any Holder delivering to the Paying Agent or Tender Agent, as the case may be, the Fundamental Change Repurchase Notice contemplated by this Section 15.02 shall have the right to withdraw, in whole or in part, such Fundamental Change Repurchase Notice at any time prior to the close of business on the Business Day immediately preceding the Fundamental Change Repurchase Date by delivery of a written notice of withdrawal to the Paying Agent or Tender Agent, as the case may be, in accordance with Section 15.03, or in accordance with the customary procedures of the Depository with respect to Global Notes. The Paying Agent or Tender Agent, as the case may be, shall promptly notify the Company of the receipt by it of any Fundamental Change Repurchase Notice or written notice of withdrawal thereof.
(c) On or before the 20th Business Day after the occurrence of the effective date of a Fundamental Change, the Company shall provide to all Holders of Notes and the Trustee, the Conversion Agent (in the case of a Conversion Agent other than the Trustee) Trustee and the Paying Agent (in the case of a Paying Agent other than the Trustee) a notice (the “Fundamental Change Company Notice”) of the occurrence of the effective date of the Fundamental Change and of the resulting repurchase right at the option of the Holders arising as a result thereof. In the case of Physical Notes, such notice shall be by first class mail or, in the case of Global Notes, such notice shall be delivered in accordance with the applicable procedures of the Depositary. Simultaneously with providing such notice, the Company shall publish a notice containing the information set forth in the Fundamental Change Company Notice on the Company’s website or through such other public medium as the Company may use at that time. Each Fundamental Change Company Notice shall specify:
(i) the events causing the Fundamental Change;
(ii) the effective date of the Fundamental Change;
(iii) the last date on which a Holder may exercise the repurchase right pursuant to this Article 15;
(iv) the Fundamental Change Repurchase Price;
(v) the Fundamental Change Repurchase Date;
(vi) the name and address of the Paying Agent or Tender Agent, as the case may be, and the Conversion Agent, if applicable;
(vii) if applicable, the Conversion Rate and any adjustments to the Conversion Rate as a result of the such Fundamental Change (or related Make-Whole Fundamental Change);
(viii) that the Notes with respect to which a Fundamental Change Repurchase Notice has been delivered by a Holder may be converted only if the Holder validly withdraws the Fundamental Change Repurchase Notice in accordance with the terms of this Indenture; and
(ix) the procedures that Holders must follow to require the Company to repurchase their Notes. No failure of the Company to give the foregoing notices and no defect therein shall limit the Holders’ repurchase rights or affect the validity of the proceedings for the repurchase of the Notes pursuant to this Section 15.02. At the Company’s request, given at least five days prior to the date the Fundamental Change Company Notice is to be sent (or such shorter period as may be agreed to by the Trustee)sent, the Trustee shall give such notice in the Company’s name and at the Company’s expense; provided, however, that, in all cases, the text of such Fundamental Change Company Notice shall be prepared by the Company.
(d) Notwithstanding the foregoing, no Notes may be repurchased by the Company on any date at the option of the Holders upon a Fundamental Change if the principal amount of the Notes has been accelerated, and such acceleration has not been rescinded, on or prior to such date (except in the case of an acceleration resulting from a Default by the Company in the payment of the Fundamental Change Repurchase Price with respect to such Notes). The Paying Agent or Tender Agent, as the case may be, will promptly return to the respective Holders thereof any Physical Notes held by it during the acceleration of the Notes (except in the case of an acceleration resulting from a Default by the Company in the payment of the Fundamental Change Repurchase Price with respect to such Notes), or any instructions for book-entry transfer of the Notes in compliance with the applicable procedures of the Depositary shall be deemed to have been cancelled, and, upon such return or cancellation, as the case may be, the Fundamental Change Repurchase Notice with respect thereto shall be deemed to have been withdrawn.
(e) The Company shall not be required to repurchase or make an offer to repurchase Notes upon the occurrence of a Fundamental Change otherwise required under this Section 15.02 if a third party makes such an offer to purchase Notes in the same manner, at the same time and otherwise in compliance with the requirements for an offer made by the Company as set forth in this Indenture and such third party purchases all Notes properly surrendered and not validly withdrawn under such offer to purchase.
(f) To the extent that the provisions of any securities laws or regulations adopted subsequent to the date of the Offering Memorandum conflict with the provisions of this Article 15 relating to the Company’s obligations to purchase Notes upon a Fundamental Change, the Company shall comply with such applicable securities laws and regulations in conducting the relevant offer to purchase the Notes and will not be deemed to have breached its obligations under such provisions by virtue of such conflict.
Appears in 1 contract
Samples: Indenture (Pure Storage, Inc.)
Repurchase at Option of Holders Upon a Fundamental Change. (a) If Subject to Section 15.02(f), if a Fundamental Change occurs at any time prior to the Maturity Datetime, each Holder shall have the right, at such Holder’s option, to require the Company to repurchase for cash all of such Holder’s Notes, or any portion of the principal amount thereof properly surrendered and not validly withdrawn pursuant to Section 15.03 that is equal to minimum denominations of $1,000 or an integral multiple of $1,000 in excess thereof1,000, on the date (the “Fundamental Change Repurchase Date”) specified by the Company that is not less than 20 calendar days 10 Business Days or more than 35 calendar days Business Days following the date of the Fundamental Change Company Notice at a repurchase price equal to 100% of the principal amount thereof, plus accrued and unpaid interest thereon to, but excluding, the Fundamental Change Repurchase Date (the “Fundamental Change Repurchase Price”), unless the Fundamental Change Repurchase Date falls after a Regular Record Date but on or prior to the Interest Payment Date to which such Regular Record Date relates, in which case the Company shall instead pay the full amount of accrued and unpaid interest (to, but excluding, such Interest Payment Date) to Holders of record as of the close of business on such Regular Record Date, and the Fundamental Change Repurchase Price shall be equal to 100% of the principal amount of Notes to be repurchased pursuant to this Article Article 15; provided that the Company shall not be required to repurchase, or to make an offer to repurchase, the Notes upon a Fundamental Change if a third party makes such an offer in the same manner, at the same time and otherwise in compliance with the requirements for an offer made by the Company as set forth in this Section 15.02 and such third party purchases all Notes properly surrendered and not validly withdrawn under its offer in the same manner, at the same time and otherwise in compliance with the requirements for an offer made by the Company as set forth in this Section 15.02.
(b) Repurchases of Notes under this Section Section 15.02 shall be made, at the option of the Holder thereof, upon:
(i) delivery to the Paying Agent or tender agent appointed to facilitate the repurchase (the “Tender Agent”) by a Holder of a duly completed notice (the “Fundamental Change Repurchase Notice”) in the form set forth in Attachment 2 to the Form of Note attached hereto as Exhibit A, if the Notes are Physical Notes, or in compliance with the Depositary’s applicable procedures for surrendering interests in Global Notes, if the Notes are Global Notes, in each case case, on or before the close of business on the Business Day immediately preceding the Fundamental Change Repurchase Date; and
(ii) delivery of the Notes, if the Notes are Physical Notes, to the Paying Agent or Tender Agent, as the case may be, at any time after delivery of the Fundamental Change Repurchase Notice (together with all necessary endorsements for transfer) at the Corporate Trust Office of the Paying Agent or the principal office of the Tender Agent located in the United States of America as notified by the Tender Agent to Holders and the Trustee, as applicableAgent, or book-entry transfer of the Notes, if the Notes are Global Notes, in compliance with the applicable procedures of the Depositary, in each case case, such delivery or transfer being a condition to receipt by the Holder of the Fundamental Change Repurchase Price therefor. The Fundamental Change Repurchase Notice in respect of any Physical Notes to be repurchased shall state:
(i) in the case of Physical Notes, the certificate numbers of the Notes to be delivered for repurchase;
(ii) the portion of the principal amount of Notes to be repurchased, which must be $1,000 or an integral multiple thereof; and
(iii) that the Notes are to be repurchased by the Company pursuant to the applicable provisions of the Notes and this Indenture; provided, however, that if . If the Notes are Global Notes, to exercise the Fundamental Change Repurchase Notice repurchase right, Holders must comply surrender their Notes in accordance with appropriate applicable Depositary procedures. Notwithstanding anything herein to the contrary, any Holder delivering to the Paying Agent or Tender Agent, as the case may be, the Fundamental Change Repurchase Notice contemplated by this Section Section 15.02 shall have the right to withdraw, in whole or in part, such Fundamental Change Repurchase Notice at any time prior to the close of business on the Business Day immediately preceding the Fundamental Change Repurchase Date by delivery of a written notice of withdrawal to the Paying Agent or Tender Agent, as the case may be, in accordance with Section Section 15.03, or in accordance with the customary procedures of the Depository with respect to Global Notes. The Paying Agent or Tender Agent, as the case may be, shall promptly notify the Company of the receipt by it of any Fundamental Change Repurchase Notice or written notice of withdrawal thereof.
(c) On or before the 20th Business Day after the occurrence of the effective date of a Fundamental Change, the Company shall provide to all Holders of Notes and the Trustee, the Conversion Agent (in the case of a Conversion Agent other than the Trustee) Trustee and the Paying Agent (in the case of a Paying Agent other than the Trustee) a notice (the “Fundamental Change Company Notice”) of the occurrence of the effective date of the Fundamental Change and of the resulting repurchase right at the option of the Holders arising as a result thereof. In the case of Physical Notes, such notice shall be by first class mail or, in the case of Global Notes, such notice shall be delivered in accordance with the applicable procedures of the Depositary. Simultaneously with providing such notice, the Company shall publish a notice containing the such information set forth in the Fundamental Change Company Notice on the Company’s website or through such other public medium as the Company may use at that time. Each Fundamental Change Company Notice shall specify:
(i) the events causing the Fundamental Change;
(ii) the effective date of the Fundamental Change;
(iii) the last date on which a Holder may exercise the repurchase right pursuant to this Article Article 15;
(iv) the Fundamental Change Repurchase Price;
(v) the Fundamental Change Repurchase Date;
(vi) the name and address of the Paying Agent or Tender Agent, as the case may be, and the Conversion Agent, if applicable;
(vii) if applicable, the Conversion Rate and any adjustments to the Conversion Rate as a result of the Fundamental Change (or related Make-Whole Fundamental Change);
(viii) that the Notes with respect to which a Fundamental Change Repurchase Notice has been delivered by a Holder may be converted only if the Holder validly withdraws the Fundamental Change Repurchase Notice in accordance with the terms of this Indenture; and
(ix) the procedures that Holders must follow to require the Company to repurchase their Notes. No failure of the Company to give the foregoing notices and no defect therein shall limit the Holders’ ' repurchase rights or affect the validity of the proceedings for the repurchase of the Notes pursuant to this Section Section 15.02. At the Company’s written request, given at least five days prior to the date the Fundamental Change Company Notice is to be sent (or such shorter period as may be agreed to by the Trustee), the Trustee shall give such notice in the Company’s name and at the Company’s expense; provided, however, that, in all cases, the text of such Fundamental Change Company Notice shall be prepared by the Company.
(d) Notwithstanding anything to the contrary in this Article 15, the Company shall not be required to repurchase, or to make an offer to repurchase, the Notes upon a Fundamental Change if a third party makes such an offer in the same manner, at the same time and otherwise in compliance with the requirements for an offer made by the Company as set forth in this Article 15 and such third party purchases all Notes properly surrendered and not validly withdrawn under its offer in the same manner, at the same time and otherwise in compliance with the requirements for an offer made by the Company as set forth above.
(e) Notwithstanding the foregoing, no Notes may be repurchased by the Company on any date at the option of the Holders upon a Fundamental Change if the principal amount of the Notes has been accelerated, and such acceleration has not been rescinded, on or prior to such date (except in the case of an acceleration resulting from a Default by the Company in the payment of the Fundamental Change Repurchase Price with respect to such Notes). The Paying Agent or Tender Agent, as the case may be, will promptly return to the respective Holders thereof any Physical Notes held by it during the acceleration of the Notes (except in the case of an acceleration resulting from a Default by the Company in the payment of the Fundamental Change Repurchase Price with respect to such Notes), or any instructions for book-entry transfer of the Notes in compliance with the applicable procedures of the Depositary shall be deemed to have been cancelled, and, upon such return or cancellation, as the case may be, the Fundamental Change Repurchase Notice with respect thereto shall be deemed to have been withdrawn.
(f) Notwithstanding anything to the contrary in this Section 15.02, the Company shall not be required to send a Fundamental Change Company Notice, or offer to repurchase or repurchase any Notes, as set forth in this Article 15, in connection with a Fundamental Change occurring pursuant to clause (b)(A) or (B) of the definition thereof, if: (i) such Fundamental Change constitutes a Share Exchange Event whose Reference Property consists entirely of cash in U.S. dollars; (ii) immediately after such Fundamental Change, the Notes become convertible (pursuant to Section 14.07 and, if applicable, Section 14.03) into consideration that consists solely of U.S. dollars in an amount per $1,000 principal amount of Notes that equals or exceeds the Fundamental Change Repurchase Price per $1,000 principal amount of Notes (calculated assuming that the same includes the maximum amount of accrued but unpaid interest payable as part of the Fundamental Change Repurchase Price for such Fundamental Change); and (iii) the Company timely sends the notice relating to such Fundamental Change required pursuant to Section 14.01(b)(iii). Any Fundamental Change with respect to which, in accordance with the provisions described in this Section 15.02(f), the Company does not offer to repurchase any Notes is referred to as herein as an “Exempted Fundamental Change.”
Appears in 1 contract
Samples: Indenture (Novavax Inc)
Repurchase at Option of Holders Upon a Fundamental Change. (a) If a Fundamental Change occurs at any time prior to the Maturity Datetime, each Holder shall have the right, at such Holder’s option, to require the Company to repurchase for cash all of such Holder’s Notes, or any portion thereof that is equal to minimum denominations of $US$1,000 or an integral multiple of $1,000 in excess thereofUS$1,000, on the date Business Day (the “Fundamental Change Repurchase Date”) specified notified in writing by the Company as set forth in Section 15.02(c) that is not less than 20 calendar days Business Days or more than 35 calendar days Business Days following the date of the Fundamental Change Company Notice at a repurchase price equal to 100% of the principal amount thereof, plus accrued and unpaid interest thereon to, but excluding, the Fundamental Change Repurchase Date (the “Fundamental Change Repurchase Price”), unless the Fundamental Change Repurchase Date falls after a Regular Record Date but on or prior to the Interest Payment Date to which such Regular Record Date relates, in which case the Company shall instead pay the full amount of accrued and unpaid interest (to, but excluding, such Interest Payment Date) to Holders of record as of such Regular Record Date on such Interest Payment Date, and the Fundamental Change Repurchase Price shall be equal to 100% of the principal amount of Notes to be repurchased pursuant to this Article 15; provided that the Company shall not be required to repurchase, or to make an offer to repurchase, the Notes upon a . The Fundamental Change if a third party makes such an offer in the same manner, at the same time and otherwise in compliance Repurchase Date shall be subject to postponement to comply with the requirements for an offer made by the Company as set forth in this Section 15.02 and such third party purchases all Notes properly surrendered and not validly withdrawn under its offer in the same manner, at the same time and otherwise in compliance with the requirements for an offer made by the Company as set forth in this Section 15.02applicable law.
(b) Repurchases of Notes under this Section 15.02 shall be made, at the option of the Holder thereof, upon:
(i) delivery to the Paying Agent or tender agent appointed to facilitate the repurchase (the “Tender Agent”) by a Holder of a duly completed notice (the “Fundamental Change Repurchase Notice”) in the form set forth in Attachment 2 to the Form of Note attached hereto as Exhibit A, if the Notes are Physical Notes, or in compliance with the Depositary’s procedures for surrendering interests in Global Notes, if the Notes are Global Notes, in each case on or before the close of business on the second Business Day immediately preceding the Fundamental Change Repurchase Date; and
(ii) delivery of the Notes, if the Notes are Physical Notes, to the Paying Agent or Tender Agent, as the case may be, at any time after delivery of the Fundamental Change Repurchase Notice (together with all necessary endorsements for transfer) at the Corporate Trust Office of the Paying Agent or the principal office of the Tender Agent located in the United States of America as notified by the Tender Agent to Holders and the Trustee, as applicable, or book-entry transfer of the Notes, if the Notes are Global Notes, in compliance with the procedures of the Depositary, in each case such delivery being a condition to receipt by the Holder of the Fundamental Change Repurchase Price therefor. The Fundamental Change Repurchase Notice in respect of any Notes to be repurchased shall state:
(i) in the case of Physical Notes, the certificate numbers of the Notes to be delivered for repurchase;
(ii) the portion of the principal amount of Notes to be repurchased, which must be $US$1,000 or an integral multiple thereof; and
(iii) that the Notes are to be repurchased by the Company pursuant to the applicable provisions of the Notes and this the Indenture; provided, however, that if the Notes are Global Notes, the Fundamental Change Repurchase Notice must comply with appropriate applicable Depositary procedures. Notwithstanding anything herein to the contrary, any Holder delivering to the Paying Agent or Tender Agent, as the case may be, the Fundamental Change Repurchase Notice contemplated by this Section 15.02 shall have the right to withdraw, in whole or in part, such Fundamental Change Repurchase Notice at any time prior to the close of business on the second Business Day immediately preceding the Fundamental Change Repurchase Date by delivery of a written notice of withdrawal to the Paying Agent or Tender Agent, as the case may be, in accordance with Section 15.03, or in accordance with the customary procedures of the Depository with respect to Global Notes. The Paying Agent or Tender Agent, as the case may be, shall promptly notify the Company of the receipt by it of any Fundamental Change Repurchase Notice or written notice of withdrawal thereof.
(c) On or before the 20th Business Day calendar day after the occurrence of the effective date of a Fundamental Change, the Company shall provide to all Holders of Notes and the TrusteeHolders, the Conversion Agent (in the case of a Conversion Agent other than the Trustee) Trustee and the Paying Agent (in the case of a Paying Agent other than the Trustee) a written notice (the “Fundamental Change Company Notice”) of the occurrence of the effective date of the Fundamental Change and of the repurchase right at the option of the Holders arising as a result thereof. In the case of Physical Notes, such notice shall be by first class mail or, in the case of Global Notes, such notice shall be delivered in accordance with the applicable procedures of the Depositary. Simultaneously with providing such notice, the Company shall publish a notice containing the information set forth in the Fundamental Change Company Notice on the Company’s website or through such other public medium as the Company may use at that time. Each Fundamental Change Company Notice shall specify:
(i) the events causing the Fundamental Change;
(ii) the effective date of the Fundamental Change;
(iii) the last date on which a Holder may exercise the repurchase right pursuant to this Article 15;
(iv) the Fundamental Change Repurchase Price;
(v) the Fundamental Change Repurchase Date;
(vi) the name and address of the Paying Agent or Tender Agent, as the case may be, and the Conversion Agent, if applicable;
(vii) if applicable, the Conversion Rate and any adjustments to the Conversion Rate as a result of the Fundamental ChangeRate;
(viii) that the Notes with respect to which a Fundamental Change Repurchase Notice has been delivered by a Holder may be converted only if the Holder validly withdraws the Fundamental Change Repurchase Notice in accordance with the terms of this the Indenture; and
(ix) the procedures that Holders must follow to require the Company to repurchase their Notes. No failure of the Company to give the foregoing notices and no defect therein shall limit the Holders’ repurchase rights or affect the validity of the proceedings for the repurchase of the Notes pursuant to this Section 15.02. At the Company’s written request, given at least five days prior to the date the Fundamental Change Company Notice is to be sent (or such shorter period as may be agreed to by the Trustee), the Trustee shall give such notice in the Company’s name and at the Company’s expense; provided, however, that, in all cases, the text of such Fundamental Change Company Notice shall be prepared by the CompanyCompany and delivered to the Trustee no later than 2 Business Days (or such shorter period as is acceptable to the Trustee) prior to the date the Fundamental Change Company Notice is to be sent.
(d) Notwithstanding the foregoing, no Notes may be repurchased by the Company on any date at the option of the Holders upon a Fundamental Change if the principal amount of the Notes has been accelerated, and such acceleration has not been rescinded, on or prior to such date (except in the case of an acceleration resulting from a Default by the Company in the payment of the Fundamental Change Repurchase Price with respect to such Notes). The Paying Agent or Tender Agent, as the case may be, will promptly return to the respective Holders thereof any Physical Notes held by it during the acceleration of the Notes (except in the case of an acceleration resulting from a Default by the Company in the payment of the Fundamental Change Repurchase Price with respect to such Notes), or any instructions for book-entry transfer of the Notes in compliance with the procedures of the Depositary shall be deemed to have been cancelled, and, upon such return or cancellation, as the case may be, the Fundamental Change Repurchase Notice with respect thereto shall be deemed to have been withdrawn.
Appears in 1 contract
Repurchase at Option of Holders Upon a Fundamental Change. (a) If there shall occur a Fundamental Change occurs at any time prior to the Maturity Date, then each Holder holder of Debentures shall have the right, at such Holderholder’s option, to require the Company to repurchase for cash all of such Holderholder’s NotesDebentures, or any portion thereof that is equal to minimum denominations of $1,000 or an integral a multiple of $1,000 in excess thereofprincipal amount, for which such holder has properly delivered and not withdrawn a Repurchase Notice on the a date (the “Fundamental Change Repurchase Date”) specified by the Company that is not less than 20 calendar days or nor more than 35 calendar days following after the date of the Company Repurchase Notice related to such Fundamental Change Company Notice at a cash repurchase price (the “Fundamental Change Repurchase Price”) equal to 100% of the principal amount thereofof the Debentures being repurchased, plus accrued and unpaid interest thereon to, but excluding, the Fundamental Change Repurchase Date (Date, subject to the “Fundamental Change Repurchase Price”satisfaction by the holder of the requirements set forth in Section 4.01(c), unless the ; provided that if such Fundamental Change Repurchase Date falls after a Regular Record Date but and on or prior to the corresponding Interest Payment Date, then the interest payable on such Interest Payment Date shall be paid on such Fundamental Change Repurchase Date to which such the holders of record of the Debentures on the applicable Regular Record Date relates, in which case the Company shall instead pay the full amount of accrued and unpaid interest (to, but excluding, such Interest Payment Date) to Holders of record as of such Regular Record Date, and the Fundamental Change Repurchase Price shall be equal to 100% of the principal amount of Notes to be repurchased pursuant to this Article 15; provided that holders surrendering the Company shall not be required to repurchase, or to make an offer to repurchase, the Notes upon a Fundamental Change if a third party makes Debentures for repurchase on such an offer in the same manner, at the same time and otherwise in compliance with the requirements for an offer made by the Company as set forth in this Section 15.02 and such third party purchases all Notes properly surrendered and not validly withdrawn under its offer in the same manner, at the same time and otherwise in compliance with the requirements for an offer made by the Company as set forth in this Section 15.02date.
(b) Repurchases On or before the fifth calendar day after the occurrence of Notes under a Fundamental Change, the Company shall mail or cause to be mailed to all holders of record of the Debentures on the date of the Fundamental Change at their addresses shown in the Register (and to beneficial owners of the Debentures to the extent required by applicable law) a Company Repurchase Notice as set forth in Section 4.03 with respect to such Fundamental Change. The Company shall also deliver a copy of the Company Repurchase Notice to the Trustee and the Paying Agent at such time as it is mailed to holders of Debentures. Simultaneously with the mailing of such Company Repurchase Notice, the Company shall disseminate a press release containing the relevant information and make such information available on the Company’s website or through another public medium as the Company may use at such time. No failure of the Company to give the foregoing notices and press release and no defect therein shall limit the repurchase rights of holders of Debentures or affect the validity of the proceedings for the repurchase of the Debentures pursuant to this Section 15.02 shall 4.01.
(c) For Debentures to be made, repurchased at the option of the Holder thereofholder, upon:
(i) delivery the holder must deliver to the Paying Agent or tender agent appointed Agent, at any time prior to facilitate the repurchase (the “Tender Agent”) by a Holder of a duly completed notice (the “Fundamental Change Repurchase Notice”) in the form set forth in Attachment 2 to the Form of Note attached hereto as Exhibit A5:00 p.m., if the Notes are Physical NotesNew York City time, or in compliance with the Depositary’s procedures for surrendering interests in Global Notes, if the Notes are Global Notes, in each case on or before the close of business on the Business Day immediately preceding the Fundamental Change Repurchase Date; and, a written notice of the holder’s exercise of its repurchase right (the “Repurchase Notice”). The Repurchase Notice must state the following:
(iiA) delivery the certificate number of the Notes, if Debentures which the Notes are Physical Notes, to the Paying Agent or Tender Agent, as the case may be, at any time after delivery of the Fundamental Change Repurchase Notice (together with all necessary endorsements for transfer) at the Corporate Trust Office of the Paying Agent or the principal office of the Tender Agent located in the United States of America as notified by the Tender Agent to Holders and the Trustee, as applicable, or book-entry transfer of the Notes, if the Notes are Global Notes, in compliance with the procedures of the Depositary, in each case such delivery being a condition to receipt by the Holder of the Fundamental Change Repurchase Price therefor. The Fundamental Change Repurchase Notice in respect of any Notes holder will deliver to be repurchased shall state:
(iif the Debentures are certificated) or appropriate Depositary information in accordance with appropriate Depositary procedures (if the case of Physical Notes, the certificate numbers of the Notes to be delivered for repurchaseDebentures are represented by a Global Debenture);
(iiB) the portion of the principal amount of Notes the Debentures which the holder will deliver to be repurchased, which portion must be in principal amounts of $1,000 or an integral multiple thereofof $1,000; and
(iiiC) that the Notes are to such Debentures shall be repurchased by the Company pursuant to the applicable provisions terms and conditions specified in the Debentures and in this Indenture. The Repurchase Notice must be accompanied by such Debentures duly endorsed for transfer (if the Debentures are certificated) or book-entry transfer of such Debentures (if such Debentures are represented by a Global Debenture). The delivery of such Debentures to the Paying Agent with, or at any time after delivery of, the Repurchase Notice (together with all necessary endorsements) at the office of the Notes and this IndenturePaying Agent shall be a condition to the receipt by the holder of the Fundamental Change Repurchase Price therefor; provided, however, that if the Notes are Global Notes, the such Fundamental Change Repurchase Notice must comply with appropriate Depositary procedures. Notwithstanding anything herein Price shall be so paid pursuant to this Section 4.01 only if the contrary, any Holder delivering Debentures so delivered to the Paying Agent or Tender Agentshall conform in all respects to the description thereof in the Repurchase Notice. All questions as to the validity, as eligibility (including time of receipt) and acceptance of any Debentures for repurchase shall be determined by the case may beCompany, whose determination shall be final and binding absent manifest error.
(d) The Company shall repurchase from the Fundamental Change Repurchase Notice contemplated by holder thereof, pursuant to this Section 15.02 shall have 4.01, a portion of a Debenture, if the right to withdraw, in principal amount of such portion is $1,000 or a whole or in part, such Fundamental Change Repurchase Notice at any time prior multiple of $1,000. Provisions of this First Supplemental Indenture that apply to the close repurchase of business on the Business Day immediately preceding the Fundamental Change Repurchase Date by delivery all of a written notice of withdrawal Debenture also apply to the Paying Agent or Tender Agent, as the case may be, in accordance with Section 15.03, or in accordance with the customary procedures repurchase of the Depository with respect to Global Notes. such portion of such Debenture.
(e) The Paying Agent or Tender Agent, as the case may be, shall promptly notify the Company of the receipt by it of any Fundamental Change Repurchase Notice or written notice of withdrawal thereof.
(c) On or before the 20th Business Day after the occurrence of the effective date of a Fundamental Change, the Company shall provide to all Holders of Notes and the Trustee, the Conversion Agent (in the case of a Conversion Agent other than the Trustee) and the Paying Agent (in the case of a Paying Agent other than the Trustee) a notice (the “Fundamental Change Company Notice”) of the occurrence of the effective date of the Fundamental Change and of the . Any repurchase right at the option of the Holders arising as a result thereof. In the case of Physical Notes, such notice shall be by first class mail or, in the case of Global Notes, such notice shall be delivered in accordance with the applicable procedures of the Depositary. Simultaneously with providing such notice, the Company shall publish a notice containing the information set forth in the Fundamental Change Company Notice on the Company’s website or through such other public medium as the Company may use at that time. Each Fundamental Change Company Notice shall specify:
(i) the events causing the Fundamental Change;
(ii) the effective date of the Fundamental Change;
(iii) the last date on which a Holder may exercise the repurchase right pursuant to this Article 15;
(iv) the Fundamental Change Repurchase Price;
(v) the Fundamental Change Repurchase Date;
(vi) the name and address of the Paying Agent or Tender Agent, as the case may be, and the Conversion Agent, if applicable;
(vii) if applicable, the Conversion Rate and any adjustments to the Conversion Rate as a result of the Fundamental Change;
(viii) that the Notes with respect to which a Fundamental Change Repurchase Notice has been delivered by a Holder may be converted only if the Holder validly withdraws the Fundamental Change Repurchase Notice in accordance with the terms of this Indenture; and
(ix) the procedures that Holders must follow to require the Company to repurchase their Notes. No failure of the Company to give the foregoing notices and no defect therein shall limit the Holders’ repurchase rights or affect the validity of the proceedings for the repurchase of the Notes pursuant to this Section 15.02. At the Company’s request, given at least five days prior to the date the Fundamental Change Company Notice is to be sent (or such shorter period as may be agreed to by the Trustee), the Trustee shall give such notice in the Company’s name and at the Company’s expense; provided, however, that, in all cases, the text of such Fundamental Change Company Notice shall be prepared by the Company.
(d) Notwithstanding the foregoing, no Notes may be repurchased by the Company on any date at contemplated pursuant to the option provisions of this Section 4.01 shall be consummated by the delivery of the Holders upon a Fundamental Change if the principal amount of the Notes has been accelerated, and such acceleration has not been rescinded, on or prior consideration to such date (except in the case of an acceleration resulting from a Default be received by the Company in holder promptly following the payment later of the Fundamental Change Repurchase Price with respect to such Notes). The Paying Agent or Tender Agent, as Date and the case may be, will promptly return to the respective Holders thereof any Physical Notes held by it during the acceleration time of the Notes (except in the case of an acceleration resulting from a Default by the Company in the payment of the Fundamental Change Repurchase Price with respect to such Notes), or any instructions for book-entry transfer or delivery of the Notes in compliance with the procedures of the Depositary shall be deemed to have been cancelled, and, upon such return or cancellation, as the case may be, the Fundamental Change Repurchase Notice with respect thereto shall be deemed to have been withdrawnDebentures.
