Repurchase at Option of the Holder Upon a Fundamental Change. (a) Subject to the satisfaction of the requirements of this Article 3, if a Fundamental Change occurs at any time, each Holder shall have the right, at its option, to require the Company to repurchase all of its Notes, or any portion of the principal amount thereof that is equal to $1,000 or an integral multiple of $1,000, on a date (the “Fundamental Change Repurchase Date”) of the Company’s choosing that is not less than 15 nor more than 35 days after the date of the Fundamental Change Repurchase Right Notice. The Fundamental Change repurchase price the Company is required to pay (the “Fundamental Change Repurchase Price”) is equal to 100% of the principal amount of the Notes to be repurchased plus accrued and unpaid interest, if any, to, but not including, the Fundamental Change Repurchase Date; provided that if the Fundamental Change Repurchase Date falls after a Regular Record Date and on or prior to the Interest Payment Date to which it relates, the Company shall instead pay the full amount of accrued and unpaid interest to the Holder of record at 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 the Notes to be repurchased. Any Notes so repurchased by the Company shall be paid for in cash. (b) In addition to any notice obligation the Company may have under Section 4.01(e) or Section 4.04(a), after the occurrence of a Fundamental Change, but on or before the 15th day following such occurrence, the Company shall notify all Holders of the Notes and the Trustee and Conversion Agent (if other than the Trustee) and the Paying Agent, in writing, of the occurrence of the Fundamental Change and of the resulting repurchase right, if any (the “Fundamental Change Repurchase Right Notice”). Such Fundamental Change Repurchase Right Notice shall state: (i) the events causing the Fundamental Change; (ii) the date of the Fundamental Change; (iii) the last date on which a Holder may exercise the repurchase right, if applicable; (iv) the Fundamental Change Repurchase Price, if applicable; (v) the Fundamental Change Repurchase Date, if applicable; (vi) the name and address of the Paying Agent and the Conversion Agent, if applicable; (vii) the applicable Conversion Rate and any adjustments to the applicable Conversion Rate; (viii) that the Notes with respect to which a Repurchase Notice has been delivered by a Holder may be converted only if the Holder withdraws the Repurchase Notice as described in Section 3.02(d); and (ix) the procedures that Holders must follow to require the Company to repurchase their Notes, if applicable. Simultaneously with providing such Fundamental Change Repurchase Right Notice, the Company shall publish such information on the Company’s website or through such other public medium as the Company may use at that time. (c) To exercise the right to cause the Company to repurchase its Notes pursuant to this Article 3, a Holder must deliver, on or before the Business Day prior to the Fundamental Change Repurchase Date, the Notes to be repurchased. If the Notes are Global Notes, such delivery (and the related Repurchase Notice) must comply with all Applicable Procedures. If the Notes are Certificated Notes, such Notes must be duly endorsed for transfer, and must be delivered by the Holder together with a written Repurchase Notice exercising such Holder’s right to require the Company to repurchase its Notes or a portion thereof, substantially in the form included in Exhibit A hereto, duly completed, to the Paying Agent. The “Repurchase Notice” must state:
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Repurchase at Option of the Holder Upon a Fundamental Change. (a) Subject to the satisfaction of the requirements of this Article 3, if If a Fundamental Change occurs shall occur at any timetime prior to July 2, 2019, each Holder of Securities shall have the right, at its such Holder's option, to require the Company to repurchase any or all of its Notes, or any portion of Holder's Securities on the principal amount thereof date that is equal to $1,000 or an integral multiple of $1,000, on a date (the “Fundamental Change Repurchase Date”) of the Company’s choosing that is not less than 15 nor more than 35 45 days after the date of the Company's notice of such Fundamental Change Repurchase Right Notice(the "FUNDAMENTAL CHANGE REPURCHASE DATE") (or if such date is not a Business Day, the next succeeding Business Day). The Fundamental Change Securities may be repurchased in integral multiples of $1,000 of Principal Amount. The Company shall repurchase such Securities at a price the Company is required to pay (the “Fundamental Change Repurchase Price”"FUNDAMENTAL CHANGE PURCHASE PRICE") is equal to 100% of the principal amount of the Notes to be repurchased Issue Price plus accrued Original Issue Discount and unpaid interest, if any, to, but not including, the Fundamental Change Repurchase Date; provided that if the Fundamental Change Repurchase Date falls after a Regular Record Date and on or prior to the Interest Payment Date to which it relates, the Company shall instead pay the full amount of accrued and unpaid interest to the Holder of record at 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 the Notes to be repurchased. Any Notes so repurchased by the Company shall be paid for in cash.
(b) In addition to any notice obligation the Company may have under Section 4.01(e) or Section 4.04(a), after the occurrence of a Fundamental Change, but on or before the 15th day following such occurrence, the Company shall notify all Holders of the Notes and the Trustee and Conversion Agent (if other than the Trustee) and the Paying Agent, in writing, of the occurrence of the Fundamental Change and of the resulting repurchase right, if any (the “Fundamental Change Repurchase Right Notice”). Such Fundamental Change Repurchase Right Notice shall state:
(i) the events causing the Fundamental Change;
(ii) the date of the Fundamental Change;
(iii) the last date on which a Holder may exercise the repurchase right, if applicable;
(iv) the Fundamental Change Repurchase Price, if applicable;
(v) the Fundamental Change Repurchase Date, if applicable;
(vi) the name and address of the Paying Agent and the Conversion Agent, if applicable;
(vii) the applicable Conversion Rate and any adjustments to the applicable Conversion Rate;
(viii) that the Notes with respect to which a Repurchase Notice has been delivered by a Holder may be converted only if the Holder withdraws the Repurchase Notice as described in Section 3.02(d); and
(ix) the procedures that Holders must follow to require the Company to repurchase their Notes, if applicable. Simultaneously with providing such Fundamental Change Repurchase Right Notice, the Company shall publish such information on the Company’s website or through such other public medium as the Company may use at that time.
(c) To exercise the right to cause the Company to repurchase its Notes pursuant to this Article 3, a Holder must deliver, on or before the Business Day prior to the Fundamental Change Repurchase Date. No Securities may be repurchased at the option of the Holders as a result of a Fundamental Change if there has occurred and is continuing an Event of Default (other than a default in the payment of the Fundamental Change Purchase Price with respect to such Securities).
(b) The Company, or at its request (which must be received by the Trustee at least three Business Days prior to the date the Trustee is requested to give such notice as described below) the Trustee in the name of and at the expense of the Company, shall mail to all Holders of record of the Securities a notice (a "FUNDAMENTAL CHANGE REPURCHASE NOTICE") of the occurrence of a Fundamental Change and of the repurchase right arising as a result thereof on or before the tenth day after the occurrence of such Fundamental Change. The Company shall promptly furnish the Trustee a copy of such notice.
(c) For a Security to be so repurchased at the option of the Holder, the Notes Paying Agent must receive such Security with the form entitled "Option to be repurchased. If Elect Repurchase Upon a Fundamental Change" on the Notes are Global Notesreverse thereof duly completed, together with such delivery (and the related Repurchase Notice) must comply with all Applicable Procedures. If the Notes are Certificated Notes, such Notes must be Security duly endorsed for transfer, on or before the 45th day after the date of such notice (or if such 45th day is not a Business Day, the immediately preceding Business Day). All questions as to the validity, eligibility (including time of receipt) and must acceptance of any Security for repurchase shall be delivered determined by the Holder together with a written Repurchase Notice exercising such Holder’s right to require the Company to repurchase its Notes or a portion thereofCompany, substantially in the form included in Exhibit A hereto, duly completed, to the Paying Agent. The “Repurchase Notice” must state:whose determination shall be final and binding.
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Repurchase at Option of the Holder Upon a Fundamental Change. (a) Subject to the satisfaction of the requirements of this Article 3, if If a Fundamental Change occurs at any timeoccurs, each Holder shall have the right, at its option, right to require the Company Co-Issuers to repurchase purchase some or all of its that Holder’s Notes, or any portion of the principal amount thereof that is equal to $1,000 or an in integral multiple multiples of $1,00025 Initial Principal Amount, on a date (the “Fundamental Change Repurchase Date”) of the Company’s Co-Issuers’ choosing that is not less than 15 Business Days nor more than 35 days Business Days after the date of the Fundamental Change Repurchase Right Notice. The Co-Issuers Notice at a repurchase price in cash equal to 100% of the Accreted Principal Amount of the Notes to be repurchased, plus interest in cash on the Accreted Principal Amount at the rate set forth in Section 3.03 from and including the immediately preceding Interest Payment Date to, but excluding, the Fundamental Change repurchase price the Company is required to pay Repurchase Date (the “Fundamental Change Repurchase Price”) is equal to 100% of the principal amount of the Notes to be repurchased plus accrued and unpaid interest, if any, to, but not including, the Fundamental Change Repurchase Date; provided that if the Fundamental Change Repurchase Date falls after a Regular Record Date and on or prior to the Interest Payment Date to which it relates, the Company shall instead pay the full amount of accrued and unpaid interest to the Holder of record at 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 the Notes to be repurchased. Any Notes so repurchased by the Company shall be paid for in cash).
(b) In addition to any notice obligation the Company may have under Section 4.01(e) or Section 4.04(a), Within 15 calendar days after the occurrence of a Fundamental Change, but on or before the 15th day following such occurrence, the Company shall notify all Holders of the Notes and the Trustee and Conversion Agent (if other than the Trustee) and the Paying Agent, in writing, of the occurrence of the Fundamental Change and of the resulting repurchase right, if any Co-Issuers are required to mail notice (the “Fundamental Change Repurchase Right Co-Issuers Notice”). Such Fundamental Change Repurchase Right Notice shall state) of the following to all Holders:
(i) the events causing the Fundamental Change;
(ii) the date of the Fundamental Change;
(iii) the last date on which a Holder may exercise the repurchase right, if applicableright pursuant to this Article 4;
(iv) the Fundamental Change Repurchase Price, if applicable;
(v) the Fundamental Change Repurchase Date, if applicable;
(vi) the name and address of the Paying Agent and the Conversion Agent, if applicable;
(vii) that the Notes are eligible to be converted, the applicable Conversion Rate Price and any adjustments to the applicable Conversion RatePrice resulting from such Fundamental Change transaction and expected changes in the shares deliverable upon conversion of the Notes as a result of the occurrence 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 withdraws the Fundamental Change Repurchase Notice as described in Section 3.02(daccordance with the terms of this Supplemental Indenture;
(ix) that a Holder must exercise its repurchase right by the close of business on the Business Day immediately preceding the Fundamental Change Repurchase Date (the “Fundamental Change Repurchase Expiration Time”);
(x) that the Holder shall have the right to withdraw any Notes tendered prior to the Fundamental Change Repurchase Expiration Time;
(xi) the CUSIP number of the Notes; and
(ixxii) the procedures that Holders must follow to require the Company Co-Issuers to repurchase their Notes, if applicableNotes pursuant to this Article 4. Simultaneously with providing such The Co-Issuers must also deliver a copy of the Fundamental Change Repurchase Right Notice, Co-Issuers Notice to the Company Paying Agent. No failure of the Co-Issuers to give the foregoing notices and no defect therein shall publish such information on limit the Company’s website repurchase rights of Holders or through such other public medium as affect the Company may use at that timevalidity of the proceedings for the repurchase of the Notes pursuant to this Section 4.01.
(c) To exercise the right to cause the Company to repurchase its Notes pursuant to this Article 3right, a Holder must deliver, on or before the close of business on the Business Day immediately preceding the Fundamental Change Repurchase Date specified in the Fundamental Change Co-Issuers Notice, written notice (the “Fundamental Change Repurchase Notice”) to the Trustee of the Holder’s exercise of its repurchase right. The Fundamental Change Repurchase Notice shall state:
(i) the name of the Holder;
(ii) if certificated Notes have been issued, the certificate numbers of the Notes to be delivered for repurchase, or if certificated Notes have not been issued, such Fundamental Change Repurchase Notice must comply with appropriate Depositary procedures;
(iii) the portion of the aggregate Initial Principal Amount of the Holder’s Notes to be repurchased, which must be $25 Initial Principal Amount or an integral multiple thereof; and
(iv) that the Notes are to be repurchased by the Co-Issuers pursuant to the applicable provisions of the Notes and this Indenture.
(d) Holders may withdraw any Fundamental Change Repurchase Notice by delivering a written notice of withdrawal to the Paying Agent prior to the close of business on the Business Day before the Fundamental Change Repurchase Date. The withdrawal notice must state:
(i) the name of the Holder;
(ii) a statement that the Holder is withdrawing its election to require the Co-Issuers to repurchase its Notes;
(iii) the aggregate Initial Principal Amount of the withdrawn Notes, which must be an integral multiple of $25;
(iv) if certificated Notes have been issued, the certificate number of the withdrawn Notes, or if certificated Notes have not been issued, such withdrawal notice must comply with appropriate Depositary procedures; and
(v) the aggregate Initial Principal Amount, if any, that remains subject to the Fundamental Change Repurchase Notice, which must be an integral multiple of $25. Payment of the Fundamental Change Repurchase Price for a Note for which a Fundamental Change Repurchase Notice has been delivered and not withdrawn is conditioned upon book-entry transfer or delivery of the Note, together with necessary endorsements, to the Paying Agent at its corporate trust office in the Borough of Manhattan, The City of New York, or any other office of the Paying Agent, at any time after delivery of the Fundamental Change Repurchase Notice. Payment of the Fundamental Change Repurchase Price for the Note will be made promptly following the later of the Fundamental Change Repurchase Date and the time of book-entry transfer or delivery of the Note. If the Paying Agent holds money sufficient to pay, on the Fundamental Change Repurchase Date, the Notes Fundamental Change Repurchase Price of the Note, then, as of the Fundamental Change Repurchase Date:
(A) the Note shall cease to be repurchasedOutstanding and Accretion Amounts shall cease to accrue; and
(B) all other rights of the Holder shall terminate (other than the right to receive the Fundamental Change Repurchase Price upon delivery of the Note, together with necessary endorsements). If This shall be the case whether or not book-entry transfer of the Notes is made and whether or not the Notes are Global Notes, such delivery (and the related Repurchase Notice) must comply with all Applicable Procedures. If the Notes are Certificated Notes, such Notes must be duly endorsed for transfer, and must be delivered by the Holder together with a written Repurchase Notice exercising such Holder’s right to require the Company to repurchase its Notes or a portion thereof, substantially in the form included in Exhibit A hereto, duly completed, to the Paying Agent. The “obligation of the Co-Issuers to make a repurchase in the event of a Fundamental Change will be satisfied if a third party makes an offer to repurchase Notes in the manner and at the times and otherwise in compliance in all material respects with the requirements applicable to a Fundamental Change repurchase made by the Co-Issuers and purchases all Notes validly tendered and not withdrawn for which a Fundamental Change Repurchase Notice” must state:Notice has been delivered and not withdrawn. The Paying Agent shall promptly notify the Co-Issuers of the receipt by it of any Fundamental Change Repurchase Notice or written notice of withdrawal thereof.
(e) Notwithstanding the foregoing, no Notes may be repurchased by the Co-Issuers at the option of the Holders upon a Fundamental Change if there has occurred and is continuing an Event of Default other than an Event of Default that is cured by the payment of the Fundamental Change Repurchase Price.
Appears in 1 contract
Samples: Supplemental Indenture (Sealy Corp)
Repurchase at Option of the Holder Upon a Fundamental Change. (a) Subject to the satisfaction of the requirements of this Article 3Section 3.8, if a Fundamental Change occurs at any timetime prior to the Final Maturity Date, each Holder shall will, upon receipt of the notice of the occurrence of a Fundamental Change described in Section 3.8(c), have the right, at its option, right to require the Company to repurchase any or all of its Notes, or any portion of the principal such Holder's Securities for cash in an amount thereof that is equal to $1,000 or an integral multiple of $1,000, on a date (the “Fundamental Change Repurchase Date”) of the Company’s choosing that is not less than 15 nor more than 35 days after the date of the Fundamental Change Repurchase Right Notice. The Fundamental Change repurchase price the Company is required to pay (the “Fundamental Change Repurchase Price”) is equal to 100% of the principal amount of the Notes Securities to be repurchased plus accrued and unpaid interest, if any, to, to (but not including, ) the Fundamental Change Repurchase Date; provided that if Date (the "FUNDAMENTAL CHANGE REPURCHASE PRICE"), unless such Fundamental Change Repurchase Date falls after a Regular Record Date an interest payment record date and on or prior to the Interest Payment Date to corresponding interest payment date, in which it relates, case the Company shall instead pay Fundamental Change Repurchase Price will include the full amount of accrued and unpaid interest payable on such interest payment date to the Holder of record at the close of business on such Regular Record Date, and the corresponding interest payment record date. At least 15 Business Days prior to the anticipated effective date of the Fundamental Change Repurchase Price shall be equal to 100% (or, if the Company does not have actual notice of the principal amount of the Notes to be repurchased. Any Notes so repurchased by a Fundamental Change, as soon as practicable thereafter), the Company shall be paid for provide to all Holders of the Securities, the Trustee, the Paying Agent and the Conversion Agent a conversion right notice (the "FUNDAMENTAL CHANGE CONVERSION RIGHT NOTICE") stating:
(1) if applicable, whether the Company will adjust the Applicable Conversion Rate and related conversion obligation pursuant to Section 3.9 hereof;
(2) whether the Company expects that Holders will have the right to require the Company to repurchase their Securities as described in cashthis Section 3.8; and
(3) that the Holders of the Securities have the right to convert their Securities in accordance with Article 4 hereof.