Appears in 1 contract
Samples: First Supplemental Indenture (Covanta Holding Corp)
Repurchase at Option of Holders Upon a Fundamental Change. (a) If a Fundamental Change occurs at any time prior to the Maturity Datetime, each Holder shall have the right, at such Holder’s option, to require the Company to repurchase for cash all of such Holder’s Notes, or any portion thereof properly surrendered and not validly withdrawn pursuant to Section 15.03 that is equal to minimum denominations of $1,000 or an integral multiple of $1,000 in excess thereof1,000, on the date (the “Fundamental Change Repurchase Date”) specified by the Company that is not less than 20 calendar days Business Days or more than 35 calendar days Business Days following the date of the Fundamental Change Company Notice at a repurchase price equal to 100% of the principal amount thereof, plus accrued and unpaid interest thereon to, but excluding, the Fundamental Change Repurchase Date (the “Fundamental Change Repurchase Price”), unless the Fundamental Change Repurchase Date falls after a Regular Record Date but on or prior to the Interest Payment Date to which such Regular Record Date relates, in which case the Company shall instead pay the full amount of accrued and unpaid interest (to, but excluding, such Interest Payment Date) to Holders of record as of such Regular Record Date, and the Fundamental Change Repurchase Price shall be equal to 100% of the principal amount of Notes to be repurchased pursuant to this Article 15; provided that the Company shall not be required to repurchase, or to make an offer to repurchase, the Notes upon a . The Fundamental Change if a third party makes such an offer in the same manner, at the same time and otherwise in compliance Repurchase Date shall be subject to postponement to comply with the requirements for an offer made by the Company as set forth in this Section 15.02 and such third party purchases all Notes properly surrendered and not validly withdrawn under its offer in the same manner, at the same time and otherwise in compliance with the requirements for an offer made by the Company as set forth in this Section 15.02applicable law.
(b) Repurchases of Notes under this Section 15.02 shall be made, at the option of the Holder thereof, upon:
(i) delivery to the Paying Agent or tender agent appointed by the Company to facilitate the repurchase (the “Tender Agent”) by a Holder of a duly completed notice (the “Fundamental Change Repurchase Notice”) in the form set forth in Attachment 2 to the Form of Note attached hereto as Exhibit A, if the Notes are Physical Notes, or in compliance with the Depositary’s procedures for surrendering interests in Global Notes, if the Notes are Global Notes, in each case on or before the close of business on the Business Day immediately preceding the Fundamental Change Repurchase Date; and
(ii) delivery of the Notes, if the Notes are Physical Notes, to the Paying Agent or Tender Agent, as the case may be, Agent at any time after delivery of the Fundamental Change Repurchase Notice (together with all necessary endorsements for transfer) at the Corporate Trust Office of the Paying Agent or the principal office of the Tender Agent located in the contiguous United States of America as notified by the Tender Agent to Holders and the Trustee, as applicablethe case may be, or book-entry transfer of the Notes, if the Notes are Global Notes, in compliance with the procedures of the Depositary, in each case such delivery being a condition to receipt by the Holder of the Fundamental Change Repurchase Price therefor. The Fundamental Change Repurchase Notice in respect of any Notes to be repurchased shall state:
(i) in the case of Physical Notes, the certificate numbers of the Notes to be delivered for repurchase;
(ii) the portion of the principal amount of Notes to be repurchased, which must be $1,000 or an integral multiple thereof; and
(iii) that the Notes are to be repurchased by the Company pursuant to the applicable provisions of the Notes and this Indenture; provided, however, that if the Notes are Global Notes, the Fundamental Change Repurchase Notice must comply with appropriate Depositary procedures. Notwithstanding anything herein to the contrary, any Holder delivering to the Paying Agent or Tender Agent, as the case may be, the Fundamental Change Repurchase Notice contemplated by this Section 15.02 shall have the right to withdraw, in whole or in part, such Fundamental Change Repurchase Notice at any time prior to the close of business on the Business Day immediately preceding the Fundamental Change Repurchase Date by delivery of a written notice of withdrawal to the Paying Agent or Tender Agent, as the case may be, in accordance with Section 15.03, or in accordance with the customary procedures of the Depository with respect to Global Notes. The Paying Agent or Tender Agent, as the case may be, shall promptly notify the Company of the receipt by it of any Fundamental Change Repurchase Notice or written notice of withdrawal thereof.
(c) On or before the 20th Business Day calendar day after the occurrence of the effective date of a Fundamental Change, the Company shall provide to all Holders of Notes and the TrusteeNotes, the Conversion Agent (in the case of a Conversion Agent other than the Trustee) Trustee and the Paying Agent (in the case of a Paying Agent other than the Trustee) or Tender Agent a notice (the “Fundamental Change Company Notice”) of the occurrence of the effective date of the Fundamental Change and of the repurchase right at the option of the Holders arising as a result thereof. In the case of Physical Notes, such notice shall be by first class mail or, in the case of Global Notes, such notice shall be delivered in accordance with the applicable procedures of the Depositary. Simultaneously with providing such notice, the Company shall publish a notice containing the information set forth in the Fundamental Change Company Notice on the Company’s website or through such other public medium as the Company may use at that time. Each Fundamental Change Company Notice shall specify:
(i) the events causing the Fundamental Change;
(ii) the effective date of the Fundamental Change;
(iii) the last date on which a Holder may exercise the repurchase right pursuant to this Article 15;
(iv) the Fundamental Change Repurchase Price;
(v) the Fundamental Change Repurchase Date;
(vi) the name and address of the Paying Agent or Tender Agent, as the case may be, Tender Agent and the Conversion Agent, in each case, if applicable;
(vii) if applicable, the Conversion Rate and any adjustments to the Conversion Rate as a result of the Fundamental ChangeRate;
(viii) that the Notes with respect to which a Fundamental Change Repurchase Notice has been delivered by a Holder may be converted only if the Holder validly withdraws the Fundamental Change Repurchase Notice in accordance with the terms of this Indenture; and
(ix) the procedures that Holders must follow to require the Company to repurchase their Notes. No failure of the Company to give the foregoing notices and no defect therein shall limit the Holders’ repurchase rights or affect the validity of the proceedings for the repurchase of the Notes pursuant to this Section 15.02. At the Company’s request, given at least five days prior to the date the Fundamental Change Company Notice is to be sent (or such shorter period as may be agreed to by the Trustee), the Trustee shall give such notice in the Company’s name and at the Company’s expense; provided, however, that, in all cases, the text of such Fundamental Change Company Notice shall be prepared by the Company.
(d) Notwithstanding anything to the contrary in this Article 15, the Company shall not be required to repurchase, or to make an offer to repurchase, the Notes upon a Fundamental Change if a third party makes such an offer in the same manner, at the same time and otherwise in compliance with the requirements for an offer made by the Company as set forth in this Article 15, and such third party purchases all Notes properly surrendered and not validly withdrawn under its offer in the same manner, at the same time and otherwise in compliance with the requirements for an offer made by the Company as set forth in this Article 15.
(e) Notwithstanding the foregoing, no Notes may be repurchased by the Company on any date at the option of the Holders upon a Fundamental Change if the principal amount of the Notes has been accelerated, and such acceleration has not been rescinded, on or prior to such date (except in the case of an acceleration resulting from a Default by the Company in the payment of the Fundamental Change Repurchase Price with respect to such Notes). The Paying Agent or the Tender Agent, as the case may be, will promptly return to the respective Holders thereof any Physical Notes held by it during the acceleration of the Notes (except in the case of an acceleration resulting from a Default by the Company in the payment of the Fundamental Change Repurchase Price with respect to such Notes), or any instructions for book-entry transfer of the Notes in compliance with the procedures of the Depositary shall be deemed to have been cancelled, and, upon such return or cancellation, as the case may be, the Fundamental Change Repurchase Notice with respect thereto shall be deemed to have been withdrawn.
Appears in 1 contract
Samples: Indenture (Boingo Wireless Inc)
Repurchase at Option of Holders Upon a Fundamental Change. (a) If a Fundamental Change occurs at any time prior to the Maturity Datetime, each Holder shall have the right, at such Holder’s option, to require the Company to repurchase for cash all of such Holder’s Notes, or any portion thereof that is equal to minimum denominations of $US$1,000 or an integral multiple of $1,000 in excess thereofUS$1,000, on the date Business Day (the “Fundamental Change Repurchase Date”) specified notified in writing by the Company as set forth in Section 15.02(c) that is not less than 20 calendar days Business Days or more than 35 calendar days Business Days following the date of the Fundamental Change Company Notice at a repurchase price equal to 100% of the principal amount thereof, plus accrued and unpaid interest Additional Interest, if any, thereon to, but excluding, the Fundamental Change Repurchase Date (the “Fundamental Change Repurchase Price”), unless the Fundamental Change Repurchase Date falls after a Regular an Additional Interest Record Date but on or prior to the Additional Interest Payment Date to which such Regular Additional Interest Record Date relates, in which case the Company shall instead pay on the Additional Interest Payment Date the full amount of accrued and unpaid interest (toAdditional Interest, but excludingif any, such Interest Payment Date) to Holders of record as of such Regular Additional Interest Record Date, and the Fundamental Change Repurchase Price shall be equal to 100% of the principal amount of Notes to be repurchased pursuant to this Article 15; provided that . The Trustee and the Company Conversion Agent, Paying Agent or any other agent appointed for such purpose shall not be required have no responsibility to repurchase, or to make an offer to repurchase, determine the Notes upon a Fundamental Change if a third party makes such an offer in the same manner, at the same time and otherwise in compliance with the requirements for an offer made by the Company as set forth in this Section 15.02 and such third party purchases all Notes properly surrendered and not validly withdrawn under its offer in the same manner, at the same time and otherwise in compliance with the requirements for an offer made by the Company as set forth in this Section 15.02.Repurchase Price.
(b) Repurchases of Notes under this Section 15.02 shall be made, at the option of the Holder thereof, upon:
(i) delivery to the Paying Agent Trustee (or tender other agent appointed to facilitate the repurchase (the “Tender Agent”for this purpose) by a Holder of a duly completed notice (the “Fundamental Change Repurchase Notice”) in the form set forth in Attachment 2 to the Form of Note attached hereto as Exhibit A, if the Notes are Physical Notes, or in compliance with the Depositary’s procedures for surrendering interests in Global Notesglobal notes, if the Notes are Global Notes, in each case on or before the close of business on the second Business Day immediately preceding the Fundamental Change Repurchase Date; and
(ii) delivery of the Notes, if the Notes are Physical Notes, to the Paying Agent or Tender Agent, as the case may be, Trustee at any time after delivery of the Fundamental Change Repurchase Notice (together with all necessary endorsements for transfer) at the Corporate Trust Office of the Paying Agent or the principal office of the Tender Agent located in the United States of America as notified by the Tender Agent to Holders and the Trustee, as applicableOffice, or book-entry transfer of the Notes, if the Notes are Global Notes, in compliance with the procedures of the Depositary, in each case such delivery being a condition to receipt by the Holder of the Fundamental Change Repurchase Price therefor. The Fundamental Change Repurchase Notice in respect of any Notes to be repurchased shall state:
(i) in the case of Physical Notes, the certificate numbers of the Notes to be delivered for repurchase;
(ii) the portion of the principal amount of Notes to be repurchased, which must be $US$1,000 or an integral multiple thereof; and
(iii) that the Notes are to be repurchased by the Company pursuant to the applicable provisions of the Notes and this Indenture; provided, however, that if the Notes are Global Notes, the Fundamental Change Repurchase Notice must comply with appropriate Depositary procedures. Notwithstanding anything herein to the contrary, any Holder delivering to the Paying Agent or Tender Agent, as the case may be, Trustee the Fundamental Change Repurchase Notice contemplated by this Section 15.02 shall have the right to withdraw, in whole or in part, such Fundamental Change Repurchase Notice at any time prior to the close of business on the second Business Day immediately preceding the Fundamental Change Repurchase Date by delivery of a duly completed written notice of withdrawal to the Paying Agent or Tender Agent, as the case may be, Trustee in accordance with Section 15.03, or in accordance with the customary procedures of the Depository with respect to Global Notes. The Paying Agent or Tender Agent, as the case may be, Trustee shall promptly notify the Company of the receipt by it of any Fundamental Change Repurchase Notice or written notice of withdrawal thereof.. No Fundamental Change Repurchase Notice with respect to any Notes may be delivered and no Note may be surrendered by a Holder for repurchase thereof to the extent such Holder has also surrendered a Repurchase Notice with respect to such Note in accordance with Section 15.01 and not validly withdrawn such Repurchase Notice in accordance with Section 15.03.
(c) On or before the 20th Business Day calendar day after the occurrence of the effective date of a Fundamental Change, the Company shall provide to all Holders of Notes Holders, the Trustee (and the TrusteeConversion Agent, the Conversion Agent (in the case of a Conversion Agent other than the Trustee) and the Paying Agent (and any other agent appointed for this purpose, in the case of a Paying Agent each case, if other than the Trustee) a written notice (the “Fundamental Change Company Notice”) of the occurrence of the effective date of the Fundamental Change and of the repurchase right at the option of the Holders arising as a result thereof. In the case of Physical Notes, such notice shall be by first class mail or, in the case of Global Notes, such notice shall be delivered in accordance with the applicable procedures of the Depositary. Simultaneously with providing such notice, the Company shall publish a notice containing the information set forth in the Fundamental Change Company Notice in a newspaper of general circulation in The City of New York or publish such information on the Company’s website or through such other public medium as the Company may use at that time. Each Fundamental Change Company Notice shall specify:
(i) the events causing the Fundamental Change and whether such events also constitute a Make-Whole Fundamental Change;
(ii) the effective date of the Fundamental Change;
(iii) the last date on which a Holder may exercise the repurchase right pursuant to this Article 15;
(iv) the Fundamental Change Repurchase Price;
(v) the Fundamental Change Repurchase Date;
(vi) the name and address of the Trustee, the Paying Agent, the Conversion Agent or Tender Agent, as the case may be, and the Conversion Agentany other agent appointed for repurchase, if applicable;
(vii) if applicable, the Conversion Rate and any adjustments to the Conversion Rate as a result of the such Fundamental Change if it is a Make-Whole Fundamental Change;
(viii) if applicable, that the Notes with respect to which a Fundamental Change Repurchase Notice has been delivered by a Holder may be converted only if the Holder validly withdraws the Fundamental Change Repurchase Notice in accordance with the terms of this Indenture; and
(ix) the procedures that Holders must follow to require the Company to repurchase their Notes. No failure of the Company to give the foregoing notices and no defect therein shall limit the Holders’ repurchase rights or affect the validity of the proceedings for the repurchase of the Notes pursuant to this Section 15.02. At the Company’s request, given at least five days prior to the date the Fundamental Change Company Notice is to be sent (or such shorter period as may be agreed to by the Trustee), the Trustee shall give such notice in the Company’s name and at the Company’s expense; provided, however, that, in all cases, the text of such Fundamental Change Company Notice shall be prepared by the Company..
(d) Notwithstanding the foregoing, no Notes may be repurchased by the Company on any date at the option of the Holders upon a Fundamental Change if the principal amount of the Notes has been accelerated, and such acceleration has not been rescinded, on or prior to such date (except in the case of an acceleration resulting from a Default default by the Company in the payment of the Fundamental Change Repurchase Price with respect to such Notes). The Paying Agent or Tender Agent, as the case may be, Trustee will promptly return to the respective Holders thereof any Physical Notes held by it during the acceleration of the Notes (except in the case of an acceleration resulting from a Default default by the Company in the payment of the Fundamental Change Repurchase Price with respect to such Notes), or any instructions for book-entry transfer of the Notes in compliance with the procedures of the Depositary shall be deemed to have been cancelled, and, upon such return or cancellation, as the case may be, the Fundamental Change Repurchase Notice with respect thereto shall be deemed to have been withdrawn.
Appears in 1 contract
Samples: Indenture (NIO Inc.)
Repurchase at Option of Holders Upon a Fundamental Change. (a) If a Fundamental Change occurs at any time prior to the Maturity Date, each Holder shall have the right, at such Holder’s option, right to require the Company Issuer to repurchase for cash all or part of such Holder’s Notes, or any portion Notes in a principal amount thereof that is equal to minimum denominations of $1,000 or an integral multiple of $1,000 in excess principal amount or multiples thereof, on the date (the “Fundamental Change Repurchase Date”) specified by the Issuer in the Fundamental Change Company Notice that is not less than 20 calendar days or nor more than 35 calendar days following 30 Business Days after the date of the Fundamental Change Company Notice at a repurchase price price, payable in cash, equal to 100% of the principal amount thereofof the Notes being repurchased, plus accrued and unpaid interest thereon to, but excluding, the Fundamental Change Repurchase Date (the “Fundamental Change Repurchase Price”). However, unless the if such Fundamental Change Repurchase Date falls is after a Regular Record Date but and on or prior to the Business Day immediately following the corresponding Interest Payment Date, the full amount of interest due shall be paid on the Interest Payment Date to which such the Holder of record on the Regular Record Date relates, in which case the Company shall instead pay the full amount of accrued and unpaid interest (to, but excluding, such Interest Payment Date) to Holders of record as of such Regular Record Date, and the Fundamental Change Repurchase Price shall be equal to 100% of the principal amount of Notes to be repurchased pursuant to this Article 15; provided that the Company shall not be required to repurchase, or to make an offer to repurchase, the Notes upon a Fundamental Change if a third party makes such an offer in the same manner, at the same time and otherwise in compliance with the requirements for an offer made by the Company as set forth in this Section 15.02 and such third party purchases all Notes properly surrendered and not validly withdrawn under its offer in the same manner, at the same time and otherwise in compliance with the requirements for an offer made by the Company as set forth in this Section 15.02.
(b) repurchased. Repurchases of Notes under this Section 15.02 3.01 shall be made, at the option of the Holder thereof, made upon:
(i) delivery to the Paying Agent or tender agent appointed to facilitate the repurchase (the “Tender Agent”) by a Holder of a duly completed written notice (or in the case of Notes held in book-entry form in accordance with the Depositary’s applicable procedures) (the “Fundamental Change Repurchase Notice”) of such Holder’s exercise of its repurchase right (together with the Notes to be repurchased, if certificated Notes have been issued) in the form set forth in Attachment 2 on the reverse of the Note prior to the Form of Note attached hereto as Exhibit A, if the Notes are Physical Notes, or in compliance with the Depositary’s procedures for surrendering interests in Global Notes, if the Notes are Global Notes, in each case on or before the close of business on the Business Day immediately preceding the Fundamental Change Repurchase DateDate (the “Fundamental Change Repurchase Expiration Time”); and
(ii) delivery or book-entry transfer of the Notes, if the Notes are Physical Notes, to the Paying Agent or Tender Agent, as the case may be, at any time after delivery of the Fundamental Change Repurchase Notice (together with all necessary endorsements for transferendorsements) and prior to the Fundamental Change Repurchase Expiration Time, at the Corporate Trust Office of the Paying Agent or the principal office of the Tender Agent located in the United States of America as notified by the Tender Agent to Holders and the TrusteeAgent, as applicable, or book-entry transfer of the Notes, if the Notes are Global Notes, in compliance with the procedures of the Depositary, in each case such delivery being a condition to receipt by the Holder of the Fundamental Change Repurchase Price therefor; provided, that such Fundamental Change Repurchase Price shall be so paid pursuant to this Section 3.01 only if the Notes so delivered to the Paying Agent shall conform in all respects to the description thereof in the related Fundamental Change Repurchase Notice. The Fundamental Change Repurchase Notice in respect of any Notes to be repurchased shall state:
(iA) in with respect to Global Notes, the case of Physical appropriate Depositary information and, with respect to certificated Notes, the certificate numbers numbers, if any, of the Notes to be delivered tendered for repurchase;
(iiB) the portion of the principal amount of the Notes to be repurchased, which must be $1,000 or an integral multiple multiples thereof; and
(iiiC) that the Notes are to be repurchased by the Company Issuer pursuant to the applicable provisions of the Notes and this Indenture; provided, however, that if the Notes are Global Notes, . Payment of the Fundamental Change Repurchase Price for Notes for which a Fundamental Change Repurchase Notice must comply has been delivered and not withdrawn is conditioned upon book-entry transfer or delivery of the Notes, together with appropriate Depositary proceduresnecessary endorsements, to the Paying Agent. Payment of the Fundamental Change Repurchase Price for the Notes shall be made on the later of the Fundamental Change Repurchase Date and the time of book-entry transfer or delivery of the Notes, as the case may be. All questions as to the validity, eligibility (including time of receipt) and acceptance of any Notes for repurchase shall be determined by the Issuer, whose determination shall be final and binding absent manifest error. Notwithstanding anything herein to the contrary, any Holder delivering to the Paying Agent or Tender Agent, as the case may be, the Fundamental Change Repurchase Notice contemplated by this Section 15.02 3.01 shall have the right to withdraw, in whole or in part, withdraw such Fundamental Change Repurchase Notice at any time prior to the close of business on the Business Day immediately preceding the Fundamental Change Repurchase Date Expiration Time by delivery of delivering a written notice of withdrawal to the Paying Agent or Tender Agent, as the case may be, in accordance with Section 15.03, 3.02 below (or in the case of Notes held in book-entry form in accordance with the customary procedures of the Depository with respect to Global NotesDepositary’s applicable procedures). The Paying Agent or Tender Agent, as the case may be, shall promptly notify the Company Issuer of the receipt by it of any Fundamental Change Repurchase Notice or written notice of withdrawal thereof.
(cb) On or before the 20th second Business Day after the occurrence of the effective date of a Fundamental Change, the Company Issuer shall provide to all Holders of Notes record on the date of the Fundamental Change at their addresses shown in the Register of the Registrar, and to beneficial owners to the Trusteeextent required by applicable law, the Conversion Agent (in the case of a Conversion Agent other than the Trustee) Trustee and the Paying Agent (in the case of Agent, a Paying Agent other than the Trustee) a written notice (the “Fundamental Change Company Notice”) of the occurrence of the effective date of the Fundamental Change and of the resulting repurchase right at the option of the Holders arising as a result thereof. In the case of Physical Notes, such notice shall be by first class mail or, in the case of Global Notes, such notice shall be delivered in accordance with the applicable procedures of the Depositary. Simultaneously with providing such notice, the Company shall publish a notice containing the information set forth in the Fundamental Change Company Notice on the Company’s website or through such other public medium as the Company may use at that timeright. Each Fundamental Change Company Notice shall specify, among other things:
(i) the events causing the Fundamental Change;
(ii) the effective date of the Fundamental Change;
(iii) the Fundamental Change Repurchase Date;
(iv) the last date on which a Holder repurchase upon a Fundamental Change may exercise be exercised, which shall be the repurchase right pursuant to this Article 15Business Day immediately preceding the Fundamental Change Repurchase Date;
(ivv) the Fundamental Change Repurchase Price;
(v) the Fundamental Change Repurchase Date;
(vi) the name names and address addresses of the Paying Agent or Tender Agent, as the case may be, and the Conversion Exchange Agent, if applicable;
(vii) if applicable, the Conversion Rate and any adjustments procedures that a Holder must follow to exercise the Conversion Rate as right to repurchase upon a result of the Fundamental Change;
(viii) that the Fundamental Change Repurchase Price for any Notes as to which a Fundamental Change Repurchase Notice has been given and not withdrawn shall be paid on the later of such Fundamental Change Repurchase Date and the time of book-entry transfer or delivery of the Notes (together with all necessary endorsements);
(ix) that, except as otherwise provided herein with respect to a Fundamental Change Repurchase Date that is after a Regular Record Date for the payment of an installment of interest and on or before the related Interest Payment Date, on and after such Fundamental Change Repurchase Date (unless there shall be a Default in the payment of the Fundamental Change Repurchase Price), interest on Notes subject to repurchase upon Fundamental Change shall cease to accrue, and all rights of the Holders of such Notes shall terminate, other than the right to receive, in accordance herewith, the Fundamental Change Repurchase Price;
(x) that a Holder shall be entitled to withdraw its election in the Fundamental Change Repurchase Notice prior to the close of business on the Business Day immediately preceding the Fundamental Change Repurchase Date, by means of a letter or facsimile transmission (receipt of which is confirmed and promptly followed by a letter) setting forth the name of such Holder, a statement that such Holder is withdrawing its election to have Notes purchased by the Issuer on such Fundamental Change Repurchase Date pursuant to a repurchase upon a Fundamental Change, the certificate number(s) of such Notes to be so withdrawn, if such Notes are certificated Notes, the principal amount of the Notes of such Holder to be so withdrawn, which amount must be $1,000 or an integral multiple thereof and the principal amount, if any, of the Notes of such Holder that remain subject to the Fundamental Change Repurchase Notice delivered by such Holder in accordance with this Section 3.01, which amount must be $1,000 or an integral multiple thereof;
(xi) the Exchange Rate and any adjustments to the Exchange Rate that shall result from such Fundamental Change;
(xii) that Notes with respect to which a Fundamental Change Repurchase Notice has been delivered is given by a Holder may be converted exchanged pursuant to Article 10 only if such Fundamental Change Repurchase Notice has been withdrawn in accordance with this Section 3.01 or the Holder validly withdraws Issuer defaults in the payment of the Fundamental Change Repurchase Notice in accordance with the terms of this IndenturePrice; and
(ixxiii) the procedures that Holders must follow to require CUSIP number or numbers, as the Company to repurchase their case may be, of the Notes. No failure of the Company Issuer to give the foregoing notices and no defect therein shall limit the Holders’ repurchase rights of Holders or affect the validity of the proceedings for the repurchase of the Notes pursuant to this Section 15.02. At the Company’s request, given at least five days prior to the date the Fundamental Change Company Notice is to be sent (or such shorter period as may be agreed to by the Trustee), the Trustee shall give such notice in the Company’s name and at the Company’s expense; provided, however, that, in all cases, the text of such Fundamental Change Company Notice shall be prepared by the Company3.01.
(dc) Notwithstanding the foregoing, no Notes may be repurchased by the Company on any date Issuer at the option of the Holders upon a Fundamental Change if the principal amount of the Notes has been accelerated, and such acceleration has not been rescinded, on or prior to such date the Fundamental Change Repurchase Date (except in the case of an acceleration resulting from a Default by the Company Issuer in the payment of the Fundamental Change Repurchase Price with respect to such Notes). The Paying Agent or Tender Agent, as the case may be, will promptly return to the respective Holders thereof any Physical Notes held by it during the acceleration of the Notes (except in the case of an acceleration resulting from a Default by the Company in the payment of the Fundamental Change Repurchase Price with respect to such Notes), or any instructions for book-entry transfer of the Notes in compliance with the procedures of the Depositary shall be deemed to have been cancelled, and, upon such return or cancellation, as the case may be, the Fundamental Change Repurchase Notice with respect thereto shall be deemed to have been withdrawn.
Appears in 1 contract
Samples: Indenture (Spansion Inc.)
Repurchase at Option of Holders Upon a Fundamental Change. (a) If a Fundamental Change occurs at any time prior to the Maturity Date, each Holder shall have the right, at such Holder’s option, to require the Company to repurchase for cash all of such Holder’s Notes, or any portion of the principal amount thereof properly surrendered and not validly withdrawn pursuant to Section 15.03 that is equal to minimum denominations of $1,000 or an integral multiple of $1,000 in excess thereof1,000, on the date (the “Fundamental Change Repurchase Date”) specified by the Company that is not less than 20 calendar days Business Days or more than 35 calendar days Business Days following the date of the Fundamental Change Company Notice at a repurchase price equal to 100% of the principal amount thereof, plus accrued and unpaid interest thereon to, but excluding, the Fundamental Change Repurchase Date (the “Fundamental Change Repurchase Price”), unless the Fundamental Change Repurchase Date falls after a Regular Record Date but on or prior to the Interest Payment Date to which such Regular Record Date relates, in which case the Company shall instead pay the full amount of accrued and unpaid interest (to, but excluding, such Interest Payment Date) to Holders of record as of such Regular Record Date, and the Fundamental Change Repurchase Price shall be equal to 100% of the principal amount of Notes to be repurchased pursuant to this Article 15; provided that the Company shall not be required to repurchase, or to make an offer to repurchase, the Notes upon a Fundamental Change if a third party makes such an offer in the same manner, at the same time and otherwise in compliance with the requirements for an offer made by the Company as set forth in this Section 15.02 and such third party purchases all Notes properly surrendered and not validly withdrawn under its offer in the same manner, at the same time and otherwise in compliance with the requirements for an offer made by the Company as set forth in this Section 15.02.
(b) Repurchases of Notes under this Section 15.02 shall be made, at the option of the Holder thereof, upon:
(i) delivery to the Paying Agent or tender agent appointed to facilitate the repurchase (the “Tender Agent”) by a Holder of a duly completed notice (the “Fundamental Change Repurchase Notice”) in the form set forth in Attachment 2 to the Form of Note attached hereto as Exhibit A, if the Notes are Physical Notes, or in compliance with the Depositary’s procedures for surrendering interests in Global Notes, if the Notes are Global Notes, in each case on or before the close of business on the Business Day immediately preceding the Fundamental Change Repurchase Date; and
(ii) delivery of the Notes, if the Notes are Physical Notes, to the Paying Agent or Tender Agent, as the case may be, at any time after delivery of the Fundamental Change Repurchase Notice (together with all necessary endorsements for transfer) at the Corporate Trust Office of the Paying Agent or the principal office of the Tender Agent located in the United States of America as notified by the Tender Agent to Holders and the Trustee, as applicableAgent, or book-entry transfer of the Notes, if the Notes are Global Notes, in compliance with the procedures of the Depositary, in each case such delivery being a condition to receipt by the Holder of the Fundamental Change Repurchase Price therefor. The Fundamental Change Repurchase Notice in respect of any Physical Notes to be repurchased shall state:
(i) in the case of Physical Notes, the certificate numbers of the Notes to be delivered for repurchase;
(ii) the portion of the principal amount of Notes to be repurchased, which must be $1,000 or an integral multiple thereof; and
(iii) that the Notes are to be repurchased by the Company pursuant to the applicable provisions of the Notes and this Indenture; provided, however, that if . If the Notes are Global Notes, to exercise the Fundamental Change Repurchase Notice repurchase right, Holders must comply surrender their Notes in accordance with appropriate applicable Depositary procedures. Notwithstanding anything herein to the contrary, any Holder delivering to the Paying Agent or Tender Agent, as the case may be, the Fundamental Change Repurchase Notice contemplated by this Section 15.02 shall have the right to withdraw, in whole or in part, such Fundamental Change Repurchase Notice at any time prior to the close of business on the Business Day immediately preceding the Fundamental Change Repurchase Date by delivery of a written notice of withdrawal to the Paying Agent or Tender Agent, as the case may be, in accordance with Section 15.03, or in accordance with the customary procedures of the Depository with respect to Global Notes. The Paying Agent or Tender Agent, as the case may be, shall promptly notify the Company of the receipt by it of any Fundamental Change Repurchase Notice or written notice of withdrawal thereof.