(b) In addition Notwithstanding the foregoing, Holders will not have the right to any notice obligation require the Company may have under Section 4.01(eto repurchase any Securities if a Fundamental Change described in clause (b), (c) or (d) in the definition of Fundamental Change occurs (and the Company will not be required to deliver the notice described in Section 4.04(a3.8(c)), if either:
(1) the Closing Sale Price for any five Trading Days within the period of 10 consecutive Trading Days ending immediately after the occurrence later of the effective date of the Fundamental Change or the date of the public announcement of the Fundamental Change, in the case of a Fundamental Change relating to an acquisition of Capital Stock under clause (b) of the definition of Fundamental Change, but or the period of 10 consecutive Trading Days ending immediately before the effective date of the Fundamental Change, in the case of a Fundamental Change relating to a merger, consolidation, asset sale or otherwise under clause (c) of the definition of Fundamental Change or a change in the Board of Directors under clause (d) of the definition of Fundamental Change, equals or exceeds 105% of the Applicable Conversion Price in effect on each of those five Trading Days; or
(2) at least 90% of the consideration paid for the Common Stock (excluding cash payments for fractional shares and cash payments made pursuant to dissenters' or appraisal rights) in a merger or consolidation or a conveyance, sale, transfer or lease otherwise constituting a Fundamental Change under clause (b) and/or (c) of the definition of Fundamental Change consists of shares of common stock traded on the New York Stock Exchange or another U.S. national securities exchange or quoted on the Nasdaq Stock Market or another established automated over-the-counter trading market in the United States (or will be so traded or quoted immediately following the merger or consolidation) and, as a result of the merger or consolidation, the Securities become convertible into shares of such common stock.
(c) Subject to Section 3.8(b), on or before the 15th day following Business Day after the effective date of a Fundamental Change (which Fundamental Change results in the Holders of such occurrenceSecurities having the right to cause the Company to repurchase their Securities), the Company shall notify will provide to all Holders of the Notes and Securities, the Trustee and Conversion Agent (if other than the Trustee) and the Paying Agent, in writing, Agent a notice of the occurrence of the Fundamental Change and of the resulting repurchase right, if any right (the “Fundamental Change Repurchase Right Notice”"FUNDAMENTAL CHANGE REPURCHASE RIGHT NOTICE"). Such The Fundamental Change Repurchase Right Notice shall state:
(i1) the event or events causing giving rise to the Fundamental Change;
(ii2) if the Company will adjust the Applicable Conversion Rate and related conversion obligations as described in Section 3.9 hereof pursuant to a Fundamental Change that - 23 - falls under clause (b), (c) or (d) of the definition of Fundamental Change, the Applicable Conversion Rate and any adjustments to the Applicable Conversion Rate;
(3) the effective date of the Fundamental Change, if applicable;
(iii4) the last date on which a Holder may exercise the its repurchase right, if applicable;
(iv5) the Fundamental Change Repurchase Price, if applicable;
(v6) the Fundamental Change Repurchase Date, if applicable;
(vi7) the name and address of the Paying Agent and the Conversion Agent, if applicable;
(vii) the applicable Conversion Rate and any adjustments to the applicable Conversion Rate;
(viii) 8) that the Notes Securities with respect to which a Repurchase Exercise Notice has been delivered given by a the Holder may be converted only if the Holder withdraws the Repurchase Exercise Notice as described in Section 3.02(d3.8(d); and
(ix9) the procedures that Holders must follow to require the Company to repurchase their Notes, if applicableSecurities and to withdraw any Repurchase Exercise Notice. Simultaneously Substantially simultaneously with providing such the Fundamental Change Repurchase Right Notice, the Company shall will issue a press release and publish such the information on the Company’s website or through such other a public medium as the Company may use at that timecustomary for such press releases.
(cd) To exercise the repurchase right to cause the Company to repurchase its Notes pursuant to this Article 3in connection with a Fundamental Change, a Holder must delivermust, prior to 5:00 p.m., New York City time, on or before the second Business Day prior to immediately preceding the Fundamental Change Repurchase Date, deliver the Notes Securities to be repurchased. If purchased to the Notes are Global NotesPaying Agent, such delivery (and the related Repurchase Notice) must comply with all Applicable Procedures. If the Notes are Certificated Notes, such Notes must be duly endorsed for transfer, or effect book-entry transfer of the Securities to the Paying Agent, and must be delivered by the Holder together with deliver a written Repurchase Notice exercising such Holder’s right to require the Company to notice of repurchase its Notes or (a portion thereof"REPURCHASE EXERCISE NOTICE"), substantially in the form included in Exhibit A hereto, duly completed, completed to the Paying Agent. The “Repurchase Notice” Exercise Notice must state:
(1) if the Securities are certificated, the certificate numbers of the Securities to be delivered for repurchase;
(2) the portion of the principal amount of the Securities to be repurchased, which must be equal to $1,000 or an integral multiple thereof; and
(3) that the Securities are to be repurchased by the Company as of the Fundamental Change Repurchase Date pursuant to the applicable provisions of the Securities and this Indenture. If the Securities are not in certificated form, the Repurchase Exercise Notice must comply with the Applicable Procedures. A Holder may withdraw any Repurchase Exercise Notice (in whole or in part) by a written notice of withdrawal delivered to the Paying Agent prior to 5:00 p.m., New York City time, on the second Business Day prior to the Fundamental Change Repurchase Date. The notice of withdrawal must state:
(1) the principal amount of the Securities for which the Repurchase Exercise Notice has been withdrawn;
(2) if certificated Securities have been issued, the certificate numbers of the withdrawn Securities; and
(3) the principal amount, if any, that remains subject to the Repurchase Exercise Notice. If the Securities are not in certificated form, the withdrawal notice must comply with the Applicable Procedures.
(e) The Company must repurchase the Securities for which a Fundamental Change repurchase notice has been delivered and not withdrawn no less than 20 and no more than 35 Business Days after the date of the Fundamental Change Repurchase Right Notice with respect to the occurrence of the relevant Fundamental Change, subject to extension to comply with applicable law. To receive payment of the Fundamental Change Repurchase Price, a Holder must either effect book-entry transfer or deliver the Securities, together with necessary endorsements, to the office of the Paying Agent after delivery of the Repurchase Exercise Notice. Holders will receive payment of the Fundamental Change Repurchase Price promptly following the later of the Fundamental Change Repurchase Date or the time of book-entry transfer or the delivery of the Securities. If the Paying Agent holds money sufficient to pay the Fundamental Change Repurchase Price of the Securities on or prior to the Business Day following the Fundamental Change Repurchase Date, then:
(1) the Securities will cease to be outstanding and Interest, if any, will cease to accrue (whether or not book-entry transfer of the Securities is made or whether or not the Securities are delivered to the Paying Agent); and
(2) all other rights of the Holder will terminate (other than the right to receive the Fundamental Change Repurchase Price upon delivery or transfer of the Securities).
Appears in 1 contract
Repurchase at Option of the Holder Upon a Fundamental Change. (a) Subject to the satisfaction of the requirements of this Article 3Section 3.2, if a Fundamental Change occurs at any timetime prior to the Final Maturity Date, each Holder shall separately will, upon receipt of the notice of the occurrence of a Fundamental Change described in Section 3.2(c), have the right, at its option, right to require the Company to repurchase all of its Notesall, or any portion of the principal amount thereof that is equal to $1,000 or an integral multiple of $1,000, on a date (the “Fundamental Change Repurchase Date”) of the Company’s choosing that is but not less than 15 nor more than 35 days after the date all, of the Fundamental Change Repurchase Right Notice. The Fundamental Change repurchase price the Company is required to pay (the “Fundamental Change Repurchase Price”) is such Holder's Notes for cash in an amount equal to 100% of the principal amount of the Notes to be repurchased plus accrued and unpaid interest, if any, to, to (but not including, the Fundamental Change Repurchase Date; provided that if ) the Fundamental Change Repurchase Date falls after a Regular Record Date and on or prior to (the Interest Payment Date to which it relates, the Company shall instead pay the full amount of accrued and unpaid interest to the Holder of record at 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 the Notes to be repurchased. Any Notes so repurchased by the Company shall be paid for in cashPrice").
(b) In addition Notwithstanding the foregoing, Holders will not have the right to any notice obligation require the Company may have under Section 4.01(eto repurchase any Notes if a Fundamental Change described in clause (b) or (c) in the definition of Fundamental Change occurs (and the Company will not be required to deliver the notice described in Section 4.04(a3.2(c)), if either:
(1) the Closing Price for any five Trading Days within the period of 10 consecutive Trading Days ending immediately after the occurrence later of the effective date of the Fundamental Change or the date of the public announcement of the Fundamental Change, in the case of a Fundamental Change relating to an acquisition of Capital Stock under clause (b) of the definition of Fundamental Change, but or the period of five consecutive Trading Days ending immediately before the effective date of the Fundamental Change or in the case of a Fundamental Change relating to a merger, consolidation, asset sale or otherwise under clause (c) of the definition of Fundamental Change, equals or exceeds 110% of the Applicable Conversion Rate in effect on each of those five Trading Days; or
(2) at least 95% of the consideration paid for the Common Stock (excluding cash payments for fractional shares and cash payments made pursuant to dissenters' or appraisal rights) in a merger or consolidation or a conveyance, sale, transfer or lease otherwise constituting a Fundamental Change under clause (b) and/or (c) of the definition of Fundamental Change consisting of shares of Capital Stock traded on a United States national securities exchange or quoted on the Nasdaq National Market or another established over-the-counter trading market in the United States (or will be so traded or quoted immediately following the merger or consolidation) and as a result of the merger or consolidation the Notes become convertible into shares of such Capital Stock.
(c) Subject to Section 3.2(b), on or before the 15th day following after the effective date of a Fundamental Change (which Fundamental Change results in the Holders of such occurrenceNotes having the right to cause the Company to repurchase their Notes), the Company shall notify will provide to all Holders of the Notes and the Trustee and Conversion Agent (if other than the Trustee) and the Paying Agent, in writing, a notice of the occurrence of the Fundamental Change and of the resulting repurchase right, if any (the “Fundamental Change Repurchase Right Notice”). Such Fundamental Change Repurchase Right Notice notice shall state:
(i1) the events causing the Fundamental Change;
(ii2) the effective date of the Fundamental Change;
(iii3) the last date on which a Holder may exercise the its repurchase right, if applicable;
(iv4) the Fundamental Change Repurchase Price, if applicable;
(v5) the Fundamental Change Repurchase Date, if applicable;
(vi6) the name and address of the Paying Agent and the Conversion Agent, if applicable;
(vii) the applicable Applicable Conversion Rate and any adjustments to the applicable Applicable Conversion Rate, if and to the extent applicable;
(viii7) that the Notes with respect to which a Repurchase Notice Fundamental Change repurchase notice has been delivered given by a the Holder may be converted only if the Holder withdraws the Repurchase Notice Fundamental Change repurchase notice as described in Section 3.02(d)clause (d) below; and
(ix) 8) the procedures that Holders must follow to require the Company to repurchase their Notes, if applicable. Simultaneously with providing such Fundamental Change Repurchase Right Notice, the Company shall publish such information on the Company’s website or through such other public medium as the Company may use at that timeNotes and to withdraw any repurchase notice.
(cd) To exercise the repurchase right to cause the Company to repurchase its Notes pursuant to this Article 3in connection with a Fundamental Change, a Holder must, before the close of business on the second Business Day immediately preceding the Fundamental Change Repurchase Date, deliver to the Company (i) the Notes to be purchased by the Company, and (ii) a duly completed Fundamental Change repurchase notice. The Fundamental Change repurchase notice must deliver, state:
(1) the certificate number or numbers of the Note or Notes being delivered for repurchase; and
(2) that the Note or Notes are to be repurchased by the Company pursuant to the applicable provisions of the Note or Notes and this Agreement. A Holder may withdraw any Fundamental Change repurchase notice by a written notice of withdrawal delivered to the Company prior to the close of business on or before the Business Day prior to the Fundamental Change Repurchase Date, . The notice of withdrawal must state:
(1) the principal amount of the Note or Notes for which the repurchase notice has been withdrawn; and
(2) the certificate numbers of the withdrawn Note or Notes.
(e) The Company must repurchase the Notes for which a Fundamental Change repurchase notice has been delivered and not withdrawn no less than 20 days after the date of the Company's notice of the occurrence of the relevant Fundamental Change and no more than 60 days after the effective date of the Fundamental Change, subject to extension to comply with applicable law (the "Fundamental Change Repurchase Date"). In addition to delivering a repurchase note that has not been withdrawn, in order to receive payment of the Fundamental Change Repurchase Price, a Holder must deliver the Notes, together with necessary endorsements, to the Company after delivery of the repurchase notice. Holders will receive payment of the Fundamental Change Repurchase Price promptly following the later of (i) the Fundamental Change Repurchase Date and (ii) the time of the delivery of the Notes. In such event on the Fundamental Change Repurchase Date:
(1) the Notes will cease to be repurchased. If outstanding and interest, if any, will cease to accrue (whether or not the Notes are Global Notes, such delivery delivered to the Company); and
(and the related Repurchase Notice2) must comply with all Applicable Procedures. If the Notes are Certificated Notes, such Notes must be duly endorsed for transfer, and must be delivered by other rights of the Holder together with a written Repurchase Notice exercising such Holder’s will terminate (other than the right to require receive the Company to repurchase its Notes Fundamental Change Repurchase Price upon delivery or a portion thereof, substantially in transfer of the form included in Exhibit A hereto, duly completed, to the Paying Agent. The “Repurchase Notice” must state:Notes).
Appears in 1 contract
Samples: Noteholders Agreement (Hybridon Inc)
Repurchase at Option of the Holder Upon a Fundamental Change. (a) Subject to the satisfaction of the requirements of this Article 3Section 3.2, if a Fundamental Change occurs at any timetime prior to the Final Maturity Date, each Holder shall separately will, upon receipt of the notice of the occurrence of a Fundamental Change described in Section 3.2(c), have the right, at its option, right to require the Company to repurchase all of its Notesall, or any portion of the principal amount thereof that is equal to $1,000 or an integral multiple of $1,000, on a date (the “Fundamental Change Repurchase Date”) of the Company’s choosing that is but not less than 15 nor more than 35 days after the date all, of the Fundamental Change Repurchase Right Notice. The Fundamental Change repurchase price the Company is required to pay (the “Fundamental Change Repurchase Price”) is such Holder's Notes for cash in an amount equal to 100% of the principal amount of the Notes to be repurchased plus accrued and unpaid interest, if any, to, to (but not including, the Fundamental Change Repurchase Date; provided that if ) the Fundamental Change Repurchase Date falls after a Regular Record Date and on or prior to (the Interest Payment Date to which it relates, the Company shall instead pay the full amount of accrued and unpaid interest to the Holder of record at 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 the Notes to be repurchased. Any Notes so repurchased by the Company shall be paid for in cashPrice").
(b) In addition Notwithstanding the foregoing, Holders will not have the right to any notice obligation require the Company may have under Section 4.01(eto repurchase any Notes if a Fundamental Change described in clause (b) or (c) in the definition of Fundamental Change occurs (and the Company will not be required to deliver the notice described in Section 4.04(a3.2(c)), if either:
(1) the Closing Price for any five Trading Days within the period of 10 consecutive Trading Days ending immediately after the occurrence later of the effective date of the Fundamental Change or the date of the public announcement of the Fundamental Change, in the case of a Fundamental Change relating to an acquisition of Capital Stock under clause (b) of the definition of Fundamental Change, but or the period of five consecutive Trading Days ending immediately before the effective date of the Fundamental Change or in the case of a Fundamental Change relating to a merger, consolidation, asset sale or otherwise under clause (c) of the definition of Fundamental Change, equals or exceeds 110% of the Applicable Conversion Rate in effect on each of those five Trading Days; or
(2) at least 95% of the consideration paid for the Common Stock (excluding cash payments for fractional shares and cash payments made pursuant to dissenters' or appraisal rights) in a merger or consolidation or a conveyance, sale, transfer or lease otherwise constituting a Fundamental Change under clause (b) and/or (c) of the definition of Fundamental Change consisting of shares of Capital Stock traded on a United States national securities exchange or quoted on the Nasdaq National Market or another established over-the-counter trading market in the United States (or will be so traded or quoted immediately following the merger or consolidation) and as a result of the merger or consolidation the Notes become convertible into shares of such Capital Stock.
(c) Subject to Section 3.2(b), on or before the 15th day following after the effective date of a Fundamental Change (which Fundamental Change results in the Holders of such occurrenceNotes having the right to cause the Company to repurchase their Notes), the Company shall notify will provide to all Holders of the Notes and the Trustee and Conversion Agent (if other than the Trustee) and the Paying Agent, in writing, a notice of the occurrence of the Fundamental Change and of the resulting repurchase right, if any (the “Fundamental Change Repurchase Right Notice”). Such Fundamental Change Repurchase Right Notice notice shall state:
(i1) the events causing the Fundamental Change;
; (ii2) the effective date of the Fundamental Change;
; (iii3) the last date on which a Holder may exercise the its repurchase right, if applicable;
; (iv4) the Fundamental Change Repurchase Price, if applicable;
; (v5) the Fundamental Change Repurchase Date, if applicable;
; (vi6) the name and address of the Paying Agent and the Conversion Agent, if applicable;
(vii) the applicable Applicable Conversion Rate and any adjustments to the applicable Applicable Conversion Rate;
, if and to the extent applicable; (viii7) that the Notes with respect to which a Repurchase Notice Fundamental Change repurchase notice has been delivered given by a the Holder may be converted only if the Holder withdraws the Repurchase Notice Fundamental Change repurchase notice as described in Section 3.02(d)clause (d) below; and
and (ix) 8) the procedures that Holders must follow to require the Company to repurchase their Notes, if applicable. Simultaneously with providing such Fundamental Change Repurchase Right Notice, the Company shall publish such information on the Company’s website or through such other public medium as the Company may use at that timeNotes and to withdraw any repurchase notice.