(c) On or before the 20th Business Day after the occurrence of the effective date of a Fundamental Change, the Company shall provide to all Holders of Notes and the Trustee, the Conversion Agent (in the case of a Conversion Agent other than the Trustee) Trustee and the Paying Agent (in the case of a Paying Agent other than the Trustee) a written notice (the “Fundamental Change Company Notice”) of the occurrence of the effective date of the Fundamental Change and of the repurchase right at the option of the Holders arising as a result thereof. In the case of Physical Notes, such notice shall be by first class mail or, in the case of Global Notes, such notice shall be delivered in accordance with the applicable procedures of the Depositary. Simultaneously with providing such notice, the Company shall publish a notice containing the information set forth in the Fundamental Change Company Notice on the Company’s website or through such other public medium as the Company may use at that time. Each Fundamental Change Company Notice shall specify:
(i) the events causing the Fundamental Change;
(ii) the effective date of the Fundamental Change;
(iii) the last date on which a Holder may exercise the repurchase right pursuant to this Article 15;
(iv) the Fundamental Change Repurchase Price;
(v) the Fundamental Change Repurchase Date;
(vi) the name and address of the Paying Agent or Tender Agent, as the case may be, and the Conversion Agent, if applicable;
(vii) if applicable, the Conversion Rate and any adjustments to the Conversion Rate as a result of the such Fundamental Change (or related Make-Whole Fundamental Change);
(viii) that the Notes with respect to which a Fundamental Change Repurchase Notice has been delivered by a Holder may be converted only if the Holder validly withdraws the Fundamental Change Repurchase Notice in accordance with the terms of this Indenture; and
(ix) the procedures that Holders must follow to require the Company to repurchase their Notes. No failure of the Company to give the foregoing notices and no defect therein shall limit the Holders’ repurchase rights or affect the validity of the proceedings for the repurchase of the Notes pursuant to this Section 15.02. At the Company’s request, given at least five days prior to the date the Fundamental Change Company Notice is to be sent (or such shorter period as may be agreed to by the Trustee), the Trustee shall give such notice in the Company’s name and at the Company’s expense; provided, however, that, in all cases, the text of such Fundamental Change Company Notice shall be prepared by the Company.
(d) Notwithstanding the foregoing, no Notes may be repurchased by the Company on any date at the option of the Holders upon a Fundamental Change if the principal amount of the Notes has been accelerated, and such acceleration has not been rescinded, on or prior to such date (except in the case of an acceleration resulting from a Default by the Company in the payment of the Fundamental Change Repurchase Price with respect to such Notes). The Paying Agent or Tender Agent, as the case may be, will promptly return to the respective Holders thereof any Physical Notes held by it during the acceleration of the Notes (except in the case of an acceleration resulting from a Default by the Company in the payment of the Fundamental Change Repurchase Price with respect to such Notes), or any instructions for book-entry transfer of the Notes in compliance with the procedures of the Depositary shall be deemed to have been cancelled, and, upon such return or cancellation, as the case may be, the Fundamental Change Repurchase Notice with respect thereto shall be deemed to have been withdrawn.
Appears in 1 contract
Samples: Indenture (Rapid7, Inc.)
Repurchase at Option of Holders Upon a Fundamental Change. (a) If there shall occur a Fundamental Change occurs at any time prior to maturity of the Maturity DateNotes, then each Holder Noteholder shall have the right, at such Holder’s holder's option, to require the Company to repurchase for cash all of such Holder’s holder's Notes, or any portion thereof that is equal to minimum denominations of $1,000 or an integral a multiple of $1,000 in excess thereofprincipal amount, on the a date (the “"Fundamental Change Repurchase Date”") specified by the Company Company, that is not less than 20 calendar days or nor more than 35 calendar days following Business Days after the date of the Company Repurchase Notice (as defined in Section 3.07(d)) related to such Fundamental Change Company Notice (or, if such day is not a Business Day, the next succeeding Business Day) at a repurchase purchase price equal to 100% of the principal amount thereof, plus together with interest, accrued and unpaid interest thereon to, but excluding, the Fundamental Change Repurchase Date (Date, subject to the “Fundamental Change Repurchase Price”), unless the provisions of Section 3.07; provided that if such Fundamental Change Repurchase Date falls after a Regular Record Date but record date and on or prior to the Interest Payment Date corresponding interest payment date, then the interest payable on such interest payment date shall be paid to which such Regular the holders of record of the Notes on the applicable Record Date relates, in which case the Company shall instead pay the full amount of accrued and unpaid interest (to, but excluding, such Interest Payment Date) to Holders of record as of such Regular Record Date, and the Fundamental Change Repurchase Price shall be equal to 100% of the principal amount of Notes to be repurchased pursuant to this Article 15; provided that the Company shall not be required to repurchase, or to make an offer to repurchase, holders surrendering the Notes upon a Fundamental Change if a third party makes for redemption on such an offer in the same manner, at the same time and otherwise in compliance with the requirements for an offer made by the Company as set forth in this Section 15.02 and such third party purchases all Notes properly surrendered and not validly withdrawn under its offer in the same manner, at the same time and otherwise in compliance with the requirements for an offer made by the Company as set forth in this Section 15.02date.
(b) Repurchases of Notes under this Section 15.02 shall be made, at the option of the Holder thereof, upon:
(i) delivery to the Paying Agent or tender agent appointed to facilitate the repurchase (the “Tender Agent”) by a Holder of a duly completed notice (the “Fundamental Change Repurchase Notice”) in the form set forth in Attachment 2 to the Form of Note attached hereto as Exhibit A, if the Notes are Physical Notes, or in compliance with the Depositary’s procedures for surrendering interests in Global Notes, if the Notes are Global Notes, in each case on or before the close of business on the Business Day immediately preceding the Fundamental Change Repurchase Date; and
(ii) delivery of the Notes, if the Notes are Physical Notes, to the Paying Agent or Tender Agent, as the case may be, at any time after delivery of the Fundamental Change Repurchase Notice (together with all necessary endorsements for transfer) at the Corporate Trust Office of the Paying Agent or the principal office of the Tender Agent located in the United States of America as notified by the Tender Agent to Holders and the Trustee, as applicable, or book-entry transfer of the Notes, if the Notes are Global Notes, in compliance with the procedures of the Depositary, in each case such delivery being a condition to receipt by the Holder of the Fundamental Change Repurchase Price therefor. The Fundamental Change Repurchase Notice in respect of any Notes to be repurchased shall state:
(i) in the case of Physical Notes, the certificate numbers of the Notes to be delivered for repurchase;
(ii) the portion of the principal amount of Notes to be repurchased, which must be $1,000 or an integral multiple thereof; and
(iii) that the Notes are to be repurchased by the Company pursuant to the applicable provisions of the Notes and this Indenture; provided, however, that if the Notes are Global Notes, the Fundamental Change Repurchase Notice must comply with appropriate Depositary procedures. Notwithstanding anything herein to the contrary, any Holder delivering to the Paying Agent or Tender Agent, as the case may be, the Fundamental Change Repurchase Notice contemplated by this Section 15.02 shall have the right to withdraw, in whole or in part, such Fundamental Change Repurchase Notice at any time prior to the close of business on the Business Day immediately preceding the Fundamental Change Repurchase Date by delivery of a written notice of withdrawal to the Paying Agent or Tender Agent, as the case may be, in accordance with Section 15.03, or in accordance with the customary procedures of the Depository with respect to Global Notes. The Paying Agent or Tender Agent, as the case may be, shall promptly notify the Company of the receipt by it of any Fundamental Change Repurchase Notice or written notice of withdrawal thereof.
(c) On or before the 20th tenth Business Day after the occurrence of the effective date of a Fundamental Change, the Company shall provide mail or cause to be mailed to all Holders holders of Notes and record on the Trustee, the Conversion Agent (in the case of a Conversion Agent other than the Trustee) and the Paying Agent (in the case of a Paying Agent other than the Trustee) a notice (the “Fundamental Change Company Notice”) of the occurrence of the effective date of the Fundamental Change and a Company Repurchase Notice as set forth in Section 3.07(d). The Company shall also deliver a copy of the repurchase right Company Repurchase Notice to the Trustee at the option of the Holders arising such time as a result thereofit is mailed to Noteholders. In the case of Physical Notes, such notice shall be by first class mail or, in the case of Global Notes, such notice shall be delivered in accordance Concurrently with the applicable procedures mailing of the Depositary. Simultaneously with providing such noticeCompany Repurchase Notice, the Company shall publish issue a notice containing the information set forth press release announcing such Fundamental Change referred to in the Fundamental Change Company Notice on Repurchase Notice, the Company’s website or through such other public medium as form and content of which press release shall be determined by the Company may use at that timein its sole discretion. Each Fundamental Change Company Notice The failure to issue any such press release or any defect therein shall specify:
(i) not affect the events causing the Fundamental Change;
(ii) the effective date validity of the Fundamental Change;
(iii) the last date on which a Holder may exercise Company Repurchase Notice or any proceedings for the repurchase right pursuant of any Note which any Noteholder may elect to this Article 15;
(iv) the Fundamental Change Repurchase Price;
(v) the Fundamental Change Repurchase Date;
(vi) the name and address of the Paying Agent or Tender Agent, as the case may be, and the Conversion Agent, if applicable;
(vii) if applicable, the Conversion Rate and any adjustments to the Conversion Rate as a result of the Fundamental Change;
(viii) that the Notes with respect to which a Fundamental Change Repurchase Notice has been delivered by a Holder may be converted only if the Holder validly withdraws the Fundamental Change Repurchase Notice in accordance with the terms of this Indenture; and
(ix) the procedures that Holders must follow to require have the Company to repurchase their Notesredeem as provided in this Section 3.05. No failure of the Company to give the foregoing notices and no defect therein shall limit the Holders’ Noteholders' repurchase rights or affect the validity of the proceedings for the repurchase of the Notes pursuant to this Section 15.02. At 3.05.
(c) For a Note to be so repurchased at the Company’s requestoption of the holder, given the Company must receive at least five days prior to the date office or agency of the Company maintained for that purpose or, at the option of such holder, the Corporate Trust Office, (i) the form entitled "Repurchase Notice" as set forth on the reverse of the Note duly completed, together with (ii) such Notes duly endorsed for transfer, or (if the Notes are Global Notes) book-entry transfer of the Notes, on or before the close of business on the Fundamental Change Company Notice is Repurchase Date; provided that the Notes so delivered shall be repurchased only if they conform in all respects to be sent (or such shorter period as may be agreed to by the Trustee), the Trustee shall give such notice description thereof in the Company’s name related Repurchase Notice. All questions as to the validity, eligibility (including time of receipt) and at the Company’s expense; provided, however, that, in all cases, the text acceptance of such Fundamental Change Company Notice any Note for repurchase shall be prepared determined by the Company, whose determination shall be final and binding absent manifest error.
(d) Notwithstanding The Company shall purchase from the foregoingholder thereof, no Notes may be repurchased by the Company on any date at the option pursuant to this Section 3.05, a portion of the Holders upon a Fundamental Change Note, if the principal amount of such portion is $1,000 or a whole multiple of $1,000. Provisions of this Indenture that apply to the Notes has been accelerated, and purchase of all of a Note also apply to the purchase of such acceleration has not been rescinded, on or prior to portion of such date Note.
(except in e) In the case of a reclassification, change, consolidation, merger, combination, sale or conveyance to which Section 16.06 applies, in which the Common Stock of the Company is changed or exchanged as a result into the right to receive stock, securities or other property or assets (including cash), which includes shares of Common Stock of the Company or shares of common stock of another Person that are, or upon issuance will be, traded on a United States national securities exchange or approved for trading on an acceleration established automated over-the-counter trading market in the United States and such shares constitute at the time such change or exchange becomes effective in excess of 50% of the aggregate fair market value of such stock, securities or other property or assets (including cash) (as determined by the Company, which determination shall be conclusive and binding), then the Person formed by such consolidation or resulting from a Default by the Company in the payment of the Fundamental Change Repurchase Price with respect to such Notes). The Paying Agent merger or Tender Agentwhich acquires such assets, as the case may be, will promptly return shall execute and deliver to the respective Holders thereof any Physical Notes held Trustee a supplemental indenture (accompanied by it during an Opinion of Counsel that such supplemental indenture complies with the acceleration Trust Indenture Act as in force at the date of execution of such supplemental indenture) modifying the provisions of this Indenture relating to the right of holders of the Notes (except to cause the Company to repurchase the Notes following a Fundamental Change, including without limitation the applicable provisions of this Section 3.05 and the definitions of Closing Sale Price, Common Stock and Fundamental Change, as appropriate, as determined in the case of an acceleration resulting from a Default good faith by the Company (which determination shall be conclusive and binding), to make such provisions apply to such other Person if different from the Company and the common stock issued by such Person (in the payment lieu of the Fundamental Change Repurchase Price with respect to such Notes), or any instructions for book-entry transfer Company and the Common Stock of the Notes Company).
(f) If the Company has elected to pay the purchase price in compliance with whole or in part in shares of Common Stock, but is unable to deliver the procedures shares, a holder, in such holder's Repurchase Notice and in any written notice of withdrawal delivered by such holder pursuant to the Depositary terms of Section 3.08, may elect to withdraw the Repurchase Notice or to receive cash. If a holder fails to indicate in its Repurchase Notice its election to receive cash or withdraw, the holder shall be deemed to have been cancelled, and, upon elected to receive cash in respect of the entire purchase price for all Notes subject to such return Repurchase Notice.
(g) The Company will comply with the provisions of Rule 13e-4 and any other tender offer rules under the Exchange Act to the extent then applicable in connection with the repurchase rights of the holders of Notes in the event of a Fundamental Change.
(h) The Trustee (or cancellation, as other paying agent appointed by the case may be, Company) shall promptly notify the Fundamental Change Company of the receipt by it of any Repurchase Notice with respect thereto or written notice of withdrawal thereof. Any purchase by the Company contemplated pursuant to the provisions of this Section 3.05 shall be deemed consummated by the delivery of the consideration to have been withdrawnbe received by the holder promptly following the later of the Repurchase Date and the time of the book-entry transfer or delivery of the Note.
Appears in 1 contract
Repurchase at Option of Holders Upon a Fundamental Change. (a) If Subject to Section 15.02(f), if a Fundamental Change occurs at any time prior to the Maturity Datetime, each Holder shall have the right, at such Holder’s option, to require the Company to repurchase for cash all of such HolderXxxxxx’s Notes, or any portion of the principal amount thereof properly surrendered and not validly withdrawn pursuant to Section 15.03 that is equal to minimum denominations of $1,000 or an integral multiple of $1,000 in excess thereof1,000, on the date (the “Fundamental Change Repurchase Date”) specified by the Company that is not less than 20 calendar days Business Days or more than 35 calendar days Business Days following the date of the Fundamental Change Company Notice at a repurchase price equal to 100% of the principal amount thereof, plus accrued and unpaid interest thereon to, but excluding, the Fundamental Change Repurchase Date (the “Fundamental Change Repurchase Price”), unless the Fundamental Change Repurchase Date falls after a Regular Record Date but on or prior to the Interest Payment Date to which such Regular Record Date relates, in which case the Company shall instead pay the full amount of accrued and unpaid interest (to, but excluding, such Interest Payment Date) to Holders of record as of the close of business on such Regular Record Date on, or at the Company’s election, before such Interest Payment Date, and the Fundamental Change Repurchase Price shall be equal to 100% of the principal amount of Notes to be repurchased pursuant to this Article 15; provided that the Company shall not be required to repurchase, or to make an offer to repurchase, the Notes upon a Fundamental Change if a third party makes such an offer in the same manner, at the same time and otherwise in compliance with the requirements for an offer made by the Company as set forth in this Section 15.02 and such third party purchases all Notes properly surrendered and not validly withdrawn under its offer in the same manner, at the same time and otherwise in compliance with the requirements for an offer made by the Company as set forth in this Section 15.02.
(b) Repurchases of Notes under this Section 15.02 shall be made, at the option of the Holder thereof, upon:
(i) delivery to the Paying Agent or tender agent appointed to facilitate the repurchase (the “Tender Agent”) by a Holder of a duly completed notice (the “Fundamental Change Repurchase Notice”) in the form set forth in Attachment 2 to the Form of Note attached hereto as Exhibit A, if the Notes are Physical Notes, or in compliance with the Depositary’s applicable procedures for surrendering interests in Global Notes, if the Notes are Global Notes, in each case case, on or before the close of business on the Business Day immediately preceding the Fundamental Change Repurchase Date; and
(ii) delivery of the Notes, if the Notes are Physical Notes, to the Paying Agent or Tender Agent, as the case may be, at any time after delivery of the Fundamental Change Repurchase Notice (together with all necessary endorsements for transfer) at the Corporate Trust Office of the Paying Agent or the principal office of the Tender Agent located in the United States of America as notified by the Tender Agent to Holders and the Trustee, as applicableAgent, or book-entry transfer of the Notes, if the Notes are Global Notes, in compliance with the applicable procedures of the Depositary, in each case case, such delivery or transfer being a condition to receipt by the Holder of the Fundamental Change Repurchase Price therefor. The Fundamental Change Repurchase Notice in respect of any Physical Notes to be repurchased shall state:
(i) in the case of Physical Notes, the certificate numbers of the Notes to be delivered for repurchase;
; (ii) the portion of the principal amount of Notes to be repurchased, which must be $1,000 or an integral multiple thereof; and
(iii) that the Notes are to be repurchased by the Company pursuant to the applicable provisions of the Notes and this Indenture; provided, however, that if . If the Notes are Global Notes, to exercise the Fundamental Change Repurchase Notice repurchase right, Holders must comply surrender their Notes in accordance with appropriate applicable Depositary procedures. Notwithstanding anything herein to the contrary, any Holder delivering to the Paying Agent or Tender Agent, as the case may be, the Fundamental Change Repurchase Notice contemplated by this Section 15.02 shall have the right to withdraw, in whole or in part, such Fundamental Change Repurchase Notice at any time prior to the close of business on the Business Day immediately preceding the Fundamental Change Repurchase Date by delivery of a written notice of withdrawal to the Paying Agent or Tender Agent, as the case may be, in accordance with Section 15.03, or in accordance with the customary procedures of the Depository with respect to Global Notes. The Paying Agent or Tender Agent, as the case may be, shall promptly notify the Company of the receipt by it of any Fundamental Change Repurchase Notice or written notice of withdrawal thereof.
(c) On or before the 20th Business Day after the occurrence of the effective date of a Fundamental Change, the Company shall provide to all Holders of Notes and the Trustee, the Conversion Agent (in the case of a Conversion Agent other than the Trustee) Trustee and the Paying Agent (in the case of a Paying Agent other than the Trustee) a notice (the “Fundamental Change Company Notice”) of the occurrence of the effective date of the Fundamental Change and of the resulting repurchase right at the option of the Holders arising as a result thereof. In the case of Physical Notes, such notice shall be by first class mail or, in the case of Global Notes, such notice shall be delivered in accordance with the applicable procedures of the Depositary. Simultaneously with providing such notice, the Company shall publish a notice containing the such information set forth in the Fundamental Change Company Notice on the Company’s website or through such other public medium as the Company may use at that time. Each Fundamental Change Company Notice shall specify:
(i) the events causing the Fundamental Change;
(ii) the effective date of the Fundamental Change;
(iii) the last date on which a Holder may exercise the repurchase right pursuant to this Article 15;
(iv) the Fundamental Change Repurchase Price;
(v) the Fundamental Change Repurchase Date;
(vi) the name and address of the Paying Agent or Tender Agent, as the case may be, and the Conversion Agent, if applicable;
(vii) if applicable, the Conversion Rate and any adjustments to the Conversion Rate as a result of the Fundamental Change (or related Make-Whole Fundamental Change);
(viii) that the Notes with respect to which a Fundamental Change Repurchase Notice has been delivered by a Holder may be converted only if the Holder validly withdraws the Fundamental Change Repurchase Notice in accordance with the terms of this Indenture; and
(ix) the procedures that Holders must follow to require the Company to repurchase their Notes. No failure of the Company to give the foregoing notices and no defect therein shall limit the Holders’ repurchase rights or affect the validity of the proceedings for the repurchase of the Notes pursuant to this Section 15.02. At the Company’s written request, given at least five days prior to the date the Fundamental Change Company Notice (2) Business Days before such notice is to be sent (or such shorter period periods as may shall be agreed acceptable to by the Trustee), the Trustee shall give such notice in the Company’s name and at the Company’s expense; provided, however, that, in all cases, the text of such Fundamental Change Company Notice shall be prepared by the Company.
(d) Notwithstanding anything to the contrary in this Article 15, the Company shall not be required to repurchase, or to make an offer to repurchase, the Notes upon a Fundamental Change if a third party makes such an offer in the same manner, at the same time and otherwise in compliance with the requirements for an offer made by the Company as set forth in this Article 15 and such third party purchases all Notes properly surrendered and not validly withdrawn under its offer in the same manner, at the same time and otherwise in compliance with the requirements for an offer made by the Company as set forth above.
(e) Notwithstanding the foregoing, no Notes may be repurchased by the Company on any date at the option of the Holders upon a Fundamental Change if the principal amount of the Notes has been accelerated, and such acceleration has not been rescinded, on or prior to such date (except in the case of an acceleration resulting from a Default by the Company in the payment of the Fundamental Change Repurchase Price with respect to such Notes). The Paying Agent or Tender Agent, as the case may be, will promptly return to the respective Holders thereof any Physical Notes held by it during the acceleration of the Notes (except in the case of an acceleration resulting from a Default by the Company in the payment of the Fundamental Change Repurchase Price with respect to such Notes), or any instructions for book-entry transfer of the Notes in compliance with the applicable procedures of the Depositary shall be deemed to have been cancelled, and, upon such return or cancellation, as the case may be, the Fundamental Change Repurchase Notice with respect thereto shall be deemed to have been withdrawn.
(f) Notwithstanding anything to the contrary in this Section 15.02, the Company shall not be required to send a Fundamental Change Company Notice, or offer to repurchase or repurchase any Notes, as set forth in this Article 15, in connection with a Fundamental Change occurring pursuant to clause (b)(A) or (B) (or pursuant to clause (a) that also constitutes a Fundamental Change occurring pursuant to clause (b)(A) or (B)) of the definition thereof, if: (i) such Fundamental Change constitutes a Share Exchange Event whose Reference Property consists entirely of cash in U.S. dollars; (ii) immediately after such Fundamental Change, the Notes become immediately convertible (pursuant to Section 14.07 and, if applicable, Section 14.03) into consideration that consists solely of U.S. dollars in an amount per $1,000 principal amount of Notes that equals or exceeds the Fundamental Change Repurchase Price per $1,000 principal amount of Notes (calculated assuming that the same includes the maximum amount of any accrued but unpaid interest payable as part of the Fundamental Change Repurchase Price for such Fundamental Change); and (iii) the Company timely sends the notice relating to such Fundamental Change required pursuant to Section 14.01(b)(iii). Any Fundamental Change with respect to which, in accordance with the provisions described in this Section 15.02(f), the Company does not offer to repurchase any Notes is referred to as herein as an “Exempted Fundamental Change.”
Appears in 1 contract
Samples: Indenture (Tandem Diabetes Care Inc)
Repurchase at Option of Holders Upon a Fundamental Change. (a) If a Fundamental Change occurs at any time prior to the Maturity Datetime, then each Holder Noteholder shall have the right, at such Holder’s option, to require the Company to repurchase for cash all of such Holder’s Notes, Notes or any portion thereof that is equal to minimum denominations of $1,000 or an integral a multiple of $1,000 in excess thereofprincipal amount, for cash on the date (the “"Fundamental Change Repurchase Date”) specified by the Company that is not less than 20 calendar days or twenty (20) Business Days and not more than 35 calendar days following thirty-five (35) Business Days after the date of the Fundamental Change Company Notice (as defined below) at a repurchase price equal to 100% of the principal amount thereof, plus together with accrued and unpaid interest thereon to, but excluding, the Fundamental Change Repurchase Date (the “Fundamental Change Repurchase Price”), unless the Fundamental Change Repurchase Date falls after a Regular Record Date but on or prior to the Interest Payment Date to which such Regular Record Date relates, in which case the Company shall instead pay the full amount of accrued and unpaid interest (to, but excluding, such Interest Payment Date) to Holders of record as of such Regular Record Date, and the Fundamental Change Repurchase Price shall be equal to 100% of the principal amount of Notes to be repurchased pursuant to this Article 15; provided that the Company shall not be required to repurchase, or to make an offer to repurchase, the Notes upon a Fundamental Change if a third party makes such an offer in the same manner, at the same time and otherwise in compliance with the requirements for an offer made by the Company as set forth in this Section 15.02 and such third party purchases all Notes properly surrendered and not validly withdrawn under its offer in the same manner, at the same time and otherwise in compliance with the requirements for an offer made by the Company as set forth in this Section 15.02.
(b) . Repurchases of Notes under this Section 15.02 9.02 shall be made, at the option of the Holder thereof, upon:
(i) delivery to the Trustee (or other Paying Agent or tender agent appointed to facilitate by the repurchase (the “Tender Agent”Company) by a Holder of a duly completed notice (the “Fundamental Change Repurchase Notice”) in the form set forth in Attachment 2 on the reverse of the Note prior to the Form of Note attached hereto as Exhibit A, if the Notes are Physical Notes, or in compliance with the Depositary’s procedures for surrendering interests in Global Notes, if the Notes are Global Notes, in each case on or before the close of business on the Business Day immediately preceding the Fundamental Change Repurchase Date; and
(ii) delivery or book-entry transfer of the Notes, if the Notes are Physical Notes, to the Trustee (or other Paying Agent or Tender Agent, as appointed by the case may be, Company) at any time after delivery of the Fundamental Change Repurchase Notice (together with all necessary endorsements for transferendorsements) at the Corporate Trust Office of the Trustee (or other Paying Agent appointed by the Company) in the Borough of Manhattan or the principal office City of the Tender Agent located in the United States of America as notified by the Tender Agent to Holders and the TrusteeBoston, as applicable, or book-entry transfer of the Notes, if the Notes are Global Notes, in compliance with the procedures of the Depositary, in each case such delivery being a condition to receipt by the Holder of the Fundamental Change Repurchase Price therefor; provided that such Fundamental Change Repurchase Price shall be so paid pursuant to this Section 9.02 only if the Note so delivered to the Trustee (or other Paying Agent appointed by the Company) shall conform in all respects to the description thereof in the related Fundamental Change Repurchase Notice. The Fundamental Change Repurchase Notice in respect of any Notes to be repurchased shall state:
(iA) in the case of Physical Notesif certificated, the certificate numbers of the Notes to be delivered for repurchase;
(iiB) the portion of the principal amount of Notes to be repurchased, which must be $1,000 or an integral multiple thereof; and
(iiiC) that the Notes are to be repurchased by the Company pursuant to the applicable provisions of the Notes and this Fifth Supplemental Indenture; provided, however, that if . Any repurchase by the Notes are Global Notes, the Fundamental Change Repurchase Notice must comply with appropriate Depositary procedures. Notwithstanding anything herein Company contemplated pursuant to the contrary, any Holder delivering to the Paying Agent or Tender Agent, as the case may be, the Fundamental Change Repurchase Notice contemplated by provisions of this Section 15.02 9.02 shall have be consummated by the right delivery of the consideration to withdraw, in whole or in part, such Fundamental Change Repurchase Notice at any time prior to be received by the close Holder promptly following the later of business on the Business Day immediately preceding the Fundamental Change Repurchase Date by and the time of the book-entry transfer or delivery of a written notice of withdrawal to the Note. The Trustee (or other Paying Agent or Tender Agent, as appointed by the case may be, in accordance with Section 15.03, or in accordance with the customary procedures of the Depository with respect to Global Notes. The Paying Agent or Tender Agent, as the case may be, Company) shall promptly notify the Company of the receipt by it of any Fundamental Change Repurchase Notice or written notice of withdrawal thereofthereof in accordance with the provisions of Section 9.02(c). Any Note that is to be repurchased only in part shall be surrendered to the Trustee (with, if the Company or the Trustee so requires, due endorsement by, or a written instrument of transfer in form satisfactory to the Company and the Trustee duly executed by the Holder thereof or his attorney duly authorized in writing), and the Company shall execute, and the Trustee shall authenticate and make available for delivery to the Holder of such Note without service charge, a new Note or Notes, containing identical terms and conditions, each in an authorized denomination in aggregate principal amount equal to and in exchange for the unrepurchased portion of the principal of the Note so surrendered.
(cb) On or before the 20th Business Day twentieth day after the occurrence of the effective date of a any Fundamental Change, the Company shall provide to all Holders of record of the Notes and the Trustee, the Conversion Agent (in the case of a Conversion Agent other than the Trustee) Trustee and the Paying Agent (in the case of a Paying Agent other than the Trustee) a notice (the “"Fundamental Change Company Notice”) of the occurrence of the effective date of the such Fundamental Change and of the repurchase right at the option of the Holders arising as a result thereof. In the case of Physical Notes, such notice Such mailing shall be by first class mail or, in the case of Global Notes, such notice shall be delivered in accordance with the applicable procedures of the Depositarymail. Simultaneously with providing such noticeFundamental Change Company Notice, the Company shall publish a notice containing the information set forth included therein once in the Fundamental Change Company Notice a newspaper of general circulation in The City of New York or publish such information on the Company’s website or through such other public medium as the Company may use at that such time. Each Fundamental Change Company Notice shall specify:
(i) the events causing the Fundamental Change;
(ii) the effective date of the Fundamental Change;
(iii) that the last date on which a Holder may must exercise the repurchase right pursuant on or prior to this Article 15the close of business on the Fundamental Change Repurchase Date;
(iv) the Fundamental Change Repurchase Price;
(v) the Fundamental Change Repurchase Date;
(vi) the name and address of the Paying Agent or Tender Agent, as the case may be, and the Conversion Agent, if applicable;
(vii) if applicable, the applicable Conversion Rate and any adjustments to the applicable Conversion Rate as a result of the Fundamental ChangeRate;
(viii) that the Notes with respect to which a Fundamental Change Repurchase Notice has been delivered by a Holder may be converted only if the Holder validly withdraws the Fundamental Change Repurchase Notice in accordance with the terms of this Fifth Supplemental Indenture; and
(ix) the procedures that Holders must follow to require the Company to repurchase their Notes. No failure of the Company to give the foregoing notices and no defect therein shall limit the HoldersNoteholders’ repurchase rights or affect the validity of the proceedings for the repurchase of the Notes pursuant to this Section 15.02. At the Company’s request, given at least five days prior 9.02.
(c) A Fundamental Change Repurchase Notice may be withdrawn by means of a written notice of withdrawal delivered to the date Trustee and Paying Agent in accordance with the Fundamental Change Company Notice is at any time prior to be sent (or such shorter period as may be agreed the close of business on the Business Day prior to by the Trustee), the Trustee shall give such notice in the Company’s name and at the Company’s expense; provided, however, that, in all cases, the text of such Fundamental Change Company Notice shall be prepared by the Company.Repurchase Date, specifying:
(di) Notwithstanding the foregoing, no Notes may be repurchased by the Company on any date at the option of the Holders upon a Fundamental Change if the principal amount of the Notes has with respect to which such notice of withdrawal is being submitted;
(ii) if certificated Notes have been acceleratedissued, and the certificate numbers of the withdrawn Notes; and
(iii) the principal amount, if any, of such acceleration has Notes that remains subject to the original Fundamental Change Repurchase Notice, which portion must be in principal amounts of $1,000 or an integral multiple of $1,000; provided, however, that if the Notes are not been rescindedin certificated form, on the notice must comply with appropriate procedures of the Depositary.
(d) On or prior to such date 11:00 a.m. (except local time in The City of New York) on the case of an acceleration resulting from a Default second Business Day following the Fundamental Change Repurchase Date, the Company will deposit with the Trustee (or other Paying Agent appointed by the Company or if the Company is acting as its own Paying Agent, set aside, segregate and hold in trust in accordance with the Base Indenture as modified by this Fifth Supplemental Indenture) an amount of money sufficient to repurchase on the Fundamental Change Repurchase Date all of the Notes to be repurchased on such date at the Fundamental Change Repurchase Price. Subject to receipt of funds and/or Notes by the Trustee (or other Paying Agent appointed by the Company), payment for Notes surrendered for repurchase (and not withdrawn) prior to the close of business on the Fundamental Change Repurchase Date will be made promptly after the later of (x) the Fundamental Change Repurchase Date with respect to such Note (provided the Holder has satisfied the conditions to the payment of the Fundamental Change Repurchase Price with respect in Section 9.02), and (y) the time of book-entry transfer or the delivery of such Note to the Trustee (or other Paying Agent appointed by the Company) by the Holder thereof in the manner required by Section 9.02 by mailing checks for the amount payable to the Holders of such Notes)Notes entitled thereto as they shall appear in the Security Register, provided, however, that payments to the Depositary shall be made by wire transfer of immediately available funds to the account of the Depositary or its nominee. The Paying Agent or Tender AgentTrustee shall, as promptly after such payment and upon written demand by the case may beCompany, will promptly return to the respective Holders thereof Company any Physical Notes held by it during the acceleration of the Notes (except funds in the case of an acceleration resulting from a Default by the Company in the payment excess of the Fundamental Change Repurchase Price with respect Price.
(e) If the Trustee (or other Paying Agent appointed by the Company) holds money or securities sufficient to repurchase on the Fundamental Change Repurchase Date all the Notes or portions thereof that are to be purchased as of the second Business Day following the Fundamental Change Repurchase Date, then on and after the Fundamental Change Repurchase Date (i) such Notes will cease to be Outstanding, (ii) interest will cease to accrue on such Notes), and (iii) all other rights of the Holders of such Notes will terminate, whether or any instructions for not book-entry transfer of the Notes in compliance with has been made or the procedures of the Depositary shall be deemed to Notes have been cancelleddelivered to the Trustee or Paying Agent, and, upon such return or cancellation, as other than the case may be, right to receive the Fundamental Change Repurchase Notice with respect thereto shall be deemed to have been withdrawnPrice upon delivery of the Notes.
Appears in 1 contract
Repurchase at Option of Holders Upon a Fundamental Change. (a) If a Fundamental Change occurs at any time prior to the Maturity Datetime, each Holder shall have the right, at such Holder’s option, to require the Company to repurchase for cash all of such Holder’s Notes, or any portion of the principal amount thereof that is equal to minimum denominations of $1,000 or an integral multiple of $1,000 in excess thereof1,000, on the date (the “Fundamental Change Repurchase Date”) specified by the Company that is not less than 20 calendar days Business Days or more than 35 calendar days Business Days following the date of the Fundamental Change Company Notice at a repurchase price equal to 100% of the principal amount thereof, plus accrued and unpaid interest thereon to, but excluding, the Fundamental Change Repurchase Date (the “Fundamental Change Repurchase Price”), unless the Fundamental Change Repurchase Date falls after a Regular Record Date but on or prior to the Interest Payment Date to which such Regular Record Date relates, in which case the Company shall instead pay the full amount of accrued and unpaid interest (to, but excluding, such Interest Payment Date) to Holders of record as of such Regular Record Date, and the Fundamental Change Repurchase Price shall be equal to 100% of the principal amount of Notes to be repurchased pursuant to this Article 15; provided that . The Fundamental Change Repurchase Date shall be subject to postponement in order to allow the Company shall not be required to repurchase, or to make an offer to repurchase, the Notes upon a Fundamental Change if a third party makes such an offer in the same manner, at the same time and otherwise in compliance comply with the requirements for an offer made by the Company as set forth in this Section 15.02 and such third party purchases all Notes properly surrendered and not validly withdrawn under its offer in the same manner, at the same time and otherwise in compliance with the requirements for an offer made by the Company as set forth in this Section 15.02applicable law.
(b) Repurchases of Notes under this Section 15.02 shall be made, at the option of the Holder thereof, upon:
(i) delivery to the Paying Agent or tender agent appointed to facilitate the repurchase (the “Tender Agent”) by a Holder of a duly completed notice (the “Fundamental Change Repurchase Notice”) in the form set forth in Attachment 2 to the Form of Note attached hereto as Exhibit A, if the Notes are Physical Notes, or in compliance with the Depositary’s procedures Applicable Procedures for surrendering interests in Global Notes, if the Notes are Global Notes, in each case on or before the close of business on the Business Day immediately preceding the Fundamental Change Repurchase Date; and
(ii) delivery of the Notes, if the Notes are Physical Notes, to the Paying Agent or Tender Agent, as the case may be, at any time after delivery of the Fundamental Change Repurchase Notice (together with all necessary endorsements for transfer) at the Corporate Trust Office office of the Paying Agent or the principal office of the Tender Agent located in the United States of America as notified by the Tender Agent to Holders and the Trustee, as applicableAgent, or book-entry transfer of the Notes, if the Notes are Global Notes, in compliance with the procedures of the Depositary, in each case such delivery being a condition to receipt by the Holder of the Fundamental Change Repurchase Price therefor. The Fundamental Change Repurchase Notice in respect of any Notes to be repurchased shall state:
(i) in the case of Physical Notes, the certificate numbers of the Notes to be delivered for repurchase;
(ii) the portion of the principal amount of Notes to be repurchased, which must be in minimum denominations of $1,000 or an integral multiple thereof; and
(iii) that the Notes are to be repurchased by the Company pursuant to the applicable provisions of the Notes and this Indenture; provided, however, that if the Notes are Global Notes, the Fundamental Change Repurchase Notice must comply with appropriate Depositary proceduresthe Applicable Procedures. Notwithstanding anything herein to the contrary, any Holder delivering to the Paying Agent or Tender Agent, as the case may be, the Fundamental Change Repurchase Notice contemplated by this Section 15.02 shall have the right to withdraw, in whole or in part, such Fundamental Change Repurchase Notice at any time prior to the close of business on the Business Day immediately preceding the Fundamental Change Repurchase Date by delivery of a written notice of withdrawal to the Paying Agent or Tender Agent, as the case may be, in accordance with Section 15.03, or in accordance with the customary procedures of the Depository with respect to Global Notes. The Paying Agent or Tender Agent, as the case may be, shall promptly notify the Company of the receipt by it of any Fundamental Change Repurchase Notice or written notice of withdrawal thereof.
(c) On or before the 20th Business Day after the occurrence of the effective date of a Fundamental Change, the Company shall provide to all Holders of Notes and Notes, the Trustee, the Conversion Agent (in the case of a Conversion Agent if other than the Trustee) and the Paying Agent (in the case of a Paying Agent other than the Trustee) a notice (the “Fundamental Change Company Notice”) of the occurrence of the effective date of the Fundamental Change and of the repurchase right at the option of the Holders arising as a result thereof. In the case of Physical Notes, such notice shall be by first class mail or, in the case of Global Notes, such notice shall be delivered in accordance with the applicable procedures Applicable Procedures of the Depositary. Simultaneously with providing such notice, the Company shall publish a notice containing the information set forth in the Fundamental Change Company Notice on the Company’s website or through such other public medium as the Company may use at that time. Each Fundamental Change Company Notice shall specify:
(i) the events causing the Fundamental Change;
(ii) the effective date of the Fundamental Change;
(iii) the last date on which a Holder may exercise the repurchase right pursuant to this Article 15;
(iv) the Fundamental Change Repurchase Price;
(v) the Fundamental Change Repurchase Date;
(vi) the name and address of the Paying Agent or Tender Agent, as the case may be, and the Conversion Agent, if applicable;
(vii) if applicable, the Conversion Rate and any adjustments to the Conversion Rate as a result of the Fundamental ChangeRate;
(viii) that the Notes with respect to which a Fundamental Change Repurchase Notice has been delivered by a Holder may be converted only if the Holder validly withdraws the Fundamental Change Repurchase Notice in accordance with the terms of this Indenture; and
(ix) the procedures that Holders must follow to require the Company to repurchase their Notes. No failure of the Company to give the foregoing notices and no defect therein shall limit the Holders’ repurchase rights or affect the validity of the proceedings for the repurchase of the Notes pursuant to this Section 15.02. At the Company’s request, given at least five days prior to the date the Fundamental Change Company Notice is to be sent (or such shorter period as may be agreed to by the Trustee), the Trustee Paying Agent shall give such notice in the Company’s name and at the Company’s expense; provided, however, that, in all cases, the text of such Fundamental Change Company Notice shall be prepared by the Company.
(d) Notwithstanding the foregoing, no Notes may be repurchased by the Company on any date at the option of the Holders upon in connection with a Fundamental Change if the principal amount of the Notes has been accelerated, and such acceleration has not been rescinded, on or prior to such date (except in the case of an acceleration resulting from a Default by the Company in the payment of the Fundamental Change Repurchase Price with respect to such Notes). The Paying Agent or Tender Agent, as the case may be, will promptly return to the respective Holders thereof any Physical Notes held by it during the acceleration of the Notes (except in the case of an acceleration resulting from a Default by the Company in the payment of the Fundamental Change Repurchase Price with respect to such Notes), or any instructions for book-entry transfer of the Notes in compliance with the procedures of the Depositary Applicable Procedures shall be deemed to have been cancelled, and, upon such return or cancellation, as the case may be, the Fundamental Change Repurchase Notice with respect thereto shall be deemed to have been withdrawn.
(e) Notwithstanding anything to the contrary in this Indenture, the Company shall not be required to repurchase, or to make an offer to repurchase, the Notes upon a Fundamental Change if a third party makes such an offer in the same manner, at the same time and otherwise in compliance with the requirements for an offer made by the Company as set forth in this Article 15, and such third party purchases all Notes properly surrendered and not validly withdrawn under its offer in the same manner, at the same time and otherwise in compliance with the requirements for an offer made by the Company as set forth in this Article 15.
(f) For purposes of this Article 15, the Paying Agent may be any agent, depositary, tender agent, paying agent or other agent appointed by the Company to accomplish the purposes set forth herein.
Appears in 1 contract
Samples: Indenture (Okta, Inc.)
Repurchase at Option of Holders Upon a Fundamental Change. (a) .
(a) If a Fundamental Change occurs at any time prior to the Maturity Datetime, each Holder shall have the right, at such Holder’s option, to require the Company to repurchase for cash all of such Holder’s Notes, or any portion of the principal amount thereof that is equal to minimum denominations of $1,000 or an integral multiple of $1,000 in excess thereof1,000, on the date (the “Fundamental Change Repurchase Date”) specified by the Company that is not less than 20 calendar days Business Days or more than 35 calendar days Business Days following the date of the Fundamental Change Company Notice at a repurchase price equal to 100% of the principal amount thereof, plus any accrued and unpaid interest Special Interest thereon to, but excluding, the Fundamental Change Repurchase Date (the “Fundamental Change Repurchase Price”), unless the Fundamental Change Repurchase Date falls after a Regular Special Interest Record Date but on or prior to the Special Interest Payment Date to which such Regular Special Interest Record Date relates, in which case the Company shall instead pay the full amount of any accrued and unpaid interest Special Interest (to, but excluding, such Special Interest Payment Date) to Holders of record as of such Regular Special Interest Record Date, and the Fundamental Change Repurchase Price shall be equal to 100% of the principal amount of Notes to be repurchased pursuant to this Article 15; provided that . The Fundamental Change Repurchase Date shall be subject to postponement in order to allow the Company shall not be required to repurchase, or to make an offer to repurchase, the Notes upon a Fundamental Change if a third party makes such an offer in the same manner, at the same time and otherwise in compliance comply with the requirements for an offer made by the Company as set forth in this Section 15.02 and such third party purchases all Notes properly surrendered and not validly withdrawn under its offer in the same manner, at the same time and otherwise in compliance with the requirements for an offer made by the Company as set forth in this Section 15.02applicable law.
(b) Repurchases of Notes under this Section 15.02 shall be made, at the option of the Holder thereof, upon:
(i) delivery to the Paying Agent or tender agent appointed to facilitate the repurchase (the “Tender Agent”) by a Holder of a duly completed notice (the “Fundamental Change Repurchase Notice”) in the form set forth in Attachment 2 to the Form of Note attached hereto as Exhibit A, if the Notes are Physical Notes, or in compliance with the Depositary’s procedures Applicable Procedures for surrendering interests in Global Notes, if the Notes are Global Notes, in each case on or before the close of business on the Business Day immediately preceding the Fundamental Change Repurchase Date; and
(ii) delivery of the Notes, if the Notes are Physical Notes, to the Paying Agent or Tender Agent, as the case may be, at any time after delivery of the Fundamental Change Repurchase Notice (together with all necessary endorsements for transfer) at the Corporate Trust Office office of the Paying Agent or the principal office of the Tender Agent located in the United States of America as notified by the Tender Agent to Holders and the Trustee, as applicableAgent, or book-entry transfer of the Notes, if the Notes are Global Notes, in compliance with the procedures of the DepositaryApplicable Procedures, in each case such delivery being a condition to receipt by the Holder of the Fundamental Change Repurchase Price therefor. The Fundamental Change Repurchase Notice in respect of any Notes to be repurchased shall state:
(i) in the case of Physical Notes, the certificate numbers of the Notes to be delivered for repurchase;
(ii) the portion of the principal amount of Notes to be repurchased, which must be in minimum denominations of $1,000 or an integral multiple thereof; and
(iii) that the Notes are to be repurchased by the Company pursuant to the applicable provisions of the Notes and this Indenture; provided, however, that if the Notes are Global Notes, the Fundamental Change Repurchase Notice must comply with appropriate Depositary proceduresthe Applicable Procedures. Notwithstanding anything herein to the contrary, any Holder delivering to the Paying Agent or Tender Agent, as the case may be, the Fundamental Change Repurchase Notice contemplated by this Section 15.02 shall have the right to withdraw, in whole or in part, such Fundamental Change Repurchase Notice at any time prior to the close of business on the Business Day immediately preceding the Fundamental Change Repurchase Date by delivery of a written notice of withdrawal to the Paying Agent or Tender Agent, as the case may be, in accordance with Section 15.03, or in accordance with the customary procedures of the Depository with respect to Global Notes. The Paying Agent or Tender Agent, as the case may be, shall promptly notify the Company of the receipt by it of any Fundamental Change Repurchase Notice or written notice of withdrawal thereof.
(c) On or before the 20th Business Day after the occurrence of the effective date of a Fundamental Change, the Company shall provide to all Holders of Notes and Notes, the Trustee, the Conversion Agent (in the case of a Conversion Agent if other than the Trustee) and the Paying Agent (in the case of a Paying Agent other than the Trustee) a written notice (the “Fundamental Change Company Notice”) of the occurrence of the effective date of the Fundamental Change and of the repurchase right at the option of the Holders arising as a result thereof. In the case of Physical Notes, such notice shall be by first class mail or, in the case of Global Notes, such notice shall be delivered in accordance with the applicable procedures Applicable Procedures of the Depositary. Simultaneously with providing such notice, the Company shall publish a notice containing the information set forth in the Fundamental Change Company Notice on the Company’s website or through such other public medium as the Company may use at that time. Each Fundamental Change Company Notice shall specify:
(i) the events causing the Fundamental Change;
(ii) the effective date of the Fundamental Change;
(iii) the last date on which a Holder may exercise the repurchase right pursuant to this Article 15;
(iv) the Fundamental Change Repurchase Price;
(v) the Fundamental Change Repurchase Date;
(vi) the name and address of the Paying Agent or Tender Agent, as the case may be, and the Conversion Agent, if applicable;
(vii) if applicable, the Conversion Rate and any adjustments to the Conversion Rate as a result of the Fundamental ChangeRate;
(viii) that the Notes with respect to which a Fundamental Change Repurchase Notice has been delivered by a Holder may be converted only if the Holder validly withdraws the Fundamental Change Repurchase Notice in accordance with the terms of this Indenture; and
(ix) the procedures that Holders must follow to require the Company to repurchase their Notes. No failure of the Company to give the foregoing notices and no defect therein shall limit the Holders’ repurchase rights or affect the validity of the proceedings for the repurchase of the Notes pursuant to this Section 15.02. At the Company’s request, given at least five days prior to the date the Fundamental Change Company Notice is to be sent to the Holders (or such shorter period as may be agreed to by the Trustee), Paying Agent) the Trustee Paying Agent shall give such notice in the Company’s name and at the Company’s expense; provided, however, that, in all cases, the text of such Fundamental Change Company Notice shall be prepared by the Company.
(d) Notwithstanding the foregoing, no Notes may be repurchased by the Company on any date at the option of the Holders upon in connection with a Fundamental Change if the principal amount of the Notes has been accelerated, and such acceleration has not been rescinded, on or prior to such date (except in the case of an acceleration resulting from a Default by the Company in the payment of the Fundamental Change Repurchase Price with respect to such Notes). The Paying Agent or Tender Agent, as the case may be, will promptly return to the respective Holders thereof any Physical Notes held by it during the acceleration of the Notes (except in the case of an acceleration resulting from a Default by the Company in the payment of the Fundamental Change Repurchase Price with respect to such Notes), or any instructions for book-entry transfer of the Notes in compliance with the procedures of the Depositary Applicable Procedures shall be deemed to have been cancelled, and, upon such return or cancellation, as the case may be, the Fundamental Change Repurchase Notice with respect thereto shall be deemed to have been withdrawn.
(e) Notwithstanding anything to the contrary in this Indenture, the Company shall not be required to repurchase, or to make an offer to repurchase, the Notes upon a Fundamental Change if a third party makes such an offer in the same manner, at the same time and otherwise in compliance with the requirements for an offer made by the Company as set forth in this Article 15, and such third party purchases all Notes properly surrendered and not validly withdrawn under its offer in the same manner, at the same time and otherwise in compliance with the requirements for an offer made by the Company as set forth in this Article 15.
(f) For purposes of this Article 15, the Paying Agent may be any agent, depositary, tender agent, paying agent or other agent appointed by the Company to accomplish the purposes set forth herein.
Appears in 1 contract
Samples: Indenture (Cloudflare, Inc.)
Repurchase at Option of Holders Upon a Fundamental Change. (a) If there shall occur a Fundamental Change occurs at any time prior to the Maturity Date, then each Holder of Notes shall have the right, at such Holder’s option, to require the Company to repurchase for cash all of such Holder’s NotesNotes for cash, or any portion of the principal amount thereof that is equal to minimum denominations of $1,000 or an integral multiple of $1,000 in excess thereof, on the date (the “Fundamental Change Repurchase Date”) specified by the Company that is not less than 20 calendar days or twenty (20) Business Days and not more than 35 calendar days following thirty-five (35) Business Days after the date of the Fundamental Change Company Notice at a repurchase price equal to 100% of the principal amount thereof, plus together with accrued and unpaid interest thereon to, but excluding, the Fundamental Change Repurchase Date (the “Fundamental Change Repurchase Price”), unless except as set forth in the next sentence. If such Fundamental Change Repurchase Date falls after a Regular Record Date but and on or prior to the corresponding Interest Payment Date to which such Regular Record Date relatesDate, in which case the Company shall instead pay the principal amount to the Holders surrendering the Notes for repurchase pursuant to this Section 3.01, and pay the full amount of accrued and unpaid interest (to, but excluding, payable on such Interest Payment Date) Date to Holders the Holder on the close of record as of such business on the corresponding Regular Record Date, and the Fundamental Change Repurchase Price shall be equal to 100% of the principal amount of Notes to be repurchased pursuant to this Article 15; provided that the Company shall not be required to repurchase, or to make an offer to repurchase, the Notes upon a Fundamental Change if a third party makes such an offer in the same manner, at the same time and otherwise in compliance with the requirements for an offer made by the Company as set forth in this Section 15.02 and such third party purchases all Notes properly surrendered and not validly withdrawn under its offer in the same manner, at the same time and otherwise in compliance with the requirements for an offer made by the Company as set forth in this Section 15.02.
(b) . Repurchases of Notes under this Section 15.02 3.01 shall be made, at the option of the Holder thereof, upon:
(i1) delivery to the Paying Agent or tender agent appointed to facilitate the repurchase (the “Tender Agent”) by a Holder of a duly completed notice (the “Fundamental Change Repurchase Notice”) in the form set forth in Attachment 2 on the reverse of the Note prior to the Form of Note attached hereto as Exhibit A, if the Notes are Physical Notes, or in compliance with the Depositary’s procedures for surrendering interests in Global Notes, if the Notes are Global Notes, in each case on or before the close of business on the Business Day immediately preceding the Fundamental Change Repurchase DateDate (the “Fundamental Change Repurchase Expiration Time”); and
(ii2) delivery or book-entry transfer of the Notes, if the Notes are Physical Notes, to the Paying Agent or Tender Agent, as the case may be, at any time after delivery of prior to the Fundamental Change Repurchase Notice Expiration Time (together with all necessary endorsements for transferendorsements) at the Corporate Trust Office of the Paying Agent or the principal office of the Tender Agent located in the United States of America as notified by the Tender Agent to Holders and the TrusteeAgent, as applicable, or book-entry transfer of the Notes, if the Notes are Global Notes, in compliance with the procedures of the Depositary, in each case such delivery being a condition to receipt by the Holder of the Fundamental Change Repurchase Price therefor; provided that such Fundamental Change Repurchase Price shall be so paid pursuant to this Section 3.01 only if the Note so delivered to the Paying Agent shall conform in all respects to the description thereof in the related Fundamental Change Repurchase Notice. The Fundamental Change Repurchase Notice in respect of any Notes to be repurchased shall state:
(i) in the case of Physical Notes, the certificate numbers numbers, if any, of the Notes to be delivered tendered for repurchase, or the information required by the procedures of the Depositary if the Notes in respect of which such Fundamental Change Repurchase Notice is being submitted is represented by a Global Note;
(ii) the portion of the principal amount of the Notes to be repurchased, which must be $1,000 or an integral multiple thereof; and
(iii) that the Notes are to be repurchased by the Company pursuant to the applicable provisions of the Notes and this the Indenture; provided, however, that if . Any purchase by the Notes are Global Notes, the Fundamental Change Repurchase Notice must comply with appropriate Depositary procedures. Notwithstanding anything herein Company contemplated pursuant to the contrary, any Holder delivering to the Paying Agent or Tender Agent, as the case may be, the Fundamental Change Repurchase Notice contemplated by provisions of this Section 15.02 3.01 shall have be consummated by the right delivery of the consideration to withdraw, in whole or in part, such Fundamental Change Repurchase Notice at any time prior to be received by the close Holder promptly following the later of business on the Business Day immediately preceding the Fundamental Change Repurchase Date by delivery of a written notice of withdrawal to and the Paying Agent or Tender Agent, as the case may be, in accordance with Section 15.03, or in accordance with the customary procedures time of the Depository with respect to Global Notes. The Paying Agent or Tender Agent, as the case may be, shall promptly notify the Company of the receipt by it of any Fundamental Change Repurchase Notice or written notice of withdrawal thereof.
(c) On or before the 20th Business Day after the occurrence of the effective date of a Fundamental Change, the Company shall provide to all Holders of Notes and the Trustee, the Conversion Agent (in the case of a Conversion Agent other than the Trustee) and the Paying Agent (in the case of a Paying Agent other than the Trustee) a notice (the “Fundamental Change Company Notice”) of the occurrence of the effective date of the Fundamental Change and of the repurchase right at the option of the Holders arising as a result thereof. In the case of Physical Notes, such notice shall be by first class mail or, in the case of Global Notes, such notice shall be delivered in accordance with the applicable procedures of the Depositary. Simultaneously with providing such notice, the Company shall publish a notice containing the information set forth in the Fundamental Change Company Notice on the Company’s website or through such other public medium as the Company may use at that time. Each Fundamental Change Company Notice shall specify:
(i) the events causing the Fundamental Change;
(ii) the effective date of the Fundamental Change;
(iii) the last date on which a Holder may exercise the repurchase right pursuant to this Article 15;
(iv) the Fundamental Change Repurchase Price;
(v) the Fundamental Change Repurchase Date;
(vi) the name and address of the Paying Agent or Tender Agent, as the case may be, and the Conversion Agent, if applicable;
(vii) if applicable, the Conversion Rate and any adjustments to the Conversion Rate as a result of the Fundamental Change;
(viii) that the Notes with respect to which a Fundamental Change Repurchase Notice has been delivered by a Holder may be converted only if the Holder validly withdraws the Fundamental Change Repurchase Notice in accordance with the terms of this Indenture; and
(ix) the procedures that Holders must follow to require the Company to repurchase their Notes. No failure of the Company to give the foregoing notices and no defect therein shall limit the Holders’ repurchase rights or affect the validity of the proceedings for the repurchase of the Notes pursuant to this Section 15.02. At the Company’s request, given at least five days prior to the date the Fundamental Change Company Notice is to be sent (or such shorter period as may be agreed to by the Trustee), the Trustee shall give such notice in the Company’s name and at the Company’s expense; provided, however, that, in all cases, the text of such Fundamental Change Company Notice shall be prepared by the Company.
(d) Notwithstanding the foregoing, no Notes may be repurchased by the Company on any date at the option of the Holders upon a Fundamental Change if the principal amount of the Notes has been accelerated, and such acceleration has not been rescinded, on or prior to such date (except in the case of an acceleration resulting from a Default by the Company in the payment of the Fundamental Change Repurchase Price with respect to such Notes). The Paying Agent or Tender Agent, as the case may be, will promptly return to the respective Holders thereof any Physical Notes held by it during the acceleration of the Notes (except in the case of an acceleration resulting from a Default by the Company in the payment of the Fundamental Change Repurchase Price with respect to such Notes), or any instructions for book-entry transfer or delivery of the Notes. All questions as to the validity, eligibility (including time of receipt) and acceptance of any Notes in compliance with the procedures of the Depositary for repurchase shall be deemed to have been cancelleddetermined by the Company, and, upon such return or cancellation, as the case may be, the Fundamental Change Repurchase Notice with respect thereto whose determination shall be deemed to have been withdrawnfinal and binding absent manifest error.
Appears in 1 contract
Samples: Third Supplemental Indenture (Standard Pacific Corp /De/)
Repurchase at Option of Holders Upon a Fundamental Change. (a) If a Fundamental Change occurs at any time prior to the Maturity Datetime, then each Holder Noteholder shall have the right, at such Holderholder’s option, to require the Company to repurchase for cash all of such Holderholder’s Notes, Notes or any portion thereof that is equal to minimum denominations of $1,000 or an integral a multiple of $1,000 in excess thereofprincipal amount, for cash on the date (the “Fundamental Change Repurchase Date”) specified by the Company that is not less than 20 calendar days or twenty (20) Business Days and not more than 35 calendar days following thirty five (35) Business Days after the date of the Fundamental Change Company Notice (as defined below) at a repurchase price equal to 100% of the principal amount thereof, plus together with accrued and unpaid interest interest, including unpaid Additional Interest, if any, thereon to, but excluding, the Fundamental Change Repurchase Date (the “Fundamental Change Repurchase Price”), unless the . If such Fundamental Change Repurchase Date falls after a Regular Record Date but record date for the payment of interest or Additional Interest and on or prior to the corresponding Interest Payment Date to which such Regular Record Date relatesDate, in which case the Company shall instead pay the full amount of accrued and unpaid interest (tointerest, but excludingincluding accrued and unpaid Additional Interest, if any, payable on such Interest Payment Date) Date to Holders the holder of record as on the close of such Regular Record Datebusiness on the corresponding record date. Notwithstanding the foregoing, and a Noteholder shall not have the Fundamental Change Repurchase Price shall be equal right to 100% of the principal amount of Notes to be repurchased pursuant to this Article 15; provided that require the Company shall not be required to repurchase, or to make an offer to repurchase, the repurchase its Notes upon a Fundamental Change if a third party makes such an offer in the same manner, at the same time and otherwise in compliance with the requirements for an offer made by the Company as set forth in this Section 15.02 and such third party purchases all Notes properly surrendered and not validly withdrawn under its offer clause (ii) of the definition thereof where the consideration (excluding cash payments for fractional shares) in the same manner, at transaction or event constituting the same time and otherwise Fundamental Change consists solely of securities that are traded on a national securities exchange or quoted on the Nasdaq National Market or will be so traded or quoted when issued in compliance connection with the requirements for an offer made by the Company as set forth in this Section 15.02.
(b) such Fundamental Change. Repurchases of Notes under this Section 15.02 16.02 shall be made, at the option of the Holder holder thereof, upon:
(i) delivery to the Trustee (or other Paying Agent or tender agent appointed to facilitate by the repurchase (the “Tender Agent”Company) by a Holder holder of a duly completed notice (the “Fundamental Change Repurchase Notice”) in the form set forth in Attachment 2 on the reverse of the Note prior to the Form of Note attached hereto as Exhibit A, if the Notes are Physical Notes, or in compliance with the Depositary’s procedures for surrendering interests in Global Notes, if the Notes are Global Notes, in each case on or before the close of business on the Business Day immediately preceding the Fundamental Change Repurchase Date; and
(ii) delivery or book-entry transfer of the Notes, if the Notes are Physical Notes, to the Trustee (or other Paying Agent or Tender Agent, as appointed by the case may be, Company) at any time after delivery of the Fundamental Change Repurchase Notice (together with all necessary endorsements for transferendorsements) at the Corporate Trust Office of the Trustee (or other Paying Agent or appointed by the principal office of the Tender Agent located Company) in the United States Borough of America as notified by the Tender Agent to Holders and the TrusteeManhattan, as applicable, or book-entry transfer of the Notes, if the Notes are Global Notes, in compliance with the procedures of the Depositary, in each case such delivery being a condition to receipt by the Holder holder of the Fundamental Change Repurchase Price therefor; provided that such Fundamental Change Repurchase Price shall be so paid pursuant to this Section 16.02 only if the Note so delivered to the Trustee (or other Paying Agent appointed by the Company) shall conform in all respects to the description thereof in the related Fundamental Change Repurchase Notice. The Fundamental Change Repurchase Notice in respect of any Notes to be repurchased shall state:
(iA) in the case of Physical Notesif certificated, the certificate numbers of the Notes to be delivered for repurchase;
(iiB) the portion of the principal amount of Notes to be repurchased, which must be $1,000 or an integral multiple thereof; and
(iiiC) that the Notes are to be repurchased by the Company pursuant to the applicable provisions of the Notes and the Indenture. Any purchase by the Company contemplated pursuant to the provisions of this Indenture; provided, however, that if Section 16.02 shall be consummated by the Notes are Global Notes, delivery of the consideration to be received by the holder promptly following the later of the Fundamental Change Repurchase Notice must comply with appropriate Depositary proceduresDate and the time of the book-entry transfer or delivery of the Note. Notwithstanding anything herein to the contrary, any Holder holder delivering to the Trustee (or other Paying Agent or Tender Agent, as appointed by the case may be, Company) the Fundamental Change Repurchase Notice contemplated by this Section 15.02 16.02 shall have the right to withdraw, in whole or in part, withdraw such Fundamental Change Repurchase Notice at any time prior to the close of business on the Business Day immediately preceding prior to the Fundamental Change Repurchase Date by delivery of a written notice of withdrawal to the Trustee (or other Paying Agent or Tender Agent, as appointed by the case may be, Company) in accordance with Section 15.03, or in accordance with the customary procedures of the Depository with respect to Global Notes16.03 below. The Trustee (or other Paying Agent or Tender Agent, as appointed by the case may be, Company) shall promptly notify the Company of the receipt by it of any Fundamental Change Repurchase Notice or written notice of withdrawal thereof. Any Note that is to be repurchased only in part shall be surrendered to the Trustee (with, if the Company or the Trustee so requires, due endorsement by, or a written instrument of transfer in form satisfactory to the Company and the Trustee duly executed by the Holder thereof or his attorney duly authorized in writing), and the Company shall execute, and the Trustee shall authenticate and make available for delivery to the holder of such Note without service charge, a new Note or Notes, containing identical terms and conditions, each in an authorized denomination in aggregate principal amount equal to and in exchange for the unrepurchased portion of the principal of the Note so surrendered.