(cd) To exercise the repurchase right to cause the Company to repurchase its Notes pursuant to this Article 3in connection with a Fundamental Change, a Holder must, before the close of business on the second Business Day immediately preceding the Fundamental Change Repurchase Date, deliver to the Company (i) the Notes to be purchased by the Company, and (ii) a duly completed Fundamental Change repurchase notice. The Fundamental Change repurchase notice must deliver, state:
(1) the certificate number or numbers of the Note or Notes being delivered for repurchase; and (2) that the Note or Notes are to be repurchased by the Company pursuant to the applicable provisions of the Note or Notes and this Agreement. A Holder may withdraw any Fundamental Change repurchase notice by a written notice of withdrawal delivered to the Company prior to the close of business on or before the Business Day prior to the Fundamental Change Repurchase Date, . The notice of withdrawal must state:
(1) the principal amount of the Note or Notes for which the repurchase notice has been withdrawn; and (2) the certificate numbers of the withdrawn Note or Notes.
(e) The Company must repurchase the Notes for which a Fundamental Change repurchase notice has been delivered and not withdrawn no less than 20 days after the date of the Company's notice of the occurrence of the relevant Fundamental Change and no more than 60 days after the effective date of the Fundamental Change, subject to extension to comply with applicable law (the "Fundamental Change Repurchase Date"). In addition to delivering a repurchase note that has not been withdrawn, in order to receive payment of the Fundamental Change Repurchase Price, a Holder must deliver the Notes, together with necessary endorsements, to the Company after delivery of the repurchase notice. Holders will receive payment of the Fundamental Change Repurchase Price promptly following the later of (i) the Fundamental Change Repurchase Date and (ii) the time of the delivery of the Notes. In such event on the Fundamental Change Repurchase Date:
(1) the Notes will cease to be repurchased. If outstanding and interest, if any, will cease to accrue (whether or not the Notes are Global Notes, such delivery delivered to the Company); and (and the related Repurchase Notice2) must comply with all Applicable Procedures. If the Notes are Certificated Notes, such Notes must be duly endorsed for transfer, and must be delivered by other rights of the Holder together with a written Repurchase Notice exercising such Holder’s will terminate (other than the right to require receive the Company to repurchase its Notes Fundamental Change Repurchase Price upon delivery or a portion thereof, substantially in transfer of the form included in Exhibit A hereto, duly completed, to the Paying Agent. The “Repurchase Notice” must state:Notes).
Appears in 1 contract
Samples: Noteholders Agreement (Hybridon Inc)
Repurchase at Option of the Holder Upon a Fundamental Change. (a) Subject to the satisfaction of the requirements of this Article 3Section 3.1, if a Fundamental Change occurs at any timetime prior to the Maturity Date, each Holder shall will, upon receipt of the notice of the occurrence of a Fundamental Change described in Section 3.1(c), have the right, at its option, right to require the Company to repurchase any or all of its Notes, or any portion of the principal such Holder’s Notes for cash in an amount thereof that is equal to $1,000 or an integral multiple of $1,000, on a date (the “Fundamental Change Repurchase Date”) of the Company’s choosing that is not less than 15 nor more than 35 days after the date of the Fundamental Change Repurchase Right Notice. The Fundamental Change repurchase price the Company is required to pay (the “Fundamental Change Repurchase Price”) is equal to 100120% of the principal amount of the Notes to be repurchased plus accrued and unpaid interest, if any, to, to (but not including, the Fundamental Change Repurchase Date; provided that if ) the Fundamental Change Repurchase Date falls after a Regular Record Date and on or prior to (the Interest Payment Date to which it relates, the Company shall instead pay the full amount of accrued and unpaid interest to the Holder of record at 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 the Notes to be repurchased. Any Notes so repurchased by the Company shall be paid for in cashPrice”).
(b) In addition on or before the 10th Business Day prior to any notice obligation the effective date of a Fundamental Change (which Fundamental Change results in the Holders of such Notes having the right to cause the Company may have under Section 4.01(e) or Section 4.04(ato repurchase their Notes), or as soon as practicable after the occurrence of a Fundamental Change, but on or before the 15th day following such occurrenceChange described in Section 1.11(c), the Company shall notify will provide to all Holders of the Notes and the Trustee and Conversion Agent (if other than the Trustee) and the Paying AgentNotes, in writing, a notice of the occurrence of the Fundamental Change and of the resulting repurchase right, if any right (the “Fundamental Change Repurchase Right Notice”). Such The Fundamental Change Repurchase Right Notice shall state:
(i1) the event or events causing giving rise to the Fundamental Change;
(ii2) the effective date of the Fundamental Change, if applicable;
(iii3) the last date on which a Holder may exercise the its repurchase right, if applicable;
(iv4) the Fundamental Change Repurchase Price, if applicable;
(v5) the Fundamental Change Repurchase Date, if applicable;
(vi) the name and address of the Paying Agent and the Conversion Agent, if applicable;
(vii) the applicable Conversion Rate and any adjustments to the applicable Conversion Rate;
(viii6) that the Notes with respect to which a Repurchase Exercise Notice has been delivered given by a the Holder may be converted pursuant to Section 4.1 only if the Holder withdraws the Repurchase Exercise Notice as described in Section 3.02(d3.1(d); and
(ix7) the procedures that Holders must follow to require the Company to repurchase their Notes, if applicable. Simultaneously with providing such Fundamental Change Notes and to withdraw any Repurchase Right Exercise Notice, the Company shall publish such information on the Company’s website or through such other public medium as the Company may use at that time.
(c) To exercise the repurchase right to cause the Company to repurchase its Notes pursuant to this Article 3in connection with a Fundamental Change, a Holder must delivermust, prior to 8:00 p.m., New York City time, on or before the second Business Day prior to immediately preceding the Fundamental Change Repurchase Date, deliver the Notes to be repurchased. If purchased to the Notes are Global NotesCompany, such delivery (and the related Repurchase Notice) must comply with all Applicable Procedures. If the Notes are Certificated Notes, such Notes must be duly endorsed for transfer, and must be delivered by the Holder together with deliver a written notice of repurchase (a “Repurchase Notice exercising such Holder’s right to require the Company to repurchase its Notes or a portion thereofExercise Notice”), substantially in the form included in Exhibit A hereto, duly completed, to the Paying AgentNote. The “Repurchase Notice” Exercise Notice must state:
(1) the portion of the principal amount of the Notes to be repurchased, which must be equal to $100,000 or an integral multiple thereof; and
(2) that the Notes are to be repurchased by the Company as of the Fundamental Change Repurchase Date pursuant to the applicable provisions of the Notes and this Agreement.
(d) A Holder may withdraw any Repurchase Exercise Notice (in whole or in part) by a written notice of withdrawal delivered to the Company prior to midnight, New York City time, on the second Business Day immediately preceding the Fundamental Change Repurchase Date. The notice of withdrawal must state:
(1) the principal amount of the Notes for which the Repurchase Exercise Notice has been withdrawn; and
(2) the principal amount, if any, that remains subject to the Repurchase Exercise Notice.
(e) The Company must repurchase the Notes for which a Fundamental Change Repurchase Right Notice has been delivered and not withdrawn no less than 10 and no more than 15 Business Days after the date of the Fundamental Change Repurchase Right Notice with respect to the occurrence of the relevant Fundamental Change, subject to extension to comply with applicable law, from all Holders who have complied with Section 3.1(c). Holders will receive payment of the Fundamental Change Repurchase Price promptly following the later of the Fundamental Change Repurchase Date and the delivery of the Notes. If the Company holds money sufficient to pay the Fundamental Change Repurchase Price of the Notes on or prior to the Business Day following the Fundamental Change Repurchase Date, then:
(1) the Notes will cease to be outstanding and interest, if any, will cease; and
(2) all other rights of the Holder will terminate (other than the right to receive the Fundamental Change Repurchase Price upon delivery or transfer of the Notes).
(f) In connection with any purchase of Notes under Section 3.1, the Company shall comply with all tender offer rules applicable to the Company under the Exchange Act, if applicable. In the absence of an available exemption as determined by the Company in its sole discretion, the Company shall (a) comply with Rule 13e-4 and Rule 14e-1 (or any successor to either such Rule), if applicable, under the Exchange Act, (b) file the related Schedule TO (or any successor or similar schedule, form or report) if required under the Exchange Act, and (c) otherwise comply with all federal and state securities laws in connection with such purchase of Notes, all so as to permit the rights of the Holders and obligations of the Company under Section 3.1 to be exercised in the time and in the manner specified therein.
Appears in 1 contract
Samples: 10% Senior Secured Convertible Note Purchase Agreement (MoSys, Inc.)