(cb) On or before the 20th Business Day twentieth day after the occurrence of the effective date of a Fundamental Change, the Company shall provide to all Holders holders of record of the Notes and the Trustee, the Conversion Agent (in the case of a Conversion Agent other than the Trustee) Trustee and the Paying Agent (in the case of a Paying Agent other than the Trustee) a notice (the “Fundamental Change Company Notice”) of the occurrence of the effective date of the such Fundamental Change and of the repurchase right at the option of the Holders holders arising as a result thereof. In the case of Physical Notes, such notice Such mailing shall be by first class mail or, in the case of Global Notes, such notice shall be delivered in accordance with the applicable procedures of the Depositarymail. Simultaneously with providing such noticeFundamental Change Company Notice, the Company shall publish a notice containing the information set forth included therein once in the Fundamental Change Company Notice a newspaper of general circulation in The City of New York or publish such information on the Company’s website or through such other public medium as the Company may use at that such time. Each Fundamental Change Company Notice shall specify:
(i) the events causing the Fundamental Change;
(ii) the effective date of the Fundamental Change;
(iii) the last date on which a Holder holder may exercise the repurchase right pursuant to this Article 15right;
(iv) the Fundamental Change Repurchase Price;
(v) the Fundamental Change Repurchase Date;
(vi) the name and address of the Paying Agent or Tender Agent, as the case may be, and the Conversion Agent, if applicable;
(viivi) if applicable, the applicable Conversion Rate and any adjustments to the applicable Conversion Rate as a result of the Fundamental ChangeRate;
(viiivii) if applicable, that the Notes with respect to which a Fundamental Change Repurchase Notice has been delivered by a Holder holder may be converted only if the Holder validly holder withdraws the Fundamental Change Repurchase Notice in accordance with the terms of this the Indenture; and
(viii) that the holder must exercise the repurchase right on or prior to the close of business on the Fundamental Change Repurchase Date (the “Fundamental Change Expiration Time”);
(ix) that the holder shall have the right to withdraw any Notes surrendered prior to the Fundamental Change Expiration Time; and
(x) the procedures that Holders holders must follow to require the Company to repurchase their Notes. No failure of the Company to give the foregoing notices and no defect therein shall limit the HoldersNoteholders’ repurchase rights or affect the validity of the proceedings for the repurchase of the Notes pursuant to this Section 15.02. At the Company’s request, given at least five days prior to the date the Fundamental Change Company Notice is to be sent (or such shorter period as may be agreed to by the Trustee), the Trustee shall give such notice in the Company’s name and at the Company’s expense; provided, however, that, in all cases, the text of such Fundamental Change Company Notice shall be prepared by the Company16.02.
(d) Notwithstanding the foregoing, no Notes may be repurchased by the Company on any date at the option of the Holders upon a Fundamental Change if the principal amount of the Notes has been accelerated, and such acceleration has not been rescinded, on or prior to such date (except in the case of an acceleration resulting from a Default by the Company in the payment of the Fundamental Change Repurchase Price with respect to such Notes). The Paying Agent or Tender Agent, as the case may be, will promptly return to the respective Holders thereof any Physical Notes held by it during the acceleration of the Notes (except in the case of an acceleration resulting from a Default by the Company in the payment of the Fundamental Change Repurchase Price with respect to such Notes), or any instructions for book-entry transfer of the Notes in compliance with the procedures of the Depositary shall be deemed to have been cancelled, and, upon such return or cancellation, as the case may be, the Fundamental Change Repurchase Notice with respect thereto shall be deemed to have been withdrawn.
Appears in 1 contract
Samples: Indenture (Encore Capital Group Inc)
Repurchase at Option of Holders Upon a Fundamental Change. (a) If there shall occur a Fundamental Change occurs at any time prior to the Final Maturity Date, then each Holder shall have the right, at such Holder’s 's option, to require the Company to repurchase for cash all of such Holder’s Notes's Securities, or any portion thereof that is equal to minimum denominations of $1,000 or an integral multiple of $1,000 in excess thereofprincipal amount, on the a date (the “Fundamental Change Repurchase Date”) specified by the Company that is not "FUNDAMENTAL CHANGE REPURCHASE DATE"), which shall be no less than 20 calendar 30 days or nor more than 35 calendar 60 days following after the date of the Fundamental Change Company Notice Repurchase Notice, at a repurchase price equal to 100% of the principal amount thereofof the Securities, plus accrued and unpaid interest thereon tointerest, if any, to but excluding, excluding the Fundamental Change Repurchase Date (the “Fundamental Change Repurchase Price”"FUNDAMENTAL CHANGE REPURCHASE PRICE"), unless payable in Cash, plus a Make Whole Premium, if any, payable in Common Stock (or in the same form of consideration into which the Common Stock has been converted or exchanged into in connection with such Fundamental Change), determined as described in Article 4; provided that if the Fundamental Change Repurchase Date falls after a Regular an Interest Payment Record Date but and on or prior to before the corresponding Interest Payment Date, then the interest due on such Interest Payment Date shall be payable to which such Regular the Holders in whose name the Securities are registered at the close of business on the relevant Interest Payment Record Date relates, in which case the Company shall instead pay the full amount of accrued and unpaid interest (to, but excluding, such Interest Payment Date) to Holders of record as of such Regular Record Date, and the Fundamental Change Repurchase Price shall only be equal to 100% of the principal amount of Notes to be the Securities being repurchased pursuant to this Article 15; provided that (plus a Make Whole Premium, if any). Notwithstanding the foregoing, the Company shall may not be required to repurchase, or to make an offer to repurchase, repurchase the Notes Securities upon the occurrence of a Fundamental Change if a third party makes such an offer in the same manner, at principal amount of the same time and otherwise in compliance with the requirements for an offer made by the Company as set forth in this Section 15.02 Securities has been accelerated and such third party purchases all Notes properly surrendered and acceleration has not validly withdrawn under its offer in been rescinded on or prior to the same manner, at the same time and otherwise in compliance with the requirements for an offer made by the Company as set forth in this Section 15.02Fundamental Change Repurchase Date.
(b) Repurchases of Notes under this Section 15.02 shall be made, at Within 30 days after the option of the Holder thereof, upon:
(i) delivery to the Paying Agent or tender agent appointed to facilitate the repurchase (the “Tender Agent”) by a Holder occurrence of a duly completed Fundamental Change, the Company shall mail a written notice (the “Fundamental Change Repurchase Notice”) in the form set forth in Attachment 2 to the Form of Note attached hereto as Exhibit A, if the Notes are Physical Notes, or in compliance with the Depositary’s procedures for surrendering interests in Global Notes, if the Notes are Global Notes, in each case on or before the close of business on the Business Day immediately preceding the Fundamental Change Repurchase Date; and
(ii) delivery of the Notes, if the Notes are Physical Notes, to the Paying Agent or Tender Agent, as the case may be, at any time after delivery of the Fundamental Change Repurchase Notice by first class mail to the Trustee and to each Holder at such Holder's registered address (together with all necessary endorsements for transferand to beneficial owners as required by applicable law) at (the Corporate Trust Office of the Paying Agent or the principal office of the Tender Agent located in the United States of America as notified by the Tender Agent to Holders and the Trustee, as applicable, or book-entry transfer of the Notes, if the Notes are Global Notes, in compliance with the procedures of the Depositary, in each case such delivery being a condition to receipt by the Holder of the Fundamental Change Repurchase Price therefor"FUNDAMENTAL CHANGE NOTICE"). The Fundamental Change Notice shall include the form of Fundamental Change Repurchase Notice in respect of any Notes to be repurchased completed by the Holder in the event the Holder elects such right to repurchase and shall state:
(i) in the case date of Physical Notessuch Fundamental Change and, briefly, the certificate numbers terms and conditions of the Notes to be delivered for repurchasesuch Fundamental Change;
(ii) the portion of the principal amount of Notes to be repurchased, date by which must be $1,000 or an integral multiple thereof; and
(iii) that the Notes are to be repurchased by the Company pursuant to the applicable provisions of the Notes and this Indenture; provided, however, that if the Notes are Global Notes, the Fundamental Change Repurchase Notice pursuant to this Section 3.08 must comply with appropriate Depositary procedures. Notwithstanding anything herein be given;
(iii) the Fundamental Change Repurchase Date;
(iv) the Holder's right to require the Company to repurchase the Securities and the consideration to be paid therefor (including the Additional Premium, if any);
(v) briefly, the conversion rights of the Securities;
(vi) the then current Conversion Rate and Conversion Price;
(vii) that Securities as to which a Fundamental Change Repurchase Notice has been given may be converted only to the contrary, any Holder delivering to the Paying Agent or Tender Agent, as the case may be, extent that the Fundamental Change Repurchase Notice contemplated by has been withdrawn in accordance with the terms of this Indenture;
(viii) that the Holder must satisfy the requirements set forth in the Securities in order to convert the Securities;
(ix) the procedures required for exercise of the repurchase option upon the Fundamental Change pursuant to this Section 15.02 shall have 3.08;
(x) the right to withdraw, in whole or in part, such procedures for withdrawing a Fundamental Change Repurchase Notice, including a form of notice of withdrawal;
(xi) the name and address for the Paying Agent and the Conversion Agent; and
(xii) the CUSIP number, if any, printed on the Securities being repurchased. The Company shall cause a copy of the Fundamental Change Notice to be published in a newspaper of general circulation in the Borough of Manhattan, the City of New York, which newspaper shall be The Wall Street Journal, if still in circulation at such time.
(c) A Holder may exercise its right specified in Section 3.08(a) upon delivery of a properly completed written notice (which shall be in substantially the form as set forth on the reverse of the Security 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 each case in accordance with the Depositary's customary procedures) of the exercise of such rights (a "FUNDAMENTAL CHANGE REPURCHASE NOTICE") to the Paying Agent at any time prior to the close of business on the Business Day immediately preceding the Fundamental Change Repurchase Date, stating:
(i) the certificate number of the Security that the Holder will deliver to be repurchased or the appropriate Depositary procedures if Certificated Securities have not been issued;
(ii) the portion of the principal amount of the Securities that the Holder will deliver to be repurchased, which portion must be $1,000 or an integral multiple of $1,000; and
(iii) that such Securities shall be repurchased on the Fundamental Change Repurchase Date by pursuant to the terms and conditions specified in the Securities and this Indenture. The delivery of such Security (other than a written notice of withdrawal Global Security) to the Paying Agent or Tender Agent, as the case may be, in accordance with Section 15.03with, or in accordance at any time after delivery of, the Fundamental Change Notice (together with all necessary endorsements) at the customary procedures offices of the Depository with respect to Global Notes. The Paying Agent or Tender Agentshall be a condition to the receipt by the Holder of the Fundamental Change Repurchase Price and Make Whole Premium, as the case may beif any, therefor. A Paying Agent shall promptly notify the Company of the receipt by it of any Fundamental Change Repurchase Notice or written notice of withdrawal thereofNotice. If the Securities are not in certificated form, Holders must deliver their Securities in accordance with the Applicable Procedures.
(cd) On or before the 20th Business Day after the occurrence of the effective date of a Fundamental Change, the Company shall provide to all Holders of Notes and the Trustee, the Conversion Agent (in the case of a Conversion Agent other than the Trustee) and Upon receipt by the Paying Agent (in the case of a Paying Agent other than the Trustee) a notice (the “Fundamental Change Company Notice”) of the occurrence of the effective date of the Fundamental Change and Repurchase Notice, duly completed, specified in Section 3.08(c), the Holder of the repurchase right at the option Securities in respect of the Holders arising which such Fundamental Change Repurchase Notice was given shall (unless such Fundamental Change Repurchase Notice is withdrawn as a result thereof. In the case of Physical Notes, such notice shall specified below) thereafter be by first class mail or, in the case of Global Notes, such notice shall be delivered in accordance with the applicable procedures of the Depositary. Simultaneously with providing such notice, the Company shall publish a notice containing the information set forth in entitled to receive the Fundamental Change Company Notice on Repurchase Price and the Company’s website or through Make Whole Premium, if any, with respect to such other public medium as the Company may use at that timeSecurity. Each Such Fundamental Change Company Notice Repurchase Price and such Make Whole Premium, if any, shall specify:
be paid to such Holder promptly following the later of (i) the events causing the Fundamental Change;
(ii) the effective date of the Fundamental Change;
(iii) the last date on which a Holder may exercise the repurchase right pursuant to this Article 15;
(iv) the Fundamental Change Repurchase Price;
(v) the Fundamental Change Repurchase Date;
(vi) the name and address of the Paying Agent or Tender Agent, as the case may be, and the Conversion Agent, if applicable;
(vii) if applicable, the Conversion Rate and any adjustments to the Conversion Rate as a result of the Fundamental Change;
(viii) that the Notes Date with respect to such Security (provided the conditions in Section 3.08(c) have been satisfied) and (ii) the time of delivery of such Security to a Paying Agent by the Holder thereof in the manner required by Section 3.08(c). Securities in respect of which a Fundamental Change Repurchase Notice has been given by the Holder thereof may not be converted pursuant to Article 5 on or after the date of the delivery of such Fundamental Change Repurchase Notice unless such Fundamental Change Repurchase Notice has first been validly withdrawn as specified in Section 3.08(e).
(e) A Fundamental Change Repurchase Notice may be withdrawn in whole or in a portion thereof that is a principal amount of $1,000 or an integral multiple thereof by means of a written notice (which may be delivered by a Holder mail, overnight courier, hand delivery, facsimile transmission or in any other written form and, in the case of Global Securities, may be converted only if delivered electronically or by other means in each case in accordance with the Holder validly withdraws Applicable Procedures) of withdrawal delivered to the office of the Paying Agent at any time prior to the close of business on the Business Day preceding the Fundamental Change Repurchase Notice in accordance with the terms of this Indenture; andDate, specifying:
(ixi) the procedures that Holders must follow to require certificate number, if any, or the Company to repurchase their Notes. No failure appropriate Depositary procedures, if applicable, or the Security in respect of the Company to give the foregoing notices and no defect therein shall limit the Holders’ repurchase rights or affect the validity of the proceedings for the repurchase of the Notes pursuant to this Section 15.02. At the Company’s request, given at least five days prior to the date the Fundamental Change Company Notice is to be sent (or such shorter period as may be agreed to by the Trustee), the Trustee shall give which such notice in the Company’s name and at the Company’s expense; provided, however, that, in all cases, the text of such Fundamental Change Company Notice shall be prepared by the Company.withdrawal is being submitted;
(dii) Notwithstanding the foregoing, no Notes may be repurchased by the Company on any date at the option of the Holders upon a Fundamental Change if the principal amount of the Notes has been accelerated, and such acceleration has not been rescinded, on or prior to such date (except in the case of an acceleration resulting from a Default by the Company in the payment of the Fundamental Change Repurchase Price Security with respect to which such Notes). The Paying Agent or Tender Agentnotice of withdrawal is being submitted; and
(iii) the principal amount, as the case may beif any, will promptly return of such Security that remains subject to the respective Holders thereof any Physical Notes held by it during the acceleration of the Notes (except in the case of an acceleration resulting from a Default by the Company in the payment of the Fundamental Change Repurchase Price with respect to such Notes), or any instructions for book-entry transfer of the Notes in compliance with the procedures of the Depositary shall be deemed to have been cancelled, and, upon such return or cancellation, as the case may be, the original Fundamental Change Repurchase Notice with respect thereto shall and that has been or will be deemed to have been withdrawndelivered for repurchase by the Company.
Appears in 1 contract
Samples: Indenture (Century Aluminum Co)
Repurchase at Option of Holders Upon a Fundamental Change. (a) If a Fundamental Change occurs at any time prior to the Maturity Date, each Holder shall have the right, at such Holder’s option, to require the Company to repurchase for cash all of such Holder’s Notes, or any portion thereof properly surrendered and not validly withdrawn pursuant to Section 15.03 that is equal to minimum denominations of $1,000 or an integral a multiple of $1,000 in excess thereof1,000, on the date (the “Fundamental Change Repurchase Date”) specified by the Company that is not less than 20 calendar days or more than 35 calendar days following the date of the Fundamental Change Company Notice at a repurchase price equal to 100% of the principal amount thereof, plus accrued and unpaid interest interest, if any, thereon to, but excluding, the Fundamental Change Repurchase Date (the “Fundamental Change Repurchase Price”), unless the Fundamental Change Repurchase Date falls after a Regular Record Date but on or prior to the Interest Payment Date to which such Regular Record Date relates, in which case the Company shall instead pay the full amount of accrued and unpaid interest (to, but excluding, such Interest Payment Date) to Holders of record as of the close of business on such Regular Record Date, and the Fundamental Change Repurchase Price shall be equal to 100% of the principal amount of Notes to be repurchased pursuant to this Article 15; provided that . The Fundamental Change Repurchase Date shall be subject to postponement, without penalty to the Company, in order to allow the Company shall not be required to repurchase, or comply with applicable law as a result of any changes to make an offer to repurchase, such applicable law occurring after the Notes upon a Fundamental Change if a third party makes such an offer in the same manner, at the same time and otherwise in compliance with the requirements for an offer made by the Company as set forth in date of this Section 15.02 and such third party purchases all Notes properly surrendered and not validly withdrawn under its offer in the same manner, at the same time and otherwise in compliance with the requirements for an offer made by the Company as set forth in this Section 15.02Indenture.
(b) Repurchases of Notes under this Section 15.02 shall be made, at the option of the Holder thereof, upon:
(i) delivery to the Paying Agent or tender agent appointed to facilitate the repurchase (the “Tender Agent”) by a Holder of a duly completed notice (the “Fundamental Change Repurchase Notice”) in the form set forth in Attachment 2 to the Form of Note attached hereto as Exhibit A, if the Notes are Physical Notes, or in compliance with the Depositary’s procedures for surrendering interests in Global Notes, if the Notes are Global Notes, in each case on or before the close of business on the Business Day immediately preceding the Fundamental Change Repurchase Date; and
and (ii) delivery of the Notes, if the Notes are Physical Notes, to the Paying Agent or Tender Agent, as the case may be, at any time after delivery of the Fundamental Change Repurchase Notice (together with all necessary endorsements for transfer) at the Corporate Trust Office of the Paying Agent or the principal office of the Tender Agent located in the United States of America as notified by the Tender Agent to Holders and the Trustee, as applicableAgent, or book-entry transfer of the Notes, if the Notes are Global Notes, in compliance with the procedures of the Depositary, in each case such delivery being a condition to receipt by the Holder of the Fundamental Change Repurchase Price therefor. The Fundamental Change Repurchase Notice in respect of any Notes to be repurchased shall state:
(i) in the case of Physical Notes, the certificate numbers of the Notes to be delivered for repurchase;
(ii) the portion of the principal amount of Notes to be repurchased, which must be $1,000 or an integral multiple thereof; and
(iii) that the Notes are to be repurchased by the Company pursuant to the applicable provisions of the Notes and this Indenture; provided, however, that if the Notes are Global Notes, the Fundamental Change Repurchase Notice must comply with appropriate Depositary procedures. Notwithstanding anything herein to the contrary, any Holder delivering to the Paying Agent or Tender Agent, as the case may be, the Fundamental Change Repurchase Notice contemplated by this Section 15.02 shall have the right to withdraw, in whole or in part, such Fundamental Change Repurchase Notice at any time prior to the close of business on the Business Day immediately preceding the Fundamental Change Repurchase Date by delivery of a written notice of withdrawal to the Paying Agent or Tender Agent, as the case may be, in accordance with Section 15.03, or in accordance with the customary procedures of the Depository with respect to Global Notes. The Paying Agent or Tender Agent, as the case may be, shall promptly notify the Company of the receipt by it of any Fundamental Change Repurchase Notice or written notice of withdrawal thereof.
(c) On or before the 20th Business Day after the occurrence of the effective date of a Fundamental Change, the Company shall provide to all Holders of Notes and the Trustee, the Conversion Agent (in the case of a Conversion Agent other than the Trustee) and the Paying Agent (in the case of a Paying Agent other than the Trustee) a notice (the “Fundamental Change Company Notice”) of the occurrence of the effective date of the Fundamental Change and of the repurchase right at the option of the Holders arising as a result thereof. In the case of Physical Notes, such notice shall be by first class mail or, in the case of Global Notes, such notice shall be delivered in accordance with the applicable procedures of the Depositary. Simultaneously with providing such notice, the Company shall publish a notice containing the information set forth in the Fundamental Change Company Notice on the Company’s website or through such other public medium as the Company may use at that time. Each Fundamental Change Company Notice shall specify:
(i) the events causing the Fundamental Change;
(ii) the effective date of the Fundamental Change;
(iii) the last date on which a Holder may exercise the repurchase right pursuant to this Article 15;
(iv) the Fundamental Change Repurchase Price;
(v) the Fundamental Change Repurchase Date;
(vi) the name and address of the Paying Agent or Tender Agent, as the case may be, and the Conversion Agent, if applicable;
(vii) if applicable, the Conversion Rate and any adjustments to the Conversion Rate as a result of the Fundamental Change;
(viii) that the Notes with respect to which a Fundamental Change Repurchase Notice has been delivered by a Holder may be converted only if the Holder validly withdraws the Fundamental Change Repurchase Notice in accordance with the terms of this Indenture; and
(ix) the procedures that Holders must follow to require the Company to repurchase their Notes. No failure of the Company to give the foregoing notices and no defect therein shall limit the Holders’ repurchase rights or affect the validity of the proceedings for the repurchase of the Notes pursuant to this Section 15.02. At the Company’s request, given at least five days prior to the date the Fundamental Change Company Notice is to be sent (or such shorter period as may be agreed to by the Trustee), the Trustee shall give such notice in the Company’s name and at the Company’s expense; provided, however, that, in all cases, the text of such Fundamental Change Company Notice shall be prepared by the Company.
(d) Notwithstanding the foregoing, no Notes may be repurchased by the Company on any date at the option of the Holders upon a Fundamental Change if the principal amount of the Notes has been accelerated, and such acceleration has not been rescinded, on or prior to such date (except in the case of an acceleration resulting from a Default by the Company in the payment of the Fundamental Change Repurchase Price with respect to such Notes). The Paying Agent or Tender Agent, as the case may be, will promptly return to the respective Holders thereof any Physical Notes held by it during the acceleration of the Notes (except in the case of an acceleration resulting from a Default by the Company in the payment of the Fundamental Change Repurchase Price with respect to such Notes), or any instructions for book-entry transfer of the Notes in compliance with the procedures of the Depositary shall be deemed to have been cancelled, and, upon such return or cancellation, as the case may be, the Fundamental Change Repurchase Notice with respect thereto shall be deemed to have been withdrawn.79
Appears in 1 contract
Samples: Indenture (Five9, Inc.)
Repurchase at Option of Holders Upon a Fundamental Change. (a) If there shall occur a Fundamental Change occurs at any time prior to the Maturity Date, then each Holder of Securities shall have the right, at such Holder’s option, to require the Company to repurchase for cash cash, at the Fundamental Change Repurchase Price (as defined below), all of such Holder’s NotesSecurities, or any portion thereof that is equal to minimum denominations of $1,000 or an integral a multiple of $1,000 in excess thereofprincipal amount, on the a date (the “Fundamental Change Repurchase Date”) specified by the Company Company, that is not less than 20 calendar days or nor more than 35 calendar days following after the date of the Company Repurchase Notice related to such Fundamental Change Company Notice at a cash repurchase price equal to 100% of the principal amount thereofof the Securities being repurchased, plus accrued and unpaid interest thereon to, but excluding, the Fundamental Change Repurchase Date (the “Fundamental Change Repurchase Price”), unless subject to the satisfaction by the Holder of the requirements set forth in Section 3.04(c); provided that if such Fundamental Change Repurchase Date falls after a Regular Record Date but and on or prior to the corresponding Interest Payment Date, then the interest payable on the Fundamental Change Repurchase Date shall be paid on the Fundamental Change Repurchase Date to which such the Holders of record of the Securities on the applicable Regular Record Date relates, in which case instead of the Company shall instead pay Holders surrendering the full amount of accrued and unpaid interest (to, but excluding, Securities for repurchase on such Interest Payment Date) to Holders of record as of such Regular Record Datedate, and the Fundamental Change Repurchase Price shall will be equal to 100% of the principal amount of Notes the Securities to be repurchased pursuant to this Article 15; provided that the Company shall not be required to repurchase, or to make an offer to repurchase, the Notes upon a Fundamental Change if a third party makes such an offer in the same manner, at the same time and otherwise in compliance with the requirements for an offer made by the Company as set forth in this Section 15.02 and such third party purchases all Notes properly surrendered and not validly withdrawn under its offer in the same manner, at the same time and otherwise in compliance with the requirements for an offer made by the Company as set forth in this Section 15.02repurchased.
(b) Repurchases On or before the 15th calendar day after the occurrence of Notes under a Fundamental Change, the Company shall provide to the Trustee and to all Holders of record of the Securities on the date of the Fundamental Change at their addresses shown in the Register of the Registrar and to beneficial owners of the Securities to the extent required by applicable law, the Company Repurchase Notice as set forth in Section 3.06 with respect to such Fundamental Change and the resulting repurchase right. No failure of the Company to give the foregoing notices and no defect therein shall limit the repurchase rights of Holders of Securities or affect the validity of the proceedings for the repurchase of the Securities pursuant to this Section 15.02 shall 3.04.
(c) For Securities to be made, repurchased at the option of the Holder, the Holder thereofmust deliver to the Paying Agent, upon:
prior to the close of business on the Fundamental Change Repurchase Date, (i) delivery a written notice to the Paying Agent or tender agent appointed to facilitate of the exercise of such repurchase (the “Tender Agent”) by a Holder of a duly completed notice right (the “Fundamental Change Repurchase Notice”) in the form set forth in Attachment 2 to on the Form reverse of Note attached hereto as Exhibit Athe Securities duly completed (if the Securities are certificated) (or, if the Notes Securities are Physical Notesevidenced by a Global Security, or in compliance such Holder must comply with the Depositary’s procedures for surrendering interests in Global Notes, if the Notes are Global Notes, in each case on or before the close of business on the Business Day immediately preceding the Fundamental Change Repurchase Date; and
applicable Depositary procedures) together with (ii) such Securities duly endorsed for transfer (if the Securities are certificated) or book-entry transfer of such Securities (if the Securities are evidenced by a Global Security). The delivery of the Notes, if the Notes are Physical Notes, such certificated Securities to the Paying Agent with, or Tender Agent, as the case may be, at any time after delivery of of, the Fundamental Change Repurchase Notice (together with all necessary endorsements for transferendorsements) at the Corporate Trust Office office of the Paying Agent or the principal office of the Tender Agent located in the United States of America as notified by the Tender Agent to Holders and the Trustee, as applicable, or book-entry transfer of the Notes, if the Notes are Global Notes, in compliance with the procedures of the Depositary, in each case such delivery being shall be a condition to receipt payment by the Company to the Holder of the Fundamental Change Repurchase Price therefor. The ; provided that such Fundamental Change Repurchase Notice Price shall be so paid pursuant to this Section 3.04 only if the Securities so delivered to the Paying Agent shall conform in respect all respects to the description thereof in the Fundamental Change Repurchase Notice. All questions as to the validity, eligibility (including time of receipt) and acceptance of any Notes to Securities for repurchase shall be repurchased determined by the Company, whose determination shall state:be final and binding absent manifest error.
(id) in The Company shall repurchase from the case of Physical NotesHolder thereof, the certificate numbers of the Notes pursuant to be delivered for repurchase;
(ii) the this Section 3.04, a portion of a Security if the principal amount of Notes to be repurchased, which must be such portion is $1,000 or an integral multiple of $1,000 in excess thereof; and. Provisions of this Indenture that apply to the repurchase of all of a Security also apply to the repurchase of such portion of such Security.
(iiie) that the Notes are to be repurchased by the Company pursuant to the applicable provisions of the Notes and this Indenture; provided, however, that if the Notes are Global Notes, the Fundamental Change Repurchase Notice must comply with appropriate Depositary procedures. Notwithstanding anything herein to the contrary, any Holder delivering to the Paying Agent or Tender Agent, as the case may be, the Fundamental Change Repurchase Notice contemplated by this Section 15.02 shall have the right to withdraw, in whole or in part, such Fundamental Change Repurchase Notice at any time prior to the close of business on the Business Day immediately preceding the Fundamental Change Repurchase Date by delivery of a written notice of withdrawal to the Paying Agent or Tender Agent, as the case may be, in accordance with Section 15.03, or in accordance with the customary procedures of the Depository with respect to Global Notes. The Paying Agent or Tender Agent, as the case may be, shall promptly notify the Company of the receipt by it of any Fundamental Change Repurchase Notice or written notice of withdrawal thereof.
(c) On or before . Any repurchase by the 20th Business Day after Company contemplated pursuant to the occurrence provisions of this Section 3.04 shall be consummated by the delivery of the effective date consideration to be received by the Holder promptly following the later of a Fundamental Change, the Company shall provide to all Holders of Notes and the Trustee, the Conversion Agent (in the case of a Conversion Agent other than the Trustee) and the Paying Agent (in the case of a Paying Agent other than the Trustee) a notice (the “Fundamental Change Company Notice”) of the occurrence of the effective date of the Fundamental Change and of the repurchase right at the option of the Holders arising as a result thereof. In the case of Physical Notes, such notice shall be by first class mail or, in the case of Global Notes, such notice shall be delivered in accordance with the applicable procedures of the Depositary. Simultaneously with providing such notice, the Company shall publish a notice containing the information set forth in the Fundamental Change Company Notice on the Company’s website or through such other public medium as the Company may use at that time. Each Fundamental Change Company Notice shall specify:
(i) the events causing the Fundamental Change;
(ii) the effective date of the Fundamental Change;
(iii) the last date on which a Holder may exercise the repurchase right pursuant to this Article 15;
(ivx) the Fundamental Change Repurchase Price;
Date and (vy) the Fundamental Change Repurchase Date;
(vi) the name and address time of the Paying Agent or Tender Agent, as the case may be, and the Conversion Agent, if applicable;
(vii) if applicable, the Conversion Rate and any adjustments to the Conversion Rate as a result of the Fundamental Change;
(viii) that the Notes with respect to which a Fundamental Change Repurchase Notice has been delivered by a Holder may be converted only if the Holder validly withdraws the Fundamental Change Repurchase Notice in accordance with the terms of this Indenture; and
(ix) the procedures that Holders must follow to require the Company to repurchase their Notes. No failure of the Company to give the foregoing notices and no defect therein shall limit the Holders’ repurchase rights or affect the validity of the proceedings for the repurchase of the Notes pursuant to this Section 15.02. At the Company’s request, given at least five days prior to the date the Fundamental Change Company Notice is to be sent (or such shorter period as may be agreed to by the Trustee), the Trustee shall give such notice in the Company’s name and at the Company’s expense; provided, however, that, in all cases, the text of such Fundamental Change Company Notice shall be prepared by the Company.
(d) Notwithstanding the foregoing, no Notes may be repurchased by the Company on any date at the option of the Holders upon a Fundamental Change if the principal amount of the Notes has been accelerated, and such acceleration has not been rescinded, on or prior to such date (except in the case of an acceleration resulting from a Default by the Company in the payment of the Fundamental Change Repurchase Price with respect to such Notes). The Paying Agent or Tender Agent, as the case may be, will promptly return to the respective Holders thereof any Physical Notes held by it during the acceleration of the Notes (except in the case of an acceleration resulting from a Default by the Company in the payment of the Fundamental Change Repurchase Price with respect to such Notes), or any instructions for book-entry transfer or delivery of the Notes in compliance with the procedures of the Depositary shall be deemed to have been cancelled, and, upon such return or cancellation, as the case may be, the Fundamental Change Repurchase Notice with respect thereto shall be deemed to have been withdrawnSecurities.
Appears in 1 contract
Samples: Indenture (Viavi Solutions Inc.)
Repurchase at Option of Holders Upon a Fundamental Change. (a) If a Fundamental Change occurs at any time prior to the Maturity Date, each Holder shall have the right, at such Holder’s option, to require the Company to repurchase for cash all of such Holder’s Notes, or any portion of the principal amount thereof that is equal to minimum denominations of $1,000 or an integral multiple of $1,000 in excess thereof, on the date (the “Fundamental Change Repurchase Date”,” which definition reflects postponement, if any, permitted by the last sentence of this Section 15.02(a)) specified by the Company that is not less than 20 calendar days or nor more than 35 calendar days following the date of the Fundamental Change Company Notice Notice, at a repurchase price equal to 100% of the principal amount thereof, plus accrued and unpaid interest thereon to, but excluding, the Fundamental Change Repurchase Date (the “Fundamental Change Repurchase Price”), unless the Fundamental Change Repurchase Date falls after a Regular Record Date but on or prior to the Interest Payment Date to which such Regular Record Date relates, in which case the Company shall instead pay the full amount of accrued and unpaid interest (to, but excluding, such Interest Payment Date) to Holders of record as of such Regular Record Date, and the Fundamental Change Repurchase Price shall be equal to 100% of the principal amount of Notes to be repurchased purchased pursuant to this Article 15; provided that . The Fundamental Change Repurchase Date shall be subject to postponement in order to allow the Company shall not be required to repurchase, or to make an offer to repurchase, the Notes upon a Fundamental Change if a third party makes such an offer in the same manner, at the same time and otherwise in compliance comply with the requirements for an offer made by the Company as set forth in this Section 15.02 and such third party purchases all Notes properly surrendered and not validly withdrawn under its offer in the same manner, at the same time and otherwise in compliance with the requirements for an offer made by the Company as set forth in this Section 15.02applicable law.
(b) Repurchases of Notes under this Section 15.02 shall be made, at the option of the Holder thereof, upon:
(i) delivery to the Paying Agent or tender agent appointed to facilitate the repurchase (the “Tender Agent”) by a Holder of a duly completed notice (the “Fundamental Change Repurchase Notice”) in the form set forth in Attachment 2 to the Form of Note attached hereto as Exhibit A, if the Notes are Physical Certificated Notes, or in compliance with the Depositary’s procedures Applicable Procedures for surrendering interests in Global Notes, if the Notes are Global Notes, in each case on or before the close of business on the Business Day immediately preceding the Fundamental Change Repurchase Date; and
(ii) delivery of the Notes, if the Notes are Physical Certificated Notes, to the Paying Agent on or Tender Agent, as before the case may be, at any time after delivery close of business on the Business Day immediately preceding the Fundamental Change Repurchase Notice Date (together with all necessary endorsements for transfer) at the Corporate Trust Office of the Paying Agent or the principal office of the Tender Agent located in the United States of America as notified by the Tender Agent to Holders and the Trustee, as applicableAgent, or book-entry transfer of the Notes, if the Notes are Global Notes, in compliance with the procedures of the DepositaryApplicable Procedures, in each case such delivery being a condition to receipt by the Holder of the Fundamental Change Repurchase Price therefor. The Fundamental Change Repurchase Notice in respect of any Notes to be repurchased shall state:
(i) A. in the case of Physical Certificated Notes, the certificate numbers of the Notes to be delivered for repurchase;
(ii) B. the portion of the principal amount of Notes to be repurchased, which must be $1,000 or an integral multiple thereofof $1,000; and
(iii) C. that the Notes are to be repurchased purchased by the Company pursuant to the applicable provisions of the Notes and this Indenture; provided, however, that if the Notes are Global Notes, the Fundamental Change Repurchase Notice must comply with appropriate Depositary proceduresthe Applicable Procedures. Notwithstanding anything herein to the contrary, any Holder delivering to the Paying Agent or Tender Agent, as the case may be, the Fundamental Change Repurchase Notice contemplated by this Section 15.02 shall have the right to withdraw, in whole or in part, such Fundamental Change Repurchase Notice at any time prior to the close of business on the Business Day immediately preceding the Fundamental Change Repurchase Date by delivery of a written notice of withdrawal to the Paying Agent or Tender Agent, as the case may be, in accordance with Section 15.03, or in accordance with the customary procedures of the Depository with respect to Global Notes. The Paying Agent or Tender Agent, as the case may be, shall promptly notify the Company of the receipt by it of any Fundamental Change Repurchase Notice or written notice of withdrawal thereof.
(c) On or before the 20th Business Day after the occurrence of the effective date of a Fundamental Change, the Company shall provide to all Holders of Notes and the Trustee, the Conversion Agent (in the case of a Conversion Agent other than the Trustee) and the Paying Agent (in the case of a Paying Agent other than the Trustee) a notice (the “Fundamental Change Company Notice”) of the occurrence of the effective date of the Fundamental Change and of the repurchase right at the option of the Holders arising as a result thereof. In the case of Physical Notes, such notice shall be by first class mail or, in the case of Global Notes, such notice shall be delivered in accordance with the applicable procedures of the Depositary. Simultaneously with providing such notice, the Company shall publish a notice containing the information set forth in the Fundamental Change Company Notice on the Company’s website or through such other public medium as the Company may use at that time. Each Fundamental Change Company Notice shall specify:
(i) the events causing the Fundamental Change;
(ii) the effective date of the Fundamental Change;
(iii) the last date on which If a Holder may exercise the repurchase right pursuant to this Article 15;
(iv) the Fundamental Change Repurchase Price;
(v) the Fundamental Change Repurchase Date;
(vi) the name and address of the Paying Agent or Tender Agent, as the case may be, and the Conversion Agent, if applicable;
(vii) if applicable, the Conversion Rate and any adjustments to the Conversion Rate as has already delivered a result of the Fundamental Change;
(viii) that the Notes with respect to which a Fundamental Change Repurchase Notice has been delivered by a Holder may be converted only if the Holder validly withdraws the Fundamental Change Repurchase Notice in accordance with the terms of this Indenture; and
(ix) the procedures that Holders must follow to require the Company to repurchase their Notes. No failure of the Company to give the foregoing notices and no defect therein shall limit the Holders’ repurchase rights or affect the validity of the proceedings for the repurchase of the Notes pursuant to this Section 15.02. At the Company’s request, given at least five days prior to the date the Fundamental Change Company Notice is to be sent (or such shorter period as may be agreed to by the Trustee), the Trustee shall give such notice in the Company’s name and at the Company’s expense; provided, however, that, in all cases, the text of such Fundamental Change Company Notice shall be prepared by the Company.
(d) Notwithstanding the foregoing, no Notes may be repurchased by the Company on any date at the option of the Holders upon a Fundamental Change if the principal amount of the Notes has been accelerated, and such acceleration has not been rescinded, on or prior to such date (except in the case of an acceleration resulting from a Default by the Company in the payment of the Fundamental Change Repurchase Price with respect to such Notes). The Paying Agent or Tender Agent, as the case may be, will promptly return to the respective Holders thereof any Physical Notes held by it during the acceleration of the Notes (except in the case of an acceleration resulting from a Default by the Company in the payment of the Fundamental Change Repurchase Price with respect to such Notes), or any instructions for book-entry transfer of the Notes in compliance with the procedures of the Depositary shall be deemed to have been cancelled, and, upon such return or cancellation, as the case may be, the Fundamental Change Repurchase Notice with respect thereto shall be deemed to have been withdrawn.a Note, such Holder may not surrender such Note for conversion until such Holder has validly
Appears in 1 contract
Samples: Indenture (Carbonite Inc)
Repurchase at Option of Holders Upon a Fundamental Change. (a) If a Fundamental Change occurs at any time prior to the Maturity Date, each Holder shall have the right, at such Holder’s option, to require the Company to repurchase for cash all of such Holder’s Notes, or any portion of the principal amount thereof properly surrendered and not validly withdrawn pursuant to Section 15.03 that is equal to minimum denominations of $1,000 or an integral multiple of $1,000 in excess thereof1,000, on the date (the “Fundamental Change Repurchase Date”) specified by the Company that is not less than 20 calendar days Business Days or more than 35 calendar days Business Days following the date of the Fundamental Change Company Notice at a repurchase price equal to 100% of the principal amount thereof, plus accrued and unpaid interest thereon interest, if any, plus any remaining amounts that would be owed to, but excluding, the Fundamental Change Repurchase Maturity Date (the “Fundamental Change Repurchase Price”), unless the Fundamental Change Repurchase Date falls after a Regular Record Date but on or prior to the Interest Payment Date to which such Regular Record Date relates, in which case the Company shall instead pay the full amount of accrued and unpaid interest (to, but excluding, such Interest Payment Date) to Holders of record as of such Regular Record Date, and the Fundamental Change Repurchase Price shall be equal to 100% of the principal amount of Notes to be repurchased pursuant to this Article 15; provided that 0. The Fundamental Change Repurchase Date shall be subject to postponement in order to allow the Company shall not be required to repurchase, or to make an offer to repurchase, the Notes upon a Fundamental Change if a third party makes such an offer in the same manner, at the same time and otherwise in compliance comply with the requirements for an offer made by the Company as set forth in this Section 15.02 and such third party purchases all Notes properly surrendered and not validly withdrawn under its offer in the same manner, at the same time and otherwise in compliance with the requirements for an offer made by the Company as set forth in this Section 15.02applicable law.
(b) Repurchases of Notes under this Section 15.02 shall be made, at the option of the Holder thereof, upon:
(i) delivery to the Paying Agent or tender paying agent appointed to facilitate the repurchase (the “Tender Agent”) by a Holder of a duly completed notice (the “Fundamental Change Repurchase Notice”) in the form set forth in Attachment 2 to the Form of Note attached hereto as Exhibit A, if the Notes are Physical Notes, or in compliance with the Depositary’s procedures Applicable Procedures for surrendering interests in Global Notes, if the Notes are Global Notes, in each case on or before the close of business on the Business Day immediately preceding the Fundamental Change Repurchase Date; and
(ii) delivery of the Notes, if the Notes are Physical Notes, to the Paying Agent or Tender Agent, as the case may be, paying agent at any time after delivery of the Fundamental Change Repurchase Notice (together with all necessary endorsements for transfer) at the Corporate Trust Office of the Paying Agent or the principal office of the Tender Agent located in the United States of America as notified by the Tender Agent to Holders and the Trustee, as applicablepaying agent, or book-book- entry transfer of the Notes, if the Notes are Global Notes, in compliance with the procedures of the Depositary, in each case such delivery being a condition to receipt by the Holder of the Fundamental Change Repurchase Price therefor. The Fundamental Change Repurchase Notice in respect of any Notes to be repurchased shall state:
(iiii) in the case of Physical Notes, the certificate numbers of the Notes to be delivered for repurchase;
(iiiv) the portion of the principal amount of Notes to be repurchased, which must be in minimum denominations of $1,000 or an integral multiple thereof; and
(iiiv) that the Notes are to be repurchased by the Company pursuant to the applicable provisions of the Notes and this Indenture; Table of Contents provided, however, that if the Notes are Global Notes, the Fundamental Change Repurchase Notice must comply with appropriate Depositary proceduresthe Applicable Procedures. Notwithstanding anything herein to the contrary, any Holder delivering to the Paying Agent or Tender Agent, as the case may be, paying agent the Fundamental Change Repurchase Notice contemplated by this Section 15.02 shall have the right to withdraw, in whole or in part, such Fundamental Change Repurchase Notice at any time prior to the close of business on the Business Day immediately preceding the Fundamental Change Repurchase Date by delivery of a written notice of withdrawal to the Paying Agent or Tender Agent, as the case may be, paying agent in accordance with Section 15.03, or in accordance with the customary procedures of the Depository with respect to Global Notes. The Paying Agent or Tender Agent, as the case may be, paying agent shall promptly notify the Company of the receipt by it of any Fundamental Change Repurchase Notice or written notice of withdrawal thereof.
(c) On or before the 20th Business Day after the occurrence of the effective date of a Fundamental Change, the Company shall provide to all Holders of Notes and Notes, the Trustee, the Conversion Agent (in the case of a Conversion Agent if other than the Trustee) and the Paying Agent paying agent (in the case of a Paying Agent paying agent other than the Trustee) a written notice (the “Fundamental Change Company Notice”) of the occurrence of the effective date of the Fundamental Change and of the repurchase right at the option of the Holders arising as a result thereof. In the case of Physical Notes, such notice shall be by first class mail or, in the case of Global Notes, such notice shall be delivered in accordance with the applicable procedures Applicable Procedures of the Depositary. Simultaneously with providing such notice, the Company shall publish a notice containing the information set forth in the Fundamental Change Company Notice on the Company’s website or through such other public medium as the Company may use at that time. Each Fundamental Change Company Notice shall specify:
(i) the events causing the Fundamental Change;
(ii) the effective date of the Fundamental Change;
(iii) the last date on which a Holder may exercise the repurchase right pursuant to this Article 150;
(iv) the Fundamental Change Repurchase Price;
(v) the Fundamental Change Repurchase Date;
(vi) the name and address of the Paying Agent or Tender Agent, as the case may be, paying agent and the Conversion Agent, if applicable;
(vii) if applicable, the Conversion Rate and any adjustments to the Conversion Rate as a result of the Fundamental ChangeRate;
(viii) that the Notes with respect to which a Fundamental Change Repurchase Notice has been delivered by a Holder may be converted only if the Holder validly withdraws the Fundamental Change Repurchase Notice in accordance with the terms of this Indenture; and
(ix) the procedures that Holders must follow to require the Company to repurchase their Notes. No failure of the Company to give the foregoing notices and no defect therein shall limit the Holders’ repurchase rights or affect the validity of the proceedings for the repurchase of the Notes pursuant to this Section 15.02. At the Company’s request, given at least five days prior to the date the Fundamental Change Company Notice is to be sent (or Simultaneously with providing such shorter period as may be agreed to by the Trustee)notice, the Trustee shall give Company will publish such notice in the Company’s name and at the Company’s expense; provided, however, that, in all cases, the text of information on its website or through such Fundamental Change Company Notice shall be prepared by the Company.
(d) Notwithstanding the foregoing, no Notes may be repurchased by other public medium as the Company on any date may use at the option of the Holders upon a Fundamental Change if the principal amount of the Notes has been accelerated, and such acceleration has not been rescinded, on or prior to such date (except in the case of an acceleration resulting from a Default by the Company in the payment of the Fundamental Change Repurchase Price with respect to such Notes). The Paying Agent or Tender Agent, as the case may be, will promptly return to the respective Holders thereof any Physical Notes held by it during the acceleration of the Notes (except in the case of an acceleration resulting from a Default by the Company in the payment of the Fundamental Change Repurchase Price with respect to such Notes), or any instructions for book-entry transfer of the Notes in compliance with the procedures of the Depositary shall be deemed to have been cancelled, and, upon such return or cancellation, as the case may be, the Fundamental Change Repurchase Notice with respect thereto shall be deemed to have been withdrawnthat time.
Appears in 1 contract
Samples: Indenture (Kaleyra, Inc.)
Repurchase at Option of Holders Upon a Fundamental Change. (a) If there shall occur a Fundamental Change occurs at any time prior to maturity of the Maturity DateNotes, then each Holder Noteholder shall have the right, at such Holder’s holder's option, to require the Company to repurchase for cash all of such Holder’s Notesholder's Notes for cash, or any portion thereof that is equal to minimum denominations of $1,000 or an integral a multiple of $1,000 in excess thereofprincipal amount, on the date (the “Fundamental Change Repurchase Date”"FUNDAMENTAL CHANGE REPURCHASE DATE") specified by the Company that is not less than 20 calendar days or twenty (20) Business Days and not more than 35 calendar days following thirty five (35) Business Days after the date of the Fundamental Change Company Repurchase Notice (as defined below) at a repurchase price equal to 100% of the principal amount thereof, plus together with accrued and unpaid interest interest, if any, thereon to, but excluding, the Fundamental Change Repurchase Date (the “Fundamental Change Repurchase Price”"FUNDAMENTAL CHANGE REPURCHASE PRICE"), unless the . If such Fundamental Change Repurchase Date falls after a Regular Record Date but record date for the payment of interest and on or prior to the corresponding Interest Payment Date to which such Regular Record Date relatesDate, in which case the Company shall instead pay the principal amount to the Noteholders, and pay the full amount of accrued and unpaid interest (tointerest, but excludingif any, payable on such Interest Payment Date) Date to Holders the holder of record as on the close of such Regular Record Date, and business on the Fundamental Change Repurchase Price shall be equal to 100% of the principal amount of Notes to be repurchased pursuant to this Article 15; provided that the Company shall not be required to repurchase, or to make an offer to repurchase, the Notes upon a Fundamental Change if a third party makes such an offer in the same manner, at the same time and otherwise in compliance with the requirements for an offer made by the Company as set forth in this Section 15.02 and such third party purchases all Notes properly surrendered and not validly withdrawn under its offer in the same manner, at the same time and otherwise in compliance with the requirements for an offer made by the Company as set forth in this Section 15.02.
(b) corresponding record date. Repurchases of Notes under this Section 15.02 16.02 shall be made, at the option of the Holder holder thereof, upon:
(i) delivery to the Trustee (or other Paying Agent or tender agent appointed to facilitate by the repurchase (the “Tender Agent”Company) by a Holder holder of a duly completed notice (the “Fundamental Change Repurchase Notice”"FUNDAMENTAL CHANGE REPURCHASE NOTICE") in the form set forth in Attachment 2 on the reverse of the Note prior to the Form of Note attached hereto as Exhibit A, if the Notes are Physical Notes, or in compliance with the Depositary’s procedures for surrendering interests in Global Notes, if the Notes are Global Notes, in each case on or before the close of business on the Business Day immediately preceding the Fundamental Change Repurchase Date; and
(ii) delivery or book-entry transfer of the Notes, if the Notes are Physical Notes, to the Trustee (or other Paying Agent or Tender Agent, as appointed by the case may be, Company) at any time after delivery of the Fundamental Change Repurchase Notice (together with all necessary endorsements for transferendorsements) at the Corporate Trust Office of the Trustee (or other Paying Agent or appointed by the principal office of the Tender Agent located Company) in the United States Borough of America as notified by the Tender Agent to Holders and the TrusteeManhattan, as applicable, or book-entry transfer of the Notes, if the Notes are Global Notes, in compliance with the procedures of the Depositary, in each case such delivery being a condition to receipt by the Holder holder of the Fundamental Change Repurchase Price therefor. The ; provided that such Fundamental Change Repurchase Notice Price shall be so paid pursuant to this Section 16.02 only if the Note so delivered to the Trustee (or other Paying Agent appointed by the Company) shall conform in respect of any Notes all respects to be repurchased shall state:
(i) the description thereof in the case of Physical Notes, the certificate numbers of the Notes to be delivered for repurchase;
(ii) the portion of the principal amount of Notes to be repurchased, which must be $1,000 or an integral multiple thereof; and
(iii) that the Notes are to be repurchased related Fundamental Change Repurchase Notice. Any purchase by the Company contemplated pursuant to the applicable provisions of this Section 16.02 shall be consummated by the Notes and this Indenture; provided, however, that if delivery of the Notes are Global Notes, consideration to be received by the holder promptly following the later of the Fundamental Change Repurchase Notice must comply with appropriate Depositary proceduresDate and the time of the book-entry transfer or delivery of the Note. Notwithstanding anything herein to the contrary, any Holder holder delivering to the Trustee (or other Paying Agent or Tender Agent, as appointed by the case may be, Company) the Fundamental Change Repurchase Notice contemplated by this Section 15.02 16.02 shall have the right to withdraw, in whole or in part, withdraw such Fundamental Change Repurchase Notice at any time prior to the close of business on the Business Day immediately preceding prior to the Fundamental Change Repurchase Date by delivery of a written notice of withdrawal to the Trustee (or other Paying Agent or Tender Agent, as appointed by the case may be, Company) in accordance with Section 15.03, or in accordance with the customary procedures of the Depository with respect to Global Notes16.03 below. The Trustee (or other Paying Agent or Tender Agent, as appointed by the case may be, Company) shall promptly notify the Company of the receipt by it of any Fundamental Change Repurchase Notice or written notice of withdrawal thereof.
(cb) On or before the 20th Business Day fifteenth day after the occurrence of the effective date of a Fundamental Change, the Company shall provide mail to all Holders holders of record of the Notes and the Trustee, the Conversion Agent (in the case of a Conversion Agent other than the Trustee) and the Paying Agent (in the case of a Paying Agent other than the Trustee) a notice (the “Fundamental Change Company Notice”"FUNDAMENTAL CHANGE NOTICE") of the occurrence of the effective date of the such Fundamental Change and of the repurchase right at the option of the Holders holders arising as a result thereof. In the case of Physical Notes, such notice Such mailing shall be by first class mail ormail. The Company shall also deliver a copy of the Fundamental Change Notice to the Trustee and cause a copy of such Fundamental Change Notice, or a summary of the information contained therein, to be published once in the case a newspaper of Global Notes, such notice shall be delivered general circulation in accordance The City of New York. Concurrently with the applicable procedures mailing of the Depositary. Simultaneously with providing such noticeany Fundamental Change Notice, the Company shall publish issue a notice containing the information set forth press release announcing such Fundamental Change referred to in the Fundamental Change Company Notice on Notice, the Company’s website or through such other public medium as form and content of which press release shall be determined by the Company in its sole discretion. The failure to issue any such press release or any defect therein shall not affect the validity of the Fundamental Change Notice or any proceedings for the repurchase of any Note that any Noteholder may use at that timeelect to have the Company repurchase as provided in this Section 16.02. Each Fundamental Change Company Notice shall specify:
(i) specify the events causing circumstances constituting the Fundamental Change;
(ii) the effective date of , the Fundamental Change;
(iii) the last date on which a Holder may exercise the repurchase right pursuant to this Article 15;
(iv) Change Repurchase Date and the Fundamental Change Repurchase Price;
(v) , that the holder must exercise the repurchase right on or prior to the close of business on the Fundamental Change Repurchase Date;
Date (vi) the name and address "FUNDAMENTAL CHANGE EXPIRATION TIME"), that the holder shall have the right to withdraw any Notes surrendered prior to the Fundamental Change Expiration Time, a description of the Paying Agent procedure which a Noteholder must follow to exercise such repurchase right and to withdraw any surrendered Notes, the place or Tender Agent, as places where the case may be, holder is to surrender such holder's Notes and the Conversion Agent, if applicable;
(vii) if applicable, the Conversion Rate and any adjustments to the Conversion Rate as a result CUSIP number or numbers of the Fundamental Change;
Notes (viiiif then generally in use) that the Notes with respect to which and include a form of Fundamental Change Repurchase Notice has been delivered by a Holder may be converted only if the Holder validly withdraws the Fundamental Change Repurchase Notice in accordance with the terms of this Indenture; and
(ix) the procedures that Holders must follow to require the Company to repurchase their NotesNotice. No failure of the Company to give the foregoing notices and no defect therein shall limit the Holders’ Noteholders' repurchase rights or affect the validity of the proceedings for the repurchase of the Notes pursuant to this Section 15.02. At the Company’s request, given at least five days prior to the date the Fundamental Change Company Notice is to be sent (or such shorter period as may be agreed to by the Trustee), the Trustee shall give such notice in the Company’s name and at the Company’s expense; provided, however, that, in all cases, the text of such Fundamental Change Company Notice shall be prepared by the Company16.02.
(dc) Notwithstanding the foregoing, no Notes may be repurchased by the Company on any date at the option of the Holders holders upon a Fundamental Change if the principal amount of the Notes has been accelerated, and such acceleration has not been rescinded, on or prior to such date (except in the case of an acceleration resulting from a Default by the Company in the payment of the Fundamental Change Repurchase Price with respect to such Notes). The Paying Agent or Tender Agent, as the case may be, will promptly return to the respective Holders thereof any Physical Notes held by it during the acceleration of the Notes (except in the case of an acceleration resulting from a Default by the Company in the payment of the Fundamental Change Repurchase Price with respect to such Notes), or any instructions for book-entry transfer of the Notes in compliance with the procedures of the Depositary shall be deemed to have been cancelled, and, upon such return or cancellation, as the case may be, the Fundamental Change Repurchase Notice with respect thereto shall be deemed to have been withdrawnDate.
Appears in 1 contract
Repurchase at Option of Holders Upon a Fundamental Change. (a) If a Fundamental Change occurs at any time prior to the Maturity Datetime, each Holder shall have the right, at such Holder’s option, to require the Company to repurchase for cash all of such Holder’s Notes, or any portion of the principal amount thereof that is equal to minimum denominations of $1,000 or an integral a multiple of $1,000 in excess thereof1,000, on the a date of repurchase (the “Fundamental Change Repurchase Date”) specified by the Company that is not less than 20 calendar days or nor more than 35 calendar days following the date of the Fundamental Change Company Notice at a repurchase price equal to 100% of the principal amount thereofof the Notes to be repurchased, plus accrued and unpaid interest thereon to, but excluding, the Fundamental Change Repurchase Date (the “Fundamental Change Repurchase Price”), unless ; provided that if the Fundamental Change Repurchase Date falls after a Regular Record Date but on or prior to the Interest Payment Date to which such Regular Record Date relates, in which case then the Company shall instead pay the full amount of accrued and unpaid interest (to, but excluding, such Interest Payment Date) to Holders the Holder of record as of on such Regular Record Date, and the Fundamental Change Repurchase Price shall be equal to 100% of the principal amount of Notes to be repurchased pursuant to this Article 15; provided that 10. The Fundamental Change Repurchase Date shall be subject to postponement in order to allow the Company shall not be required to repurchase, or comply with applicable law as a result of changes to make an offer to repurchase, such applicable law occurring after the Notes upon a Fundamental Change if a third party makes such an offer in the same manner, at the same time and otherwise in compliance with the requirements for an offer made by the Company as set forth in date of this Section 15.02 and such third party purchases all Notes properly surrendered and not validly withdrawn under its offer in the same manner, at the same time and otherwise in compliance with the requirements for an offer made by the Company as set forth in this Section 15.02Supplemental Indenture.
(b) Repurchases of Notes under this Section 15.02 10.01 shall be made, at the option of the Holder thereof, upon:
(i) delivery to the Paying Agent or tender agent appointed to facilitate the repurchase (the “Tender Agent”) by a Holder of a duly completed notice (the “Fundamental Change Repurchase Notice”) in the form set forth in Attachment 2 to the Form of Note attached hereto as Exhibit A, if the Notes are Physical Certificated Notes, or in compliance with the Depositary’s applicable procedures for surrendering interests in Global Notes, if the Notes are Global Notes, in each case on or before the close of business on the Business Day immediately preceding the Fundamental Change Repurchase Date; and
(ii) delivery of the Notes, if the Notes are Physical Certificated Notes, to the Paying Agent or Tender Agent, as the case may be, at any time after delivery of the Fundamental Change Repurchase Notice (together with all necessary endorsements for transfer) at the Corporate Trust Office of the Paying Agent or the principal office of the Tender Agent located in the United States of America as notified by the Tender Agent to Holders and the Trustee, as applicableAgent, or book-entry transfer of the Notes, if the Notes are Global Notes, in compliance with the applicable procedures of the Depositary, in each case such delivery being a condition to receipt by the Holder of the Fundamental Change Repurchase Price therefor. The Fundamental Change Repurchase Notice in respect of any Notes to be repurchased shall state:
(i) in the case of Physical Certificated Notes, the certificate numbers and CUSIP number of the Notes to be delivered for repurchasepurchase;
(ii) the portion of the principal amount of Notes to be repurchased, which must be $1,000 or an integral multiple thereof; and
(iii) that the Notes are to be repurchased by the Company pursuant to the applicable provisions of the Notes and this the Indenture; provided, however, that if the Notes are Global Notes, the Fundamental Change Repurchase Notice must comply with appropriate Depositary applicable procedures. Notwithstanding anything herein to the contrary, any Holder delivering to the Paying Agent or Tender Agent, as the case may be, the Fundamental Change Repurchase Notice contemplated by this Section 15.02 10.01 shall have the right to withdraw, in whole or in part, such Fundamental Change Repurchase Notice at any time prior to the close of business on the Business Day immediately preceding the Fundamental Change Repurchase Date by delivery of a written notice of withdrawal to the Paying Agent or Tender Agent, as the case may be, in accordance with Section 15.03, or in accordance with the customary procedures of the Depository with respect to Global Notes10.02. The Paying Agent or Tender Agent, as the case may be, shall promptly notify the Company of the receipt by it of any Fundamental Change Repurchase Notice or written notice of withdrawal thereof.