Repurchase at Option of the Holder Upon a Fundamental Change. (a) Subject to the satisfaction of the requirements of this Article 3Section 3.04, if a Fundamental Change occurs at any timetime prior to the Maturity Date, each Holder shall will, upon receipt of the notice of the occurrence of a Fundamental Change described in Section 3.04(c), have the right, at its option, right (subject to the Company's rights upon delivery of a Public Acquisition Notice as defined in Section 3.06) to require the Company to repurchase any or all of its Notes, or any portion of the principal such Holder's Notes for cash in an amount thereof that is equal to $1,000 or an integral multiple of $1,000, on a date (the “Fundamental Change Repurchase Date”) of the Company’s choosing that is not less than 15 nor more than 35 days after the date of the Fundamental Change Repurchase Right Notice. The Fundamental Change repurchase price the Company is required to pay (the “Fundamental Change Repurchase Price”) is equal to 100% of the principal amount Accreted Principal Amount of the Notes to be repurchased plus accrued and unpaid interestInterest, if any, to, to (but not including, ) the Fundamental Change Repurchase Date; provided that if Date (the "Fundamental Change Repurchase Price"), unless such Fundamental Change Repurchase Date falls after a Regular an Interest Payment Record Date and on or prior to the corresponding Interest Payment Date to Date, in which it relates, case the Company shall instead pay Fundamental Change Repurchase Price will include the full amount of accrued and unpaid interest Interest payable on such Interest Payment Date to the Holder of record at the close of business on such Regular the corresponding Interest Payment Record Date, and the Fundamental Change Repurchase Price shall be equal to 100% of the principal amount of the Notes to be repurchased. Any Notes so repurchased by the Company shall be paid for in cash.
(b) In addition Notwithstanding the foregoing, Holders will not have the right to any notice obligation require the Company may have under Section 4.01(eto repurchase any Notes if a Fundamental Change described in clause (b) or (c) in the definition of Fundamental Change occurs (and the Company will not be required to deliver the notice described in Section 4.04(a3.04(c)), if either:
(i) the Closing Sale Price of the Common Stock for any five Trading Days within the period of 10 consecutive Trading Days ending immediately after the occurrence later of the effective date of the Fundamental Change or the date of the public announcement of the Fundamental Change, in the case of a Fundamental Change relating to an acquisition of Capital Stock under clause (b) of the definition of Fundamental Change, or the period of ten consecutive Trading Days ending immediately before the effective date of the Fundamental Change, in the case of a Fundamental Change relating to a merger, consolidation, asset sale or otherwise under clause (c) of the definition of Fundamental Change, equals or exceeds 105% of the Applicable Conversion Price of the Notes in effect on each of those five Trading Days; or
(ii) at least 95% of the consideration paid for the Common Stock (excluding cash payments for fractional shares and cash payments made pursuant to dissenters' appraisal rights) in a merger or consolidation or a conveyance, sale, transfer or lease otherwise constituting a Fundamental Change under clause (b) and/or (c) of the definition of Fundamental Change consists of shares of Capital Stock traded on the New York Stock Exchange or another United States national securities exchange or quoted on the Nasdaq Stock Market or another established automated over-the-counter trading market in the United States (or will be so traded or quoted immediately following the merger or consolidation) and as a result of the merger or consolidation the Notes become convertible into shares of such Capital Stock.
(c) Subject to Sections 3.04(b) and 3.06, on or before the 30th day after the effective date of a Fundamental Change, but on or before the 15th day following such occurrence, the Company shall notify will provide to all Holders of the Notes and Notes, the Trustee and Conversion Agent (if other than the Trustee) and the Paying Agent, in writing, Agent a notice of the occurrence of the Fundamental Change and of the resulting repurchase right, if any (the “Fundamental Change Repurchase Right Notice”). Such Fundamental Change Repurchase Right Notice notice shall state:
(i) the events causing the Fundamental Change;
(ii) whether the Fundamental Change falls under clause (b), (c) or (d) of the definition of Fundamental Change, in which case the conversion adjustments described in Section 3.05 will be applicable;
(iii) the effective date of the Fundamental Change;
(iiiiv) the last date on which a Holder may exercise the its repurchase right, if applicable;
(iv) the Fundamental Change Repurchase Price, if applicable;
(v) the Fundamental Change Repurchase Date, if applicablePrice;
(vi) the Fundamental Change Repurchase Date;
(vii) the name and address of the Paying Agent and the Conversion Agent, if applicable;
(viiviii) the applicable Conversion Rate original conversion rate and any adjustments to the applicable Conversion Rateoriginal conversion rate;
(viiiix) that the Notes with respect to which a Repurchase Notice Fundamental Change repurchase notice has been delivered given by a the Holder may be converted only if the Holder withdraws the Repurchase Notice Fundamental Change repurchase notice as described in Section 3.02(d)clause (d) below; and
(ixx) the procedures that Holders must follow to require the Company to repurchase their Notes, if applicableNotes and to withdraw any repurchase notice. Simultaneously Substantially simultaneously with providing such Fundamental Change Repurchase Right Noticenotice, the Company shall will issue a press release and publish such the information on the Company’s website or through such other a public medium as the Company may use at that timecustomary for such press releases.
(cd) To exercise the repurchase right to cause the Company to repurchase its Notes pursuant to this Article 3in connection with a Fundamental Change, a Holder must, before the close of business on the second Business Day immediately preceding the Fundamental Change Repurchase Date, deliver the Notes to be purchased to the Paying Agent, duly endorsed for transfer, or effect book-entry transfer of the Notes to the Paying Agent, and must deliverdeliver the Fundamental Change repurchase notice duly completed to the Paying Agent. The Fundamental Change repurchase notice must state:
(i) if the Notes are certificated, the certificate numbers of the Notes to be delivered for repurchase;
(ii) the portion of the Original Principal Amount of the Notes to be repurchased, which must be equal to $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 the Indenture. If the Notes are not in certificated form, the repurchase notice must comply with appropriate Depositary procedures. A Holder may withdraw any Fundamental Change repurchase notice (in whole or in part) by a written notice of withdrawal delivered to the Paying Agent prior to the close of business on or before the Business Day prior to the Fundamental Change Repurchase Date. The notice of withdrawal must state:
(i) the Original Principal Amount of the Notes for which the repurchase notice has been withdrawn;
(ii) if certificated Notes have been issued, the Notes certificate numbers of the withdrawn Notes; and
(iii) the Original Principal Amount, if any, that remains subject to be repurchasedthe repurchase notice. If the Notes are Global Notesnot in certificated form, such delivery (and the related Repurchase Notice) withdrawal notice must comply with all Applicable Proceduresappropriate Depositary procedures.
(e) The Company must repurchase the Notes for which a Fundamental Change repurchase notice has been delivered and not withdrawn no less than 20 and no more than 35 days after the date of the Company's notice of the occurrence of the relevant Fundamental Change, subject to extension to comply with applicable law. To receive payment of the Fundamental Change Repurchase Price, a Holder must either effect book-entry transfer or deliver the Notes, together with necessary endorsements, to the office of the Paying Agent after delivery of the repurchase notice. Holders will receive payment of the Fundamental Change Repurchase Price promptly following the later of the Fundamental Change Repurchase Date or the time of book-entry transfer or the delivery of the Notes. If the Paying Agent holds money or securities sufficient to pay the Fundamental Change Repurchase Price of the Notes are Certificated Noteson the Business Day following the Fundamental Change Repurchase Date, such then:
(i) the Notes must will cease to be duly endorsed for transferoutstanding and Interest, and must be if any, will cease to accrue (whether or not book-entry transfer of the Notes is made or whether or not the Note is delivered by the Holder together with a written Repurchase Notice exercising such Holder’s right to require the Company to repurchase its Notes or a portion thereof, substantially in the form included in Exhibit A hereto, duly completed, to the Paying Agent. The “); and
(ii) all other rights of the Holder will terminate (other than the right to receive the Fundamental Change Repurchase Notice” must state:Price upon delivery or transfer of the Notes).
Appears in 1 contract
Repurchase at Option of the Holder Upon a Fundamental Change. (a) Subject to the satisfaction of the requirements of this Article 3Section 3.1, if a Fundamental Change occurs at any timetime prior to the Final Maturity Date, each Holder shall will, upon receipt of the notice of the occurrence of a Fundamental Change described in Section 3.1(c), have the right, at its option, right to require the Company to repurchase any or all of its Notes, or any portion of the principal such Holder’s Notes for cash in an amount thereof that is equal to $1,000 or an integral multiple of $1,000, on a date (the “Fundamental Change Repurchase Date”) of the Company’s choosing that is not less than 15 nor more than 35 days after the date of the Fundamental Change Repurchase Right Notice. The Fundamental Change repurchase price the Company is required to pay (the “Fundamental Change Repurchase Price”) is equal to 100101% of the principal amount of the Notes to be repurchased plus accrued and unpaid interest, if any, to, to (but not including, the Fundamental Change Repurchase Date; provided that if ) the Fundamental Change Repurchase Date falls after a Regular Record Date and on or prior to (the Interest Payment Date to which it relates, the Company shall instead pay the full amount of accrued and unpaid interest to the Holder of record at 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 the Notes to be repurchased. Any Notes so repurchased by the Company shall be paid for in cash”).