(c) On or before the 20th Business Day calendar day after the occurrence of the effective date of a Fundamental Change, the Company shall provide to all Holders of Notes and the Trustee, the Conversion Agent (in the case of a Conversion Agent other than the Trustee) Trustee and the Paying Agent (in the case of a Paying Agent other than the Trustee) a notice (the “Fundamental Change Company Notice”) of the occurrence of the effective date of the Fundamental Change and of the resulting repurchase right at the option of the Holders arising as a result thereof. In the case of Physical Notes, such notice shall be by first class mail or, in the case of Global Notes, such notice shall be delivered in accordance with the applicable procedures of the Depositary. Simultaneously with providing such notice, the Company shall publish a notice containing the information set forth in the Fundamental Change Company Notice on the Company’s website or through such other public medium as the Company may use at that time. Each Fundamental Change Company Notice shall specify:
(i) the events causing the Fundamental Change;
(ii) the effective date of the Fundamental Change;
(iii) the last date on which a Holder may exercise the repurchase right pursuant to this Article 1510;
(iv) the Fundamental Change Repurchase Price;
(v) the Fundamental Change Repurchase Date;
(vi) the name and address of the Paying Agent or Tender Agent, as the case may be, and the Conversion Agent, if applicable;
(vii) if applicable, the Conversion Rate and any adjustments to the Conversion Rate as a result of the Fundamental ChangeRate;
(viii) that the Notes with respect to which a Fundamental Change Repurchase Notice has been delivered by a Holder may be converted only if the Holder validly withdraws the Fundamental Change Repurchase Notice in accordance with the terms of this the Indenture; and;
(ix) the procedures that Holders must follow to require the Company to repurchase their Notes; and
(x) any other information that the Company shall reasonably determine is appropriate to include therein. No failure of the Company to give the foregoing notices and no defect therein shall limit the Holders’ repurchase rights or affect the validity of the proceedings for the repurchase of the Notes pursuant to this Section 15.0210.02. At the Company’s request, given at least five days prior to the date the Fundamental Change Company Notice is to be sent (or such shorter period as may be agreed to by the Trustee), the Trustee shall give such notice in the Company’s name and at the Company’s expense; provided, however, that, in all cases, the text of such Fundamental Change Company Notice shall be prepared by the Company.
(d) Notwithstanding the foregoing, no Notes may be repurchased by the Company on any date at the option of the Holders upon a Fundamental Change if the principal amount of the Notes has been accelerated, and such acceleration has not been rescinded, on or prior to such date (except in the case of an acceleration resulting from a Default by the Company in the payment of the Fundamental Change Repurchase Price with respect to such Notes). The Paying Agent or Tender Agent, as the case may be, will promptly return to the respective Holders thereof any Physical Certificated Notes held by it during the acceleration of the Notes (except in the case of an acceleration resulting from a Default by the Company in the payment of the a Fundamental Change Repurchase Price with respect to such Notes), or any instructions for book-entry transfer of the Notes in compliance with the applicable procedures of the Depositary shall be deemed to have been cancelled, and, upon such return or cancellation, as the case may be, the Fundamental Change Repurchase Notice with respect thereto shall be deemed to have been withdrawn.
(e) Notwithstanding the foregoing, the Company shall not be required to repurchase, or to make an offer to repurchase, the Notes upon a Fundamental Change if a third party makes such an offer in the same manner, at the same time and otherwise in compliance with the requirements for an offer made by the Company as set forth in this Article 10, and such third party purchases all Notes properly surrendered and not validly withdrawn under its offer in the same manner, at the same time and otherwise in compliance with the requirements for an offer made by the Company as set forth in this Article 10.
Appears in 1 contract
Samples: First Supplemental Indenture (Veeco Instruments Inc)
Repurchase at Option of Holders Upon a Fundamental Change. (a) If a Fundamental Change occurs at any time prior to the Maturity Datetime, each Holder shall have the right, at such Holder’s option, to require the Company to repurchase for cash all of such Holder’s Notes, or any portion thereof that is equal to minimum denominations of $1,000 or an integral multiple of $1,000 in excess thereof1,000, on the date (the “Fundamental Change Repurchase Date”) specified by the Company that is not less than 20 calendar days or Business Days nor more than 35 calendar days Business Days following the date of the Fundamental Change Company Notice at a repurchase price equal to 100% of the principal amount thereof, plus accrued and unpaid interest interest, if any, thereon to, but excluding, the Fundamental Change Repurchase Date (the “Fundamental Change Repurchase Price”), unless the Fundamental Change Repurchase Date falls after a Regular Record Date but on or prior to the Interest Payment Date to which such Regular Record Date relates, in which case the Company shall instead pay the full amount of accrued and unpaid interest (to, but excluding, such Interest Payment Date) to Holders of record as of such Regular Record Date, and the Fundamental Change Repurchase Price shall be equal to 100% of the principal amount of Notes to be repurchased pursuant to this Article 15; provided that . The Fundamental Change Repurchase Date shall be subject to postponement to allow the Company shall not be required to repurchase, or to make an offer to repurchase, the Notes upon a Fundamental Change if a third party makes such an offer in the same manner, at the same time and otherwise in compliance comply with the requirements for an offer made by the Company as set forth in this Section 15.02 and such third party purchases all Notes properly surrendered and not validly withdrawn under its offer in the same manner, at the same time and otherwise in compliance with the requirements for an offer made by the Company as set forth in this Section 15.02applicable law.
(b) Repurchases of Notes under this Section 15.02 shall be made, at the option of the Holder thereof, upon:
(i) delivery to the Paying Agent or tender agent appointed to facilitate the repurchase (the “Tender Agent”) by a Holder of a duly completed notice (the “Fundamental Change Repurchase Notice”) in the form set forth in Attachment 2 to the Form of Note attached hereto as Exhibit A, if the Notes are Physical Notes, or in compliance with the Depositary’s procedures Applicable Procedures for surrendering interests in Global Notes, if the Notes are Global Notes, in each case on or before the close of business on the Business Day immediately preceding the Fundamental Change Repurchase Date; and
(ii) delivery of the Notes, if the Notes are Physical Notes, to the Paying Agent or Tender Agent, as the case may be, at any time after delivery of the Fundamental Change Repurchase Notice (together with all necessary endorsements for transfer) at the Corporate Trust Office of the Paying Agent or the principal office of the Tender Agent located in the United States of America as notified by the Tender Agent to Holders and the Trustee, as applicableAgent, or book-entry transfer of the Notes, if the Notes are Global Notes, in compliance with the procedures of the DepositaryApplicable Procedures, in each case such delivery being a condition to receipt by the Holder of the Fundamental Change Repurchase Price therefor. The Fundamental Change Repurchase Notice in respect of any Notes to be repurchased shall state:
(i) in the case of Physical Notes, the certificate numbers of the Notes to be delivered for repurchase;
(ii) the portion of the principal amount of Notes to be repurchased, which must be $1,000 or an integral multiple thereof; and
(iii) that the Notes are to be repurchased by the Company pursuant to the applicable provisions of the Notes and this Indenture; provided, however, that if the Notes are Global Notes, the Fundamental Change Repurchase Notice must comply with appropriate Depositary proceduresthe Applicable Procedures. Notwithstanding anything herein to the contrary, any Holder delivering to the Paying Agent or Tender Agent, as the case may be, the Fundamental Change Repurchase Notice contemplated by this Section 15.02 shall have the right to withdraw, in whole or in part, such Fundamental Change Repurchase Notice at any time prior to the close of business on the Business Day immediately preceding the Fundamental Change Repurchase Date by delivery of a written notice of withdrawal to the Paying Agent or Tender Agent, as the case may be, in accordance with Section 15.03, or in accordance with the customary procedures of the Depository with respect to Global Notes. The Paying Agent or Tender Agent, as the case may be, shall promptly notify the Company of the receipt by it of any Fundamental Change Repurchase Notice or written notice of withdrawal thereof.
(c) On or before the 20th Business Day after the occurrence of the effective date of a Fundamental Change, the Company shall provide to all Holders of Notes and the Trustee, the Conversion Exchange Agent (in the case of a Conversion an Exchange Agent other than the Trustee) and the Paying Agent (in the case of a Paying Agent other than the Trustee) a written notice (the “Fundamental Change Company Notice”) of the occurrence of the effective date of the Fundamental Change and of the repurchase right at the option of the Holders arising as a result thereof. In the case of Physical Notes, such notice shall be by first class mail or, in the case of Global Notes, such notice shall be delivered in accordance with the applicable procedures of the Depositary. Simultaneously with providing such notice, the Company shall publish a notice containing the information set forth in the Fundamental Change Company Notice on the Company’s website or through such other public medium as the Company may use at that timeApplicable Procedures. Each Fundamental Change Company Notice shall specify:
(i) the events causing the Fundamental Change;
(ii) the effective date of the Fundamental Change;
(iii) the last date on which a Holder may exercise the repurchase right pursuant to this Article 15;
(iv) the Fundamental Change Repurchase Price;
(v) the Fundamental Change Repurchase Date;
(vi) the name and address of the Paying Agent or Tender Agent, as the case may be, and the Conversion AgentExchange Agent (if other than the Trustee), if applicable;
(vii) if applicable, the Conversion Exchange Rate and any adjustments to the Conversion Rate as a result of the Fundamental ChangeExchange Rate;
(viii) that the Notes with respect to which a Fundamental Change Repurchase Notice has been delivered by a Holder may be converted exchanged only if the Holder validly withdraws the Fundamental Change Repurchase Notice in accordance with the terms of this Indenture; and
(ix) the procedures that Holders must follow to require the Company to repurchase their Notes. No failure of the Company to give the foregoing notices and no defect therein shall limit the Holders’ repurchase rights or affect the validity of the proceedings for the repurchase of the Notes pursuant to this Section 15.02. At the Company’s request, given at least five days prior to the date the Fundamental Change Company Notice is to be sent (or such shorter period as may be agreed to by the Trustee), the Trustee shall give such notice in the Company’s name and at the Company’s expense; provided, however, that, in all cases, the text of such Fundamental Change Company Notice shall be prepared by the Company.
(d) Notwithstanding the foregoing, no Notes may be repurchased by the Company on any date at the option of the Holders upon a Fundamental Change if the principal amount of the Notes has been accelerated, and such acceleration has not been rescinded, on or prior to such date (except in the case of an acceleration resulting from a Default by the Company in the payment of the Fundamental Change Repurchase Price with respect to such Notes). The Paying Agent or Tender Agent, as the case may be, will promptly return to the respective Holders thereof any Physical Notes held by it during the acceleration of the Notes (except in the case of an acceleration resulting from a Default by the Company in the payment of the Fundamental Change Repurchase Price with respect to such Notes), or any instructions for book-entry transfer of the Notes in compliance with the procedures of the Depositary Applicable Procedures shall be deemed to have been cancelled, and, upon such return or cancellation, as the case may be, the Fundamental Change Repurchase Notice with respect thereto shall be deemed to have been withdrawn.
Appears in 1 contract
Samples: Indenture (LivaNova PLC)
Repurchase at Option of Holders Upon a Fundamental Change. (a) If a Fundamental Change (other than an Exempted Fundamental Change) occurs at any time prior to the Maturity Date, each Holder shall have the right, at such Holder’s option, to require the Company to repurchase for cash all of such Holder’s Notes, or any portion of the principal amount thereof that is equal to minimum denominations of $1,000 or an integral multiple of $1,000 in excess thereof1,000, on the date (the “Fundamental Change Repurchase Date”) specified by the Company that is not less than 20 calendar days or more than 35 calendar days following the date of the Fundamental Change Company Notice at a repurchase price equal to 100% of the principal amount thereof, plus accrued and unpaid interest thereon to, but excluding, the Fundamental Change Repurchase Date (the “Fundamental Change Repurchase Price”), unless the Fundamental Change Repurchase Date falls after a Regular Record Date but on or prior to the Interest Payment Date to which such Regular Record Date relates, in which case the Company shall instead pay the full amount of accrued and unpaid interest (to, but excluding, such Interest Payment Date) to Holders of record as of such Regular Record Date, and the Fundamental Change Repurchase Price shall be equal to 100% of the principal amount of Notes to be repurchased pursuant to this Article 15; provided that . The Fundamental Change Repurchase Date shall be subject to postponement in order to allow the Company shall not be required to repurchase, or to make an offer to repurchase, the Notes upon a Fundamental Change if a third party makes such an offer in the same manner, at the same time and otherwise in compliance comply with the requirements for an offer made by the Company as set forth in this Section 15.02 and such third party purchases all Notes properly surrendered and not validly withdrawn under its offer in the same manner, at the same time and otherwise in compliance with the requirements for an offer made by the Company as set forth in this Section 15.02applicable law.
(b) Repurchases of Notes under this Section 15.02 shall be made, at the option of the Holder thereof, upon:
(i) delivery to the Trustee and Paying Agent or tender agent appointed to facilitate (if other than the repurchase (the “Tender Agent”Trustee) by a Holder of a duly completed notice (the “Fundamental Change Repurchase Notice”) in the form set forth in Attachment 2 to the Form of Note attached hereto as Exhibit A, if the Notes are Physical Notes, or in compliance with the Depositary’s procedures for surrendering interests in Global Notes, if the Notes are Global Notes, in each case on or before the close of business on the Business Day immediately preceding the Fundamental Change Repurchase Date; and
(ii) delivery of the Notes, if the Notes are Physical Notes, to the Trustee and Paying Agent or Tender Agent, as (if other than the case may be, Trustee) at any time after delivery of the Fundamental Change Repurchase Notice (together with all necessary endorsements for transfer) at the Corporate Trust Office of the Paying Agent or the principal office of the Tender Agent located in the United States of America as notified by the Tender Agent to Holders and the Trustee, as applicableAgent, or book-entry transfer of the Notes, if the Notes are Global Notes, in compliance with the procedures of the Depositary, in each case such delivery being a condition to receipt by the Holder of the Fundamental Change Repurchase Price therefor. The Fundamental Change Repurchase Notice in respect of any Notes to be repurchased shall state:
(iiii) in the case of Physical Notes, the certificate numbers of the Notes to be delivered for repurchase, which must be $1,000 or an integral multiple thereof;
(iiiv) the portion of the principal amount of Notes to be repurchased, which must be $1,000 or an integral multiple thereof; and
(iiiv) that the Notes are to be repurchased by the Company pursuant to the applicable provisions of the Notes and this Indenture; provided, however, that if the Notes are Global Notes, the Fundamental Change Repurchase Notice must comply with appropriate Depositary procedures. Notwithstanding anything herein to the contrary, any Holder delivering to the Trustee and Paying Agent or Tender Agent, as (if other than the case may be, Trustee) the Fundamental Change Repurchase Notice contemplated by this Section 15.02 shall have the right to withdraw, in whole or in part, such Fundamental Change Repurchase Notice at any time prior to the close of business on the Business Day immediately preceding the Fundamental Change Repurchase Date by delivery of a written notice of withdrawal to the Trustee and Paying Agent or Tender Agent, as (if other than the case may be, Trustee) in accordance with Section 15.03, or in accordance with the customary procedures of the Depository with respect to Global Notes. The Trustee and Paying Agent or Tender Agent, as (if other than the case may be, Trustee) shall promptly notify the Company of the receipt by it of any Fundamental Change Repurchase Notice or written notice of withdrawal thereof.
(c) On or before the 20th Business Day calendar day after the occurrence of the effective date of a Fundamental Change (other than an Exempted Fundamental Change), the Company shall provide to all Holders of Notes and the TrusteeHolders, the Conversion Agent (in the case of a Conversion Agent other than the Trustee) Trustee and the Paying Agent (in the case of a Paying Agent other than the Trustee) a notice (the “Fundamental Change Company Notice”) of the occurrence of the effective date of the such Fundamental Change and of the repurchase right at the option of the Holders arising as a result thereof. In the case of Physical Notes, such notice shall be by first class mail or, in the case of Global Notes, such notice shall be delivered in accordance with the applicable procedures of the Depositary. Simultaneously with providing such notice, the Company shall publish a notice containing the information set forth in the Fundamental Change Company Notice in a newspaper of general circulation in The City of New York or publish such information on the Company’s website website, through a press release or through such other public medium as the Company may use at that time. Each Fundamental Change Company Notice shall specify:
(i) the events causing the Fundamental Change;
(ii) the effective date of the Fundamental Change;
(iii) the last date on which a Holder may exercise the repurchase right pursuant to this Article 15;
(iv) the Fundamental Change Repurchase Price;
(v) the Fundamental Change Repurchase Date;
(vi) the name and address of the Trustee, the Paying Agent or Tender Agent, as (if other than the case may be, Trustee) and the Conversion Agent, if applicable;
(vii) if applicable, the Conversion Rate and any adjustments to the Conversion Rate as a result of the Fundamental ChangeRate;
(viii) that the Notes with respect to which a Fundamental Change Repurchase Notice has been delivered by a Holder may be converted only if the Holder validly withdraws the Fundamental Change Repurchase Notice in accordance with the terms of this Indenture; and
(ix) the procedures that Holders must follow to require the Company to repurchase their Notes. No failure of the Company to give the foregoing notices and no defect therein shall limit the Holders’ repurchase rights or affect the validity of the proceedings for the repurchase of the Notes pursuant to this Section 15.02. At the Company’s request, written request given at least five days prior to the date the Fundamental Change Company Notice two (2) Business Days before such notice is to be sent (or such shorter period as may shall be agreed acceptable to by the Trustee), the Trustee shall give such notice in the Company’s name and at the Company’s expense; provided, however, that, in all cases, the text of such Fundamental Change Company Notice shall be prepared by the Company.
(d) Notwithstanding anything to the contrary in this Article 15, the Company shall not be required to repurchase, or make an offer to repurchase, the Notes upon a Fundamental Change if a third party Person makes such an offer in the same manner, at the same time and otherwise in compliance with the terms and conditions set forth herein applicable to an offer made by the Company to repurchase the Notes upon a Fundamental Change, and such third party purchases all Notes properly surrendered and not validly withdrawn under such offer in the same manner, at the same time and otherwise in compliance with the requirements for such an offer as set forth herein.
(e) Notwithstanding the foregoing, no Notes may be repurchased by the Company on any date at the option of the Holders upon a Fundamental Change if the principal amount of the Notes has been accelerated, and such acceleration has not been rescinded, on or prior to such date (except in the case of an acceleration resulting from a Default by the Company in the payment of the Fundamental Change Repurchase Price with respect to such Notes). The Trustee and Paying Agent or Tender Agent, as (if other than the case may be, Trustee) will promptly return to the respective Holders thereof any Physical Notes held by it during the acceleration of the Notes (except in the case of an acceleration resulting from a Default by the Company in the payment of the Fundamental Change Repurchase Price with respect to such Notes), or any instructions for book-entry transfer of the Notes in compliance with the procedures of the Depositary shall be deemed to have been cancelled, and, upon such return or cancellation, as the case may be, the Fundamental Change Repurchase Notice with respect thereto shall be deemed to have been withdrawn.
(f) Notwithstanding anything to the contrary in this Article 15, the Company shall not be required to send a Fundamental Change Company Notice, or offer to repurchase or repurchase any Notes, in each case, as described in this Section 15.02, in connection with any Exempted Fundamental Change.
Appears in 1 contract
Repurchase at Option of Holders Upon a Fundamental Change. (a) If a Fundamental Change occurs at any time prior to the Maturity Datetime, each Holder shall have the right, at such Holder’s option, to require the Company to repurchase for cash all of such Holder’s Notes, or any portion of the principal amount thereof that is equal to minimum denominations of $1,000 or an integral multiple of $1,000 in excess thereof1,000, on the date (the “Fundamental Change Repurchase Date”) specified by the Company that is not less than 20 calendar days Business Days or more than 35 calendar days Business Days following the date of the Fundamental Change Company Notice at a repurchase price equal to 100% of the principal amount thereof, plus accrued and unpaid interest thereon to, but excluding, the Fundamental Change Repurchase Date (the “Fundamental Change Repurchase Price”), unless the Fundamental Change Repurchase Date falls after a Regular Record Date but on or prior to the Interest Payment Date to which such Regular Record Date relates, in which case the Company shall instead pay the full amount of accrued and unpaid interest (to, but excluding, such Interest Payment Date) to Holders of record as of such Regular Record Date, and the Fundamental Change Repurchase Price shall be equal to 100% of the principal amount of Notes to be repurchased pursuant to this Article 15; provided that . The Fundamental Change Repurchase Date shall be subject to postponement in order to allow the Company shall not be required to repurchase, or to make an offer to repurchase, the Notes upon a Fundamental Change if a third party makes such an offer in the same manner, at the same time and otherwise in compliance comply with the requirements for an offer made by the Company as set forth in this Section 15.02 and such third party purchases all Notes properly surrendered and not validly withdrawn under its offer in the same manner, at the same time and otherwise in compliance with the requirements for an offer made by the Company as set forth in this Section 15.02applicable law.
(b) Repurchases of Notes under this Section 15.02 shall be made, at the option of the Holder thereof, upon:
(i) delivery to the Paying Agent or tender agent appointed to facilitate the repurchase (the “Tender Agent”) by a Holder of a duly completed notice (the “Fundamental Change Repurchase Notice”) in the form set forth in Attachment 2 to the Form of Note attached hereto as Exhibit A, if the Notes are Physical Notes, or in compliance with the Depositary’s procedures Applicable Procedures for surrendering interests in Global Notes, if the Notes are Global Notes, in each case on or before the close of business on the Business Day immediately preceding the Fundamental Change Repurchase Date; and
(ii) delivery of the Notes, if the Notes are Physical Notes, to the Paying Agent or Tender Agent, as the case may be, at any time after delivery of the Fundamental Change Repurchase Notice (together with all necessary endorsements for transfer) at the Corporate Trust Office office of the Paying Agent or the principal office of the Tender Agent located in the United States of America as notified by the Tender Agent to Holders and the Trustee, as applicableAgent, or book-entry transfer of the Notes, if the Notes are Global Notes, in compliance with the procedures Applicable Procedures of the Depositary, in each case such delivery being a condition to receipt by the Holder of the Fundamental Change Repurchase Price therefor. The Fundamental Change Repurchase Xxx Xxxxxxxxxxx Xxxxxx Xxxxxxxxxx Notice in respect of any Notes to be repurchased shall state:
(i) in the case of Physical Notes, the certificate numbers of the Notes to be delivered for repurchase;
(ii) the portion of the principal amount of Notes to be repurchased, which must be $1,000 or an integral multiple thereof; and
(iii) that the Notes are to be repurchased by the Company pursuant to the applicable provisions of the Notes and this Indenture; provided, however, that if the Notes are Global Notes, the Fundamental Change Repurchase Notice must comply with appropriate Depositary proceduresthe Applicable Procedures. Notwithstanding anything herein to the contrary, any Holder delivering to the Paying Agent or Tender Agent, as the case may be, the Fundamental Change Repurchase Notice contemplated by this Section 15.02 shall have the right to withdraw, in whole or in part, such Fundamental Change Repurchase Notice at any time prior to the close of business on the Business Day immediately preceding the Fundamental Change Repurchase Date by delivery of a written notice of withdrawal to the Paying Agent or Tender Agent, as the case may be, in accordance with Section 15.03, or in accordance with the customary procedures of the Depository with respect to Global Notes. The Paying Agent or Tender Agent, as the case may be, shall promptly notify the Company of the receipt by it of any Fundamental Change Repurchase Notice or written notice of withdrawal thereof.
(c) On or before the 20th Business Day after the occurrence of the effective date of a Fundamental Change, the Company shall provide to all Holders of Notes and Notes, the Trustee, the Conversion Agent (in the case of a Conversion Agent if other than the Trustee) and the Paying Agent (in the case of a Paying Agent other than the Trustee) a notice (the “Fundamental Change Company Notice”) of the occurrence of the effective date of the Fundamental Change and of the resulting repurchase right at the option of the Holders arising as a result thereof. In the case of Physical Notes, such notice shall be by first class mail or, in the case of Global Notes, such notice shall be delivered in accordance with the applicable procedures Applicable Procedures of the Depositary. Simultaneously with providing such notice, the Company shall publish a notice containing the information set forth in the Fundamental Change Company Notice on the Company’s website or through such other public medium as the Company may use at that time. Each Fundamental Change Company Notice shall specify:
(i) the events causing the Fundamental Change;
(ii) the effective date of the Fundamental Change;
(iii) the last date on which a Holder may exercise the repurchase right pursuant to this Article 15;
(iv) the Fundamental Change Repurchase Price;
(v) the Fundamental Change Repurchase Date;
(vi) the name and address of the Paying Agent or Tender Agent, as the case may be, and the Conversion Agent, if applicable;
(vii) if applicable, the Conversion Rate and any adjustments to the Conversion Rate as a result of the Fundamental ChangeRate;
(viii) that the Notes with respect to which a Fundamental Change Repurchase Notice has been delivered by a Holder may be converted only if the Holder validly withdraws the Fundamental Change Repurchase Notice in accordance with the terms of this Indenture; and
(ix) the procedures that Holders must follow to require the Company to repurchase their Notes. No failure of the Company to give the foregoing notices and no defect therein shall limit the Holders’ repurchase rights or affect the validity of the proceedings for the repurchase of the Notes pursuant to this Section 15.02. Simultaneously with providing such notice, the Company will publish such information on its website or through such other public medium as the Company may use at that time. At the Company’s request, given at least five days prior to the date the Fundamental Change Company Notice is to be sent (or such shorter period as may be agreed to by the Trustee), the Trustee Paying Agent shall give such notice in the Company’s name and at the Company’s expense; provided, however, that, in all cases, the text of such Fundamental Change Company Notice shall be prepared by the Company.
(d) Notwithstanding the foregoing, no Notes may be repurchased by the Company on any date at the option of the Holders upon in connection with a Fundamental Change if the principal amount of the Notes has been accelerated, and such acceleration has not been rescinded, on or prior to such date (except in the case of an acceleration resulting from a Default by the Company in the payment of the Fundamental Change Repurchase Price with respect to such Notes). The Paying Agent or Tender Agent, as the case may be, will promptly return to the respective Holders thereof any Physical Notes held by it during the acceleration of the Notes (except in the case of an acceleration resulting from a Default by the Company in the payment of the Fundamental Change Repurchase Price with respect to such Notes), or any instructions for book-entry transfer of the Notes in compliance with the procedures of the Depositary Applicable Procedures shall be deemed to have been cancelled, and, upon such return or cancellation, as the case may be, the Fundamental Change Repurchase Notice with respect thereto shall be deemed to have been withdrawn.
(e) Notwithstanding anything to the contrary in this Indenture, the Company shall not be required to repurchase, or to make an offer to repurchase, the Notes upon a Fundamental Change if a third party makes such an offer in the same manner, at the same time and otherwise in compliance with the requirements for an offer made by the Company as set forth in this Article 15, and such third party purchases all Notes properly surrendered and not validly withdrawn under its offer in the same manner, at the same time and otherwise in compliance with the requirements for an offer made by the Company as set forth in this Article 15.
(f) For purposes of this Article 15, the Paying Agent may be any agent, depositary, tender agent, paying agent or other agent appointed by the Company to accomplish the purposes set forth herein.
Appears in 1 contract
Samples: Indenture (Zendesk, Inc.)
Repurchase at Option of Holders Upon a Fundamental Change. (a) If a Fundamental Change occurs at any time prior to the Maturity Datetime, each Holder shall have the right, at such Holder’s option, to require the Company to repurchase for cash all of such Holder’s Notes, or any portion thereof that is equal to minimum denominations of $1,000 or an integral multiple of $1,000 in excess thereof1,000, on the date (the “Fundamental Change Repurchase Date”) specified by the Company that is not less than 20 calendar days Business Days or more than 35 calendar days following Business Days (subject to extension if required by law) after the date of on which the Fundamental Change Company Repurchase Right Notice is mailed to the Trustee and to each Holder at a repurchase price equal to 100% of the principal amount thereof, plus accrued and unpaid interest thereon to, but excluding, the Fundamental Change Repurchase Date (the “Fundamental Change Repurchase Price”), unless the Fundamental Change Repurchase Date falls after a Regular Record Date but on or prior to the Interest Payment Date to which such Regular Record Date relates, in which case the Company shall instead pay the full amount of accrued and unpaid interest (to, but excluding, such Interest Payment Date) to Holders of record as of such Regular Record Date, and the Fundamental Change Repurchase Price shall be equal to 100% of the principal amount of Notes to be repurchased pursuant to this Article 15; provided that the Company 11 and shall not be required to repurchase, or to make an offer to repurchase, the Notes upon a Fundamental Change if a third party makes such an offer in the same manner, at the same time include any accrued and otherwise in compliance with the requirements for an offer made by the Company as set forth in this Section 15.02 and such third party purchases all Notes properly surrendered and not validly withdrawn under its offer in the same manner, at the same time and otherwise in compliance with the requirements for an offer made by the Company as set forth in this Section 15.02unpaid interest.
(b) Repurchases of Notes under this Section 15.02 11.02 shall be made, at the option of the Holder thereof, upon:
(i) delivery to the Paying Agent or tender agent appointed to facilitate the repurchase (the “Tender Agent”) by a Holder of a duly completed notice (the “Fundamental Change Repurchase Exercise Notice”) in the form set forth in Attachment 2 to the Form of Note attached hereto as Exhibit A, if the Notes are Physical Notesevidenced by Individual Securities, or in compliance with the Depositary’s procedures for surrendering interests in Notes evidenced by Global NotesSecurities, if the Notes are evidenced by Global NotesSecurities, in each case on case, during the period beginning on, and including, the date the Company mails (or before otherwise delivers) to the Trustee and each Holder the Fundamental Change Repurchase Right Notice (or, if earlier, the tenth Business Day immediately following the occurrence of the relevant Fundamental Change) and ending at the close of business on the Business Day immediately preceding the Fundamental Change Repurchase Date; and
(ii) delivery of the Notes, if the Notes are Physical Notesevidenced by Individual Securities, to the Paying Agent or Tender Agent, as the case may be, at any time after delivery of the Fundamental Change Repurchase Exercise Notice (together with all necessary endorsements for transfer) at the Corporate Trust Office of the Paying Agent or the principal office of the Tender Agent located in the United States of America as notified by the Tender Agent to Holders and the Trustee, as applicableAgent, or book-entry transfer of the Notes, if the Notes are evidenced by Global NotesSecurities, in compliance with the procedures of the Depositary, in each case case, such delivery being a condition to receipt by the Holder of the Fundamental Change Repurchase Price therefor. The Fundamental Change Repurchase Xxx Xxxxxxxxxxx Xxxxxx Xxxxxxxxxx Exercise Notice in respect of any Notes to be repurchased shall state:
(i) in the case of Physical NotesNotes evidenced by Individual Securities, the certificate numbers of the Notes to be delivered for repurchase;
(ii) the portion of the principal amount of Notes to be repurchased, which must be $1,000 or an integral multiple thereof; and
(iii) that the Notes are to be repurchased by the Company pursuant to the applicable provisions of the Notes and this the Indenture; provided, however, that if the Notes are evidenced by Global NotesSecurities, the Fundamental Change Repurchase Exercise Notice must comply with appropriate Depositary procedures. Notwithstanding anything herein to the contrary, any Holder delivering to the Paying Agent or Tender Agent, as the case may be, the Fundamental Change Repurchase Exercise Notice contemplated by this Section 15.02 11.02 shall have the right to withdraw, in whole or in part, such Fundamental Change Repurchase Exercise Notice at any time prior to the close of business on the Business Day immediately preceding the Fundamental Change Repurchase Date by delivery of a written notice of withdrawal to the Paying Agent or Tender Agent, as the case may be, in accordance with Section 15.03, or in accordance with the customary procedures of the Depository with respect to Global Notes11.03. The Paying Agent or Tender Agent, as the case may be, shall promptly notify the Company of the receipt by it of any Fundamental Change Repurchase Exercise Notice or written notice of withdrawal thereof.