(b) In addition to any notice obligation the Company may have under Section 4.01(e) or Section 4.04(a), after the occurrence of a Fundamental Change, but on or before the 15th day following Business Day prior to the effective date of a Fundamental Change (which Fundamental Change results in the Holders of such occurrenceNotes having the right to cause the Company to repurchase their Notes), the Company shall notify will provide to all Holders of the Notes and the Trustee and Conversion Agent (if other than the Trustee) and the Paying AgentNotes, in writing, a notice of the occurrence of the Fundamental Change and of the resulting repurchase right, if any right (the ““ Fundamental Change Repurchase Right NoticeNotice ”). Such The Fundamental Change Repurchase Right Notice shall state:
(i1) the event or events causing giving rise to the Fundamental Change;
(ii2) the effective date of the Fundamental Change, if applicable;
(iii3) the last date on which a Holder may exercise the its repurchase right, if applicable;
(iv4) the Fundamental Change Repurchase Price, if applicable;
(v5) the Fundamental Change Repurchase Date, if applicable;
(vi6) the name and address of the Paying Agent and the Conversion Agent, if applicable;
(vii) the applicable Conversion Rate and any adjustments to the applicable Conversion Rate;
(viii) that the Notes with respect to which a Repurchase Notice has been delivered by a Holder may be converted only if the Holder withdraws the Repurchase Notice as described in Section 3.02(d)[INTENTIONALLY OMITTED]; and
(ix7) the procedures that Holders must follow to require the Company to repurchase their Notes, if applicable. Simultaneously with providing such Fundamental Change Notes and to withdraw any Repurchase Right Exercise Notice, the Company shall publish such information on the Company’s website or through such other public medium as the Company may use at that time.
(c) To exercise the repurchase right to cause the Company to repurchase its Notes pursuant to this Article 3in connection with a Fundamental Change, a Holder must delivermust, prior to midnight, New York City time, on or before the second Business Day prior to immediately preceding the Fundamental Change Repurchase Date, deliver the Notes to be repurchased. If purchased to the Notes are Global NotesCompany, such delivery (and the related Repurchase Notice) must comply with all Applicable Procedures. If the Notes are Certificated Notes, such Notes must be duly endorsed for transfer, and must be delivered by the Holder together with deliver a written notice of repurchase (a “ Repurchase Exercise Notice exercising such Holder’s right to require the Company to repurchase its Notes or a portion thereof”), substantially in the form included in Exhibit A hereto, duly completed, to the Paying AgentNote. The “Repurchase Notice” Exercise Notice must state:
(1) the portion of the principal amount of the Notes to be repurchased, which must be equal to $100,000 or an integral multiple thereof (unless the total is $100,000 or less); and
(2) that the Notes are to be repurchased by the Company as of the Fundamental Change Repurchase Date pursuant to the applicable provisions of the Notes and this Agreement.
(d) A Holder may withdraw any Repurchase Exercise Notice (in whole or in part) by a written notice of withdrawal delivered to the Company prior to midnight, New York City time, on the second Business Day immediately preceding the Fundamental Change Repurchase Date. The notice of withdrawal must state:
(1) the principal amount of the Notes for which the Repurchase Exercise Notice has been withdrawn; and
(2) the principal amount, if any, that remains subject to the Repurchase Exercise Notice.
(e) The Company must repurchase the Notes for which a Fundamental Change Repurchase Right Notice has been delivered and not withdrawn no less than 20 and no more than 35 Business Days after the date of the Fundamental Change Repurchase Right Notice with respect to the occurrence of the relevant Fundamental Change, subject to extension to comply with applicable law, from all Holders who have complied with Section 3.1(c). Holders will receive payment of the Fundamental Change Repurchase Price promptly following the later of the Fundamental Change Repurchase Date and the time of book-entry transfer or the delivery of the Notes. If the Company holds money sufficient to pay the Fundamental Change Repurchase Price of the Notes on or prior to the Business Day following the Fundamental Change Repurchase Date, then:
(1) the Notes will cease to be outstanding and interest, if any, will cease to accrue; and
(2) all other rights of the Holder will terminate (other than the right to receive the Fundamental Change Repurchase Price plus any accrued but unpaid interest upon delivery or transfer of the Notes).
(f) In connection with any offer to purchase or purchase of Notes under Section 3.1, the Company shall comply with all tender offer rules applicable to the Company under the Exchange Act. In the absence of an available exemption as determined by the Company in its sole discretion, the Company shall (a) comply with Rule 13e-4 and Rule 14e-l (or any successor to either such Rule), if applicable, under the Exchange Act, (b) file the related Schedule TO (or any successor or similar schedule, form or report) if required under the Exchange Act, and (c) otherwise comply with all federal and state securities laws in connection with such offer to purchase or purchase of Notes, all so as to permit the rights of the Holders and obligations of the Company under Section 3.1 to be exercised in the time and in the manner specified therein.
Appears in 1 contract
Samples: Senior Secured Note Purchase Agreement (Focus Enhancements Inc)
Repurchase at Option of the Holder Upon a Fundamental Change. (a) Subject to the satisfaction of the requirements of this Article 3, if a Fundamental Change occurs at any time, each Holder shall have the right, at its option, to require the Company to repurchase all of its Notes, or any portion of the principal amount thereof that is equal to $1,000 or an integral multiple of $1,000, on a date (the “Fundamental Change Repurchase Date”) of the Company’s choosing that is not less than 15 nor more than 35 days after the date of the Fundamental Change Repurchase Right Notice. The Fundamental Change repurchase price the Company is required to pay (the “Fundamental Change Repurchase Price”) is equal to 100% of the principal amount of the Notes to be repurchased plus accrued and unpaid interest, if any, to, but not including, the Fundamental Change Repurchase Date; provided that if the Fundamental Change Repurchase Date falls after a Regular Record Date and on or prior to the Interest Payment Date to which it relates, the Company shall instead pay the full amount of accrued and unpaid interest to the Holder of record at 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 the Notes to be repurchased. Any Notes so repurchased by the Company shall be paid for in cash.
(b) In addition to any notice obligation the Company may have under Section 4.01(e) or Section 4.04(a), after the occurrence of a Fundamental Change, but on or before the 15th day following such occurrence, the Company shall notify all Holders of the Notes and the Trustee and Conversion Agent (if other than the Trustee) and the Paying Agent, in writing, of the occurrence of the Fundamental Change and of the resulting repurchase right, if any (the “Fundamental Change Repurchase Right Notice”). Such Fundamental Change Repurchase Right Notice shall state:
(i) the events causing the Fundamental Change;
(ii) the date of the Fundamental Change;
(iii) the last date on which a Holder may exercise the repurchase right, if applicable;
(iv) the Fundamental Change Repurchase Price, if applicable;
(v) the Fundamental Change Repurchase Date, if applicable;
(vi) the name and address of the Paying Agent and the Conversion Agent, if applicable;
(vii) the applicable Conversion Rate and any adjustments to the applicable Conversion Rate;
(viii) that the Notes with respect to which a Repurchase Notice has been delivered by a Holder may be converted only if the Holder withdraws the Repurchase Notice as described in Section 3.02(d); and
(ix) the procedures that Holders must follow to require the Company to repurchase their Notes, if applicable. Simultaneously with providing such Fundamental Change Repurchase Right Notice, the Company shall publish such information on the Company’s website or through such other public medium as the Company may use at that time.
(c) To exercise the right to cause the Company to repurchase its Notes pursuant to this Article 3, a Holder must deliver, on or before the Business Day prior to the Fundamental Change Repurchase Date, the Notes to be repurchased. If the Notes are Global Notes, such delivery (and the related Repurchase Notice) must comply with all Applicable Procedures. If the Notes are Certificated Notes, such Notes must be duly endorsed for transfer, and must be delivered by the Holder together with a written Repurchase Notice exercising such Holder’s right to require the Company to repurchase its Notes or a portion thereof, substantially in the form included in Exhibit A hereto, duly completed, to the Paying Agent. The “Repurchase Notice” must state:
(i) if the Notes are Certificated Notes, the certificate numbers of the Notes to be delivered for repurchase;
(ii) the portion of the principal amount of the Notes to be repurchased, which must be a minimum of $1,000 or an integral multiple of $1,000 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.
(d) A Holder may withdraw any Repurchase Notice delivered pursuant to Section 3.02(c), in whole or in part, by a written notice of withdrawal delivered to the Paying Agent prior to the close of business on the Business Day immediately preceding the relevant Fundamental Change Repurchase Date. The notice of withdrawal shall state:
(i) the principal amount of the Notes for which the Repurchase Notice has been withdrawn;
(ii) if the Notes are Certificated Notes, the certificate numbers of the withdrawn Notes; and
(iii) the principal amount, if any, which remains subject to the Repurchase Notice; provided that if the Notes are Global Notes, such withdrawal notice must comply with Applicable Procedures.