(c) On or before the 20th 10th Business Day after the occurrence of the effective date of a Fundamental Change, the Company shall provide to all Holders of Notes and the Trustee, the Conversion Agent (in the case of a Conversion Agent other than the Trustee) Trustee and the Paying Agent (in the case of a Paying Agent other than the Trustee) a notice (the “Fundamental Change Company Repurchase Right Notice”) of the occurrence of the effective date of the Fundamental Change and of the repurchase right at the option of the Holders arising as a result thereof. In the case of Physical NotesNotes evidenced by Individual Securities, such notice shall be by first class mail or, in the case of Notes evidenced by Global NotesSecurities, such notice shall be delivered in accordance with the applicable procedures of the Depositary. Simultaneously with providing such notice, the Company shall publish a notice containing the information set forth in the Fundamental Change Company Repurchase Right Notice on the Company’s website or through such other public medium as the Company may use at that time. Each Fundamental Change Company Repurchase Right Notice shall specify:
(i) the events causing the Fundamental Change;
(ii) the effective date of the Fundamental Change, and whether the Fundamental Change is a Make-Whole Adjustment Event;
(iii) information about the Holders’ right to convert the Notes;
(iv) information about the Holders’ right to require the Company to repurchase the Notes pursuant to this Article 11.
(v) the last date on which a Holder may exercise the repurchase right pursuant to this Article 1511;
(ivvi) the Fundamental Change Repurchase Price;
(vvii) the Fundamental Change Repurchase Date;
(viviii) the Base Conversion Rate and the Incremental Share Factor and any adjustments to the Daily Conversion Rate Fractions, the Base Conversion Rate and/or the Incremental Share Factor in accordance with Article 10;
(ix) the procedures required for exercise of the repurchase option upon the Fundamental Change;
(x) the name and address of the Paying Agent or Tender Agent, as the case may be, and the Conversion Agent, if applicable;; and
(vii) if applicable, the Conversion Rate and any adjustments to the Conversion Rate as a result of the Fundamental Change;
(viiixi) that the Notes with respect to which a Fundamental Change Repurchase Exercise Notice has been delivered by a Holder may be converted only if the Holder validly withdraws the Fundamental Change Repurchase Exercise Notice in accordance with the terms of this the Indenture; and
(ix) the procedures that Holders must follow to require the Company to repurchase their Notes. No failure of the Company to give the foregoing notices and no defect therein shall limit the Holders’ repurchase rights or affect the validity of the proceedings for the repurchase of the Notes pursuant to this Section 15.0211.02. At the Company’s request, given at least five days prior to the date the Fundamental Change Company Notice is to be sent (or such shorter period as may be agreed to by the Trustee), the Trustee shall give such notice in the Company’s name and at the Company’s expense; provided, however, that, in all cases, the text of such Fundamental Change Company Repurchase Right Notice shall be prepared by the Company.
(d) Notwithstanding the foregoing, no Notes may be repurchased by the Company on any date at the option of the Holders upon a Fundamental Change if the principal amount of the Notes has been accelerated, and such acceleration has not been rescinded, on or prior to such date (except in the case of an acceleration resulting from a Default by the Company in the payment of the Fundamental Change Repurchase Price with respect to such Notes). The Paying Agent or Tender Agent, as the case may be, will promptly return to the respective Holders thereof any Physical Notes evidenced by Individual Securities held by it during the acceleration of the Notes (except in the case of an acceleration resulting from a Default by the Company in the payment of the Fundamental Change Repurchase Price with respect to such Notes), or any instructions for book-entry transfer of the Notes in compliance with the procedures of the Depositary shall be deemed to have been cancelled, and, upon such return or cancellation, as the case may be, the Fundamental Change Repurchase Exercise Notice with respect thereto shall be deemed to have been withdrawn.
Appears in 1 contract
Samples: First Supplemental Indenture (Stillwater Mining Co /De/)
Repurchase at Option of Holders Upon a Fundamental Change. (a) If a Fundamental Change occurs at any time prior to the Maturity Date, each Holder shall have the right, at such Holder’s option, to require the Company to repurchase for cash all of such Holder’s Notes, or any portion thereof that is equal to minimum denominations of $1,000 or an integral multiple of $1,000 in excess thereof, on the date (the “Fundamental Change Repurchase Date”) specified by the Company that is not less than 20 calendar days Business Days or more than 35 calendar days Business Days following the date of the Fundamental Change Company Notice at a repurchase price equal to 100% of the principal amount thereof, plus accrued and unpaid interest thereon to, but excluding, the Fundamental Change Repurchase Date (the “Fundamental Change Repurchase Price”), unless the Fundamental Change Repurchase Date falls after a Regular Record Date but on or prior to the Interest Payment Date to which such Regular Record Date relates, in which case the Company shall instead pay the full amount of accrued and unpaid interest (to, but excluding, such Interest Payment Date) to Holders of record as of such Regular Record Date, and the Fundamental Change Repurchase Price shall be equal to 100% of the principal amount of Notes to be repurchased pursuant to this Article 15; provided that . The Fundamental Change Repurchase Date shall be subject to postponement in order to allow the Company shall not be required to repurchase, or comply with applicable law as a result of changes to make an offer to repurchase, such applicable law occurring after the Notes upon a Fundamental Change if a third party makes such an offer in the same manner, at the same time and otherwise in compliance with the requirements for an offer made by the Company as set forth in date of this Section 15.02 and such third party purchases all Notes properly surrendered and not validly withdrawn under its offer in the same manner, at the same time and otherwise in compliance with the requirements for an offer made by the Company as set forth in this Section 15.02Indenture.
(b) Repurchases of Notes under this Section 15.02 shall be made, at the option of the Holder thereof, upon:
(i) delivery to the Paying Agent or tender agent appointed to facilitate the repurchase (the “Tender Agent”) by a Holder of a duly completed notice (the “Fundamental Change Repurchase Notice”) in the form set forth in Attachment 2 to the Form of Note attached hereto as Exhibit A, if the Notes are Physical Notes, or in compliance with the Depositary’s procedures for surrendering interests in Global Notes, if the Notes are Global Notes, in each case on or before the close of business on the Business Day immediately preceding the Fundamental Change Repurchase Date; and
(ii) delivery of the Notes, if the Notes are Physical Notes, to the Paying Agent or Tender Agent, as the case may be, at any time after delivery of the Fundamental Change Repurchase Notice (together with all necessary endorsements for transfer) at the Corporate Trust Office of the Paying Agent or the principal office of the Tender Agent located in the United States of America as notified by the Tender Agent to Holders and the Trustee, as applicableAgent, or book-entry transfer of the Notes, if the Notes are Global Notes, in compliance with the procedures of the Depositary, in each case such delivery being a condition to receipt by the Holder of the Fundamental Change Repurchase Price therefor. The Fundamental Change Repurchase Notice in respect of any Notes to be repurchased shall state:
(i) in the case of Physical Notes, the certificate numbers of the Notes to be delivered for repurchase;
(ii) the portion of the principal amount of Notes to be repurchased, which must be $1,000 or an integral multiple thereof; and
(iii) that the Notes are to be repurchased by the Company pursuant to the applicable provisions of the Notes and this Indenture; provided, however, that if the Notes are Global Notes, the Fundamental Change Repurchase Notice must comply with appropriate applicable Depositary procedures. Notwithstanding anything herein to the contrary, any Holder delivering to the Paying Agent or Tender Agent, as the case may be, the Fundamental Change Repurchase Notice contemplated by this Section 15.02 shall have the right to withdraw, in whole or in part, such Fundamental Change Repurchase Notice at any time prior to the close of business on the Business Day immediately preceding the Fundamental Change Repurchase Date by delivery of a written notice of withdrawal to the Paying Agent or Tender Agent, as the case may be, in accordance with Section 15.03, or in accordance with the customary procedures of the Depository with respect to Global Notes. The Paying Agent or Tender Agent, as the case may be, shall promptly notify the Company of the receipt by it of any Fundamental Change Repurchase Notice or written notice of withdrawal thereof.
(c) On or before the 20th Business Day after the occurrence of the effective date of a Fundamental Change, the Company shall provide to all Holders of Notes and the Trustee, the Conversion Agent (in the case of a Conversion Agent other than the Trustee) and the Paying Agent (in the case of a Paying Agent other than the Trustee) a notice (the “Fundamental Change Company Notice”) of the occurrence of the effective date of the Fundamental Change and of the repurchase right at the option of the Holders arising as a result thereof. In the case of Physical Notes, such notice shall be by first class mail or, in the case of Global Notes, such notice shall be delivered in accordance with the applicable procedures of the Depositary. Simultaneously with providing such notice, the Company shall publish a notice containing the information set forth in the Fundamental Change Company Notice on the Company’s website or through such other public medium as the Company may use at that time. Each Fundamental Change Company Notice shall specify:
(i) the events causing the Fundamental Change;
(ii) the effective date of the Fundamental Change;
(iii) the last date on which a Holder may exercise the repurchase right pursuant to this Article 15;
(iv) the Fundamental Change Repurchase Price;
(v) the Fundamental Change Repurchase Date;
(vi) the name and address of the Paying Agent or Tender Agent, as the case may be, and the Conversion Agent, if applicable;
(vii) if applicable, the Conversion Rate and any adjustments to the Conversion Rate as a result of the Fundamental Change;
(viii) that the Notes with respect to which a Fundamental Change Repurchase Notice has been delivered by a Holder may be converted only if the Holder validly withdraws the Fundamental Change Repurchase Notice in accordance with the terms of this Indenture; and
(ix) the procedures that Holders must follow to require the Company to repurchase their Notes. No failure of the Company to give the foregoing notices and no defect therein shall limit the Holders’ repurchase rights or affect the validity of the proceedings for the repurchase of the Notes pursuant to this Section 15.02. At the Company’s request, given at least five days prior to the date the Fundamental Change Company Notice is to be sent (or such shorter period as may be agreed to by the Trustee), the Trustee shall give such notice in the Company’s name and at the Company’s expense; provided, however, that, in all cases, the text of such Fundamental Change Company Notice shall be prepared by the Company.
(d) Notwithstanding the foregoing, no Notes may be repurchased by the Company on any date at the option of the Holders upon a Fundamental Change if the principal amount of the Notes has been accelerated, and such acceleration has not been rescinded, on or prior to such date (except in the case of an acceleration resulting from a Default by the Company in the payment of the Fundamental Change Repurchase Price with respect to such Notes). The Paying Agent or Tender Agent, as the case may be, will promptly return to the respective Holders thereof any Physical Notes held by it during the acceleration of the Notes (except in the case of an acceleration resulting from a Default by the Company in the payment of the Fundamental Change Repurchase Price with respect to such Notes), or any instructions for book-entry transfer of the Notes in compliance with the procedures of the Depositary shall be deemed to have been cancelled, and, upon such return or cancellation, as the case may be, the Fundamental Change Repurchase Notice with respect thereto shall be deemed to have been withdrawn.at
Appears in 1 contract
Samples: Indenture (NantHealth, Inc.)
Repurchase at Option of Holders Upon a Fundamental Change. (a).
(a) If a Fundamental Change occurs at any time prior to the Maturity Date, each Holder shall have the right, at such Holder’s option, to require the Company to repurchase for cash all of such Holder’s Notes, or any portion of the principal amount thereof that is equal to minimum denominations of $1,000 or an integral multiple of $1,000 in excess thereofAuthorized Denomination, on the date (the “Fundamental Change Repurchase Date”) specified by the Company that is not less than 20 calendar days or nor more than 35 calendar days following the date of the Fundamental Change Company Notice (subject to extension if required to comply with applicable law), at a repurchase price equal to 100% of the principal amount thereof, plus accrued and unpaid interest thereon to, but excludingnot including, the Fundamental Change Repurchase Date (the “Fundamental Change Repurchase Price”), unless the Fundamental Change Repurchase Date falls after a Regular Record Date but on or prior to the Interest Payment Date to which such Regular Record Date relates, in which case the Company shall instead pay the full amount of accrued and unpaid interest (to, but excluding, such Interest Payment Date) to Holders of record as of such Regular Record Date, and the Fundamental Change Repurchase Price shall be equal to 100% of the principal amount of Notes to be repurchased purchased pursuant to this Article 15; provided that the Company shall not be required to repurchase, or to make an offer to repurchase, the Notes upon a Fundamental Change if a third party makes such an offer in the same manner, at the same time and otherwise in compliance with the requirements for an offer made by the Company as set forth in this Section 15.02 and such third party purchases all Notes properly surrendered and not validly withdrawn under its offer in the same manner, at the same time and otherwise in compliance with the requirements for an offer made by the Company as set forth in this Section 15.02.
(b) Repurchases of Notes under this Section 15.02 shall be made, at the option of the Holder thereof, upon:
(i) delivery to the Paying Agent or tender agent appointed to facilitate the repurchase (the “Tender Agent”) by a Holder of a duly completed notice (the “Fundamental Change Repurchase Notice”) in the form set forth in Attachment 2 to the Form of Note attached hereto as Exhibit A, if the Notes are Physical Certificated Notes, or in compliance with the Depositary’s procedures Applicable Procedures for surrendering interests in Global Notes, if the Notes are Global Notes, in each case on or before the close of business on the Business Day immediately preceding the Fundamental Change Repurchase Date; and
(ii) delivery of the Notes, if the Notes are Physical Certificated Notes, to the Paying Agent on or Tender Agent, as before the case may be, at any time after delivery close of business on the Business Day immediately preceding the Fundamental Change Repurchase Notice Date (together with all necessary endorsements for transfer) at the Corporate Trust Office of the Paying Agent or the principal office of the Tender Agent located in the United States of America as notified by the Tender Agent to Holders and the Trustee, as applicableAgent, or book-entry transfer of the Notes, if the Notes are Global Notes, in compliance with the procedures of the DepositaryApplicable Procedures, in each case such delivery being a condition to receipt by the Holder of the Fundamental Change Repurchase Price therefor. The Fundamental Change Repurchase Notice in respect of any Notes to be repurchased shall state:
(i) A. in the case of Physical Certificated Notes, the certificate numbers of the Notes to be delivered for repurchase;
(ii) B. the portion of the principal amount of Notes to be repurchased, which must be $1,000 or an integral multiple of $1,000 in excess thereof; and
(iii) C. that the Notes are to be repurchased purchased by the Company pursuant to the applicable provisions of the Notes and this Indenture; provided, however, that if the Notes are Global Notes, the Fundamental Change Repurchase Notice must comply with appropriate Depositary proceduresthe Applicable Procedures. Notwithstanding anything herein to the contrary, any Holder delivering to the Paying Agent or Tender Agent, as the case may be, the Fundamental Change Repurchase Notice contemplated by this Section 15.02 shall have the right to withdraw, in whole or in part, such Fundamental Change Repurchase Notice at any time prior to the close of business on the Business Day immediately preceding the Fundamental Change Repurchase Date by delivery of a written notice of withdrawal to the Paying Agent or Tender Agent, as the case may be, in accordance with Section 15.03. If a Holder has already delivered a Fundamental Change Repurchase Notice with respect to a Note, or such Holder may not surrender such Note for conversion until such Holder has validly withdrawn such Fundamental Change Repurchase Notice (or, in the case of a Global Note, has complied with the Applicable Procedures with respect to such a withdrawal) in accordance with the customary procedures terms of the Depository with respect to Global NotesSection 15.03. The Paying Agent or Tender Agent, as the case may be, shall promptly notify the Company of the receipt by it of any Fundamental Change Repurchase Notice or written notice of withdrawal thereof.
(c) On or before the 20th Business Day calendar day after the occurrence of the effective date of a Fundamental Change, the Company shall provide to all Holders of Notes and the Trustee, the Conversion Agent (in the case of a Conversion Agent other than the Trustee) Trustee and the Paying Agent (in the case of a Paying Agent if other than the Trustee) a written notice (the “Fundamental Change Company Notice”) of the occurrence of the effective date of the Fundamental Change and of the repurchase right at the option of the Holders arising as a result thereof. In the case of Physical Notes, such notice shall be by first class mail or, in the case of Global Notes, such notice shall be delivered in accordance with the applicable procedures of the Depositary. Simultaneously with providing such notice, the Company shall publish a notice containing the information set forth in the Fundamental Change Company Notice on the Company’s website or through such other public medium as the Company may use at that time. Each Fundamental Change Company Notice shall specify:
(i) the events causing the Fundamental Change;
(ii) the effective date Event Effective Date of the Fundamental Change;
(iii) the last date on which a Holder may exercise the repurchase right pursuant to this Article 15;
(iv) the Fundamental Change Repurchase Price;
(v) the Fundamental Change Repurchase Date;
(vi) the name and address of the Paying Agent or Tender Agent, as the case may be, and the Conversion Agent, if applicable;
(vii) if applicable, the Conversion Rate and any adjustments to the Conversion Rate as a result of the Fundamental ChangeRate;
(viii) that the Notes with respect to which a Fundamental Change Repurchase Notice has been delivered by a Holder may be converted only if the Holder validly withdraws the Fundamental Change Repurchase Notice in accordance with the terms of this Indenture; andIndenture (or, in the case of a Global Note, complies with the Applicable Procedures with respect to such a withdrawal);
(ix) the procedures that Holders must follow to require the Company to repurchase their Notes; and
(x) the CUSIP numbers and the statement required in Section 2.09 hereto. No failure of Simultaneously with providing such Fundamental Change Company Notice, the Company to give shall (A) issue a press release containing such information or disclose the foregoing notices information in a Current Report on Form 8-K and no defect therein shall limit (B) post such information on the Holders’ repurchase rights or affect the validity of the proceedings for the repurchase of the Notes pursuant to this Section 15.02Company’s website. At the Company’s written request, given at least five days prior to the date the Fundamental Change Company Notice is to be sent (or such shorter period as may be agreed to by the Trustee), the Trustee shall give such notice in the Company’s name and at the Company’s expense; provided, however, that, in all cases, the text of such Fundamental Change Company Notice shall be prepared by the Company. In such a case, the Company shall deliver such notice to the Trustee at least three Business Days prior to the date that the notice is required to be given to the Holders (unless a shorter notice period shall be agreed to by the Trustee), together with an Officer’s Certificate requesting that the Trustee give such notice. Such notice shall be delivered to the Trustee, to the Paying Agent (if other than the Trustee) and to each Holder at its address shown in the Note Register (and to the beneficial owner as required by applicable law) or, in the case of Global Notes, in accordance with the Applicable Procedures. No failure of the Company to give the foregoing notices and no defect therein shall limit the Holders’ repurchase rights or affect the validity of the proceedings for the repurchase of the Notes pursuant to this Section 15.02.
(d) Notwithstanding the foregoing, no Notes may be repurchased by the Company on any date at the option of the Holders upon a Fundamental Change if the principal amount of the Notes has been accelerated, and such acceleration has not been rescinded, on or prior to such date (except in the case of an acceleration resulting from a Default by the Company in the payment of the Fundamental Change Repurchase Price with respect to such Notes). The Paying Agent or Tender Agent, as the case may be, will promptly return to the respective Holders thereof any Physical Certificated Notes held by it during the acceleration of the Notes (except in the case of an acceleration resulting from a Default by the Company in the payment of the Fundamental Change Repurchase Price with respect to such Notes), or any instructions for book-entry transfer of the Notes in compliance with the procedures of the Depositary Applicable Procedures shall be deemed to have been cancelled, and, upon such return or cancellation, as the case may be, the Fundamental Change Repurchase Notice with respect thereto shall be deemed to have been withdrawn.
(e) Notwithstanding anything to the contrary in this Section 15.02, the Company shall not be required to repurchase, or to make an offer to repurchase, Notes upon a Fundamental Change:
(i) if a third party makes such an offer in the same manner, at the same time, and otherwise in compliance with the requirements for an offer made by the Company set forth in this Indenture and such third party purchases all Notes properly surrendered and not validly withdrawn under its offer in the same manner, at the same time, and otherwise in compliance with the requirements for an offer made by the Company set forth in this Indenture; or
(ii) pursuant to clause (b) of the definition thereof (or a Fundamental Change pursuant to clause (a) that also results in a Fundamental Change pursuant to clause (b)), if (i) such Fundamental Change results in the Notes becoming convertible (pursuant to the provisions described in Section 14.07) into an amount of cash per Note that is greater (A) than the Fundamental Change Repurchase Price (assuming the maximum amount of accrued interest would be payable based on the latest possible Fundamental Change Repurchase Date), plus (B) to the extent that the 35th Trading Day immediately following the Event Effective Date of such Fundamental Change is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date, the full amount of interest payable per Note on such Interest Payment Date and (ii) the Company provides timely notice of the Holders’ right to convert their Notes based on such Fundamental Change as described in Section 14.01(b)(iii) (the requirements set forth in clauses (i) and (ii) of this Section 15.02(d)(ii), the “Adequate Cash Conversion Provisions”).
Appears in 1 contract
Samples: Indenture (Carnival PLC)
Repurchase at Option of Holders Upon a Fundamental Change. (a) If a Fundamental Change (other than an Exempted Fundamental Change) occurs at any time prior to the Maturity Datetime, each Holder shall have the right, at such Holder’s option, to require the Company to repurchase for cash all of such Holder’s Notes, or any portion of the principal amount thereof properly surrendered and not validly withdrawn pursuant to Section 15.03 that is equal to minimum denominations of $1,000 or an integral multiple of $1,000 in excess thereof1,000, on the date (the “Fundamental Change Repurchase Date”) specified by the Company that is not less than 20 calendar days Business Days or more than 35 calendar days Business Days following the date of the Fundamental Change Company Notice at a repurchase price equal to 100% of the principal amount thereof, plus accrued and unpaid interest thereon to, but excluding, the Fundamental Change Repurchase Date (the “Fundamental Change Repurchase Price”), unless the Fundamental Change Repurchase Date falls after a Regular Record Date but on or prior to the Interest Payment Date to which such Regular Record Date relates, in which case the Company shall instead pay the full amount of accrued and unpaid interest (to, but excluding, such Interest Payment Date) to Holders of record as of such Regular Record Date on, or at the Company’s election, before such Interest Payment Date, and the Fundamental Change Repurchase Price shall be equal to 100% of the principal amount of Notes to be repurchased pursuant to this Article 15; provided that the Company shall not be required to repurchase, or to make an offer to repurchase, the Notes upon a Fundamental Change if a third party makes such an offer in the same manner, at the same time and otherwise in compliance with the requirements for an offer made by the Company as set forth in this Section 15.02 and such third party purchases all Notes properly surrendered and not validly withdrawn under its offer in the same manner, at the same time and otherwise in compliance with the requirements for an offer made by the Company as set forth in this Section 15.02.
(b) Repurchases of Notes under this Section 15.02 shall be made, at the option of the Holder thereof, upon:
(i) delivery to the Paying Agent or tender agent appointed to facilitate the repurchase (the “Tender Agent”) by a Holder of a duly completed notice (the “Fundamental Change Repurchase Notice”) in the form set forth in Attachment 2 to the Form of Note attached hereto as Exhibit A, if the Notes are Physical Notes, or in compliance with the Depositary’s applicable procedures for surrendering interests in Global Notes, if the Notes are Global Notes, in each case case, on or before the close of business on the Business Day immediately preceding the Fundamental Change Repurchase Date; and
(ii) delivery of the Notes, if the Notes are Physical Notes, to the Paying Agent or Tender Agent, as the case may be, at any time after delivery of the Fundamental Change Repurchase Notice (together with all necessary endorsements for transfer) at the Corporate Trust Office of the Paying Agent or the principal office of the Tender Agent located in the United States of America as notified by the Tender Agent to Holders and the Trustee, as applicableAgent, or book-entry transfer of the Notes, if the Notes are Global Notes, in compliance with the applicable procedures of the Depositary, in each case case, such delivery or transfer being a condition to receipt by the Holder of the Fundamental Change Repurchase Price therefor. The Fundamental Change Repurchase Notice in respect of any Physical Notes to be repurchased shall state:
(iiii) in the case of Physical Notes, the certificate numbers of the Notes to be delivered for repurchase;
(iiiv) the portion of the principal amount of Notes to be repurchased, which must be $1,000 or an integral multiple thereof; and
(iiiv) that the Notes are to be repurchased by the Company pursuant to the applicable provisions of the Notes and this Indenture; provided, however, that if . If the Notes are Global Notes, to exercise the Fundamental Change Repurchase Notice repurchase right, Holders must comply surrender their Notes in accordance with appropriate applicable Depositary procedures. Notwithstanding anything herein to the contrary, any Holder delivering to the Paying Agent or Tender Agent, as the case may be, the Fundamental Change Repurchase Notice contemplated by this Section 15.02 shall have the right to withdraw, in whole or in part, such Fundamental Change Repurchase Notice at any time prior to the close of business on the Business Day immediately preceding the Fundamental Change Repurchase Date by delivery of a written notice of withdrawal to the Paying Agent or Tender Agent, as the case may be, in accordance with Section 15.03, or in accordance with the customary procedures of the Depository with respect to Global Notes. The Paying Agent or Tender Agent, as the case may be, shall promptly notify the Company of the receipt by it of any Fundamental Change Repurchase Notice or written notice of withdrawal thereof.
(c) On or before the 20th Business Day after the occurrence of the effective date of a Fundamental Change, the Company shall provide to all Holders of Notes and Holders, the Trustee, the Conversion Agent (in the case of a Conversion Paying Agent other than the Trustee) and the Paying Agent (in the case of a Paying Agent other than the Trustee) a written notice (the “Fundamental Change Company Notice”) of the occurrence of the effective date of the Fundamental Change and of the repurchase right at the option of the Holders arising as a result thereof. In the case of Physical Notes, such notice shall be by first class mail or, in the case of Global Notes, such notice shall be delivered in accordance with the applicable procedures of the Depositary. Simultaneously with providing such notice, the Company shall publish a notice containing the information set forth in the Fundamental Change Company Notice on the Company’s website or through such other public medium as the Company may use at that time. Each Fundamental Change Company Notice shall specify:
(i) the events causing the Fundamental Change;
(ii) the effective date of the Fundamental Change;
(iii) the last date on which a Holder may exercise the repurchase right pursuant to this Article 15;
(iv) the Fundamental Change Repurchase Price;
(v) the Fundamental Change Repurchase Date;
(vi) the name and address of the Paying Agent or Tender Agent, as the case may be, and the Conversion Agent, if applicable;
(vii) if applicable, the Conversion Rate and any adjustments to the Conversion Rate as a result of the Fundamental Change (or related Make-Whole Fundamental Change);
(viii) that the Notes with respect to which a Fundamental Change Repurchase Notice has been delivered by a Holder may be converted only if the Holder validly withdraws the Fundamental Change Repurchase Notice in accordance with the terms of this Indenture; and
(ix) the procedures that Holders must follow to require the Company to repurchase their Notes. No failure of the Company to give the foregoing notices and no defect therein shall limit the Holders’ repurchase rights or affect the validity of the proceedings for the repurchase of the Notes pursuant to this Section 15.02. At the Company’s request, given at least received by the Trustee not less than five days Business Days written prior to the date the such Fundamental Change Company Notice is to be sent (or such shorter period of time as may be agreed acceptable to by the Trustee), the Trustee shall give such notice in the Company’s name and at the Company’s expense; provided, however, that, in all cases, the text of such Fundamental Change Company Notice shall be prepared by the Company.
(d) Notwithstanding anything to the contrary in this Article 15, the Company shall not be required to repurchase, or to make an offer to repurchase, the Notes upon a Fundamental Change if a third party makes such an offer in the same manner, at the same time and otherwise in compliance with the requirements for an offer made by the Company as set forth in this Article 15 and such third party purchases all Notes properly surrendered and not validly withdrawn under its offer in the same manner, at the same time and otherwise in compliance with the requirements for an offer made by the Company as set forth above.
(e) Notwithstanding the foregoing, no Notes may be repurchased by the Company on any date at the option of the Holders upon a Fundamental Change if the principal amount of the Notes has been accelerated, and such acceleration has not been rescinded, on or prior to such date (except in the case of an acceleration resulting from a Default by the Company in the payment of the Fundamental Change Repurchase Price with respect to such Notes). The Paying Agent or Tender Agent, as the case may be, will promptly return to the respective Holders thereof any Physical Notes held by it during the acceleration of the Notes (except in the case of an acceleration resulting from a Default by the Company in the payment of the Fundamental Change Repurchase Price with respect to such Notes), or any instructions for book-entry transfer of the Notes in compliance with the applicable procedures of the Depositary shall be deemed to have been cancelled, and, upon such return or cancellation, as the case may be, the Fundamental Change Repurchase Notice with respect thereto shall be deemed to have been withdrawn.
(f) Notwithstanding anything to the contrary in this Section 15.02, the Company shall not be required to send a Fundamental Change Company Notice, or offer to repurchase or repurchase any Notes, as set forth in this Article 15, in connection with a Fundamental Change occurring pursuant to clause (b)(A) or (B) (or pursuant to clause (a) that also constitutes a Fundamental Change occurring pursuant to clause (b)(A) or (B)) of the definition thereof, if: (i) such Fundamental Change constitutes a Share Exchange Event whose Reference Property consists entirely of cash in U.S. dollars; (ii) immediately after such Fundamental Change, the Notes become convertible (pursuant to Section 14.07 and, if applicable, Section 14.03) into consideration that consists solely of U.S. dollars in an amount per $1,000 principal amount of Notes that equals or exceeds the Fundamental Change Repurchase Price per $1,000 principal amount of Notes (calculated assuming that the same includes the maximum amount of accrued but unpaid interest payable as part of the Fundamental Change Repurchase Price for such Fundamental Change); and (iii) the Company timely sends the notice relating to such Fundamental Change required pursuant to Section 14.01(b)(iii). Any Fundamental Change with respect to which, in accordance with the provisions described in this Section 15.02(f), the Company is not required to offer to repurchase any Notes is referred to as herein as an “Exempted Fundamental Change.”
Appears in 1 contract
Samples: Indenture (Rapid7, Inc.)