(e) Holders who have surrendered their Notes for repurchase upon a Fundamental Change in accordance with Section 3.02(c) shall receive payment of the Fundamental Change Repurchase Price promptly following the later of (x) the Fundamental Change Repurchase Date or (y) the time of book-entry transfer or the delivery of the Notes, as applicable. Subject to Section 9.04 and the right of the Holder of record as of the close of business on the relevant Regular Record Date to receive the relevant interest payment on the related Interest Payment Date where the Fundamental Change Repurchase Date falls between such Regular Record Date and such related Interest Payment Date, if the Paying Agent or the Trustee holds money sufficient to pay the Fundamental Change Repurchase Price for the Notes that have been surrendered for repurchase, pursuant to Section 3.02(c), on the Business Day following the Fundamental Change Repurchase Date, then:
(i) such Notes shall cease to be outstanding and interest shall cease to accrue whether or not book-entry transfer of such Notes is made or whether or not such Notes are delivered to the Paying Agent; and
(ii) all other rights of the Holders of such Notes shall terminate other than the right to receive the Fundamental Change Repurchase Price including any accrued and unpaid interest, if any, upon delivery or transfer of the Notes.
Appears in 1 contract
Samples: Indenture (Nuvasive Inc)
Repurchase at Option of the Holder Upon a Fundamental Change. (a) Subject to the satisfaction of the requirements of this Article 3, if If a Fundamental Change occurs shall occur at any timetime prior to __________, 2019, each Holder of Securities shall have the right, at its such Holder's option, to require the Company to repurchase any or all of its Notes, or any portion of Holder's Securities on the principal amount thereof date that is equal to $1,000 or an integral multiple of $1,000, on a date (the “Fundamental Change Repurchase Date”) of the Company’s choosing that is not less than 15 nor more than 35 45 days after the date of the Company's notice of such Fundamental Change Repurchase Right Notice(the "FUNDAMENTAL CHANGE REPURCHASE DATE") (or if such date is not a Business Day, the next succeeding Business Day). The Fundamental Change Securities may be repurchased in integral multiples of $1,000 of Principal Amount. The Company shall repurchase such Securities at a price the Company is required to pay (the “Fundamental Change Repurchase Price”"FUNDAMENTAL CHANGE PURCHASE PRICE") is equal to 100% of the principal amount of the Notes to be repurchased Issue Price plus accrued Original Issue Discount and unpaid interest, if any, to, but not including, the Fundamental Change Repurchase Date; provided that if the Fundamental Change Repurchase Date falls after a Regular Record Date and on or prior to the Interest Payment Date to which it relates, the Company shall instead pay the full amount of accrued and unpaid interest to the Holder of record at 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 the Notes to be repurchased. Any Notes so repurchased by the Company shall be paid for in cash.
(b) In addition to any notice obligation the Company may have under Section 4.01(e) or Section 4.04(a), after the occurrence of a Fundamental Change, but on or before the 15th day following such occurrence, the Company shall notify all Holders of the Notes and the Trustee and Conversion Agent (if other than the Trustee) and the Paying Agent, in writing, of the occurrence of the Fundamental Change and of the resulting repurchase right, if any (the “Fundamental Change Repurchase Right Notice”). Such Fundamental Change Repurchase Right Notice shall state:
(i) the events causing the Fundamental Change;
(ii) the date of the Fundamental Change;
(iii) the last date on which a Holder may exercise the repurchase right, if applicable;
(iv) the Fundamental Change Repurchase Price, if applicable;
(v) the Fundamental Change Repurchase Date, if applicable;
(vi) the name and address of the Paying Agent and the Conversion Agent, if applicable;
(vii) the applicable Conversion Rate and any adjustments to the applicable Conversion Rate;
(viii) that the Notes with respect to which a Repurchase Notice has been delivered by a Holder may be converted only if the Holder withdraws the Repurchase Notice as described in Section 3.02(d); and
(ix) the procedures that Holders must follow to require the Company to repurchase their Notes, if applicable. Simultaneously with providing such Fundamental Change Repurchase Right Notice, the Company shall publish such information on the Company’s website or through such other public medium as the Company may use at that time.
(c) To exercise the right to cause the Company to repurchase its Notes pursuant to this Article 3, a Holder must deliver, on or before the Business Day prior to the Fundamental Change Repurchase Date. No Securities may be repurchased at the option of the Holders as a result of a Fundamental Change if there has occurred and is continuing an Event of Default (other than a default in the payment of the Fundamental Change Purchase Price with respect to such Securities).
(b) The Company, or at its request (which must be received by the Trustee at least three Business Days prior to the date the Trustee is requested to give such notice as described below) the Trustee in the name of and at the expense of the Company, shall mail to all Holders of record of the Securities a notice (a "FUNDAMENTAL CHANGE REPURCHASE NOTICE") of the occurrence of a Fundamental Change and of the repurchase right arising as a result thereof on or before the tenth day after the occurrence of such Fundamental Change. The Company shall promptly furnish the Trustee a copy of such notice.
(c) For a Security to be so repurchased at the option of the Holder, the Notes Paying Agent must receive such Security with the form entitled "Option to be repurchased. If Elect Repurchase Upon a Fundamental Change" on the Notes are Global Notesreverse thereof duly completed, together with such delivery (and the related Repurchase Notice) must comply with all Applicable Procedures. If the Notes are Certificated Notes, such Notes must be Security duly endorsed for transfer, on or before the 45th day after the date of such notice (or if such 45th day is not a Business Day, the immediately preceding Business Day). All questions as to the validity, eligibility (including time of receipt) and must acceptance of any Security for repurchase shall be delivered determined by the Holder together with a written Repurchase Notice exercising such Holder’s right to require the Company to repurchase its Notes or a portion thereofCompany, substantially in the form included in Exhibit A hereto, duly completed, to the Paying Agent. The “Repurchase Notice” must state:whose determination shall be final and binding.
Appears in 1 contract
Repurchase at Option of the Holder Upon a Fundamental Change. (a) Subject to the satisfaction of the requirements of this Article 3Section 3.1, if a Fundamental Change (other than the Semiconductor Business Spin-off pursuant to Section 3.2) occurs at any timetime prior to the Final Maturity Date, each Holder shall will, upon receipt of the notice of the occurrence of a Fundamental Change described in Section 3.1(c), have the right, at its option, right to require the Company to repurchase any or all of its Notes, or any portion of the principal such Holder’s Notes for cash in an amount thereof that is equal to $1,000 or an integral multiple of $1,000, on a date (the “Fundamental Change Repurchase Date”) of the Company’s choosing that is not less than 15 nor more than 35 days after the date of the Fundamental Change Repurchase Right Notice. The Fundamental Change repurchase price the Company is required to pay (the “Fundamental Change Repurchase Price”) is equal to 100101% of the principal amount of the Notes to be repurchased plus accrued and unpaid interest, if any, to, to (but not including, the Fundamental Change Repurchase Date; provided that if ) the Fundamental Change Repurchase Date falls after a Regular Record Date and on or prior to (the Interest Payment Date to which it relates, the Company shall instead pay the full amount of accrued and unpaid interest to the Holder of record at 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 the Notes to be repurchased. Any Notes so repurchased by the Company shall be paid for in cashPrice”).
(b) In addition to any notice obligation the Company may have under Section 4.01(e) or Section 4.04(a), after the occurrence of a Fundamental Change, but on or before the 15th day following 20th Business Day prior to the effective date of a Fundamental Change (which Fundamental Change results in the Holders of such occurrenceNotes having the right to cause the Company to repurchase their Notes), the Company shall notify will provide to all Holders of the Notes and the Trustee and Conversion Agent (if other than the Trustee) and the Paying AgentNotes, in writing, a notice of the occurrence of the Fundamental Change and of the resulting repurchase right, if any right (the “Fundamental Change Repurchase Right Notice”). Such The Fundamental Change Repurchase Right Notice shall state:
(i1) the event or events causing giving rise to the Fundamental Change;
(ii2) the effective date of the Fundamental Change, if applicable;
(iii3) the last date on which a Holder may exercise the its repurchase right, if applicable;
(iv4) the Fundamental Change Repurchase Price, if applicable;
(v5) the Fundamental Change Repurchase Date, if applicable;
(vi) the name and address of the Paying Agent and the Conversion Agent, if applicable;
(vii) the applicable Conversion Rate and any adjustments to the applicable Conversion Rate;
(viii6) that the Notes with respect to which a Repurchase Exercise Notice has been delivered given by a the Holder may be converted pursuant to Section 3.2 or Section 4.1 only if the Holder withdraws the Repurchase Exercise Notice as described in Section 3.02(d3.1(d); and
(ix7) the procedures that Holders must follow to require the Company to repurchase their Notes, if applicable. Simultaneously with providing such Fundamental Change Notes and to withdraw any Repurchase Right Exercise Notice, the Company shall publish such information on the Company’s website or through such other public medium as the Company may use at that time.
(c) To exercise the repurchase right to cause the Company to repurchase its Notes pursuant to this Article 3in connection with a Fundamental Change, a Holder must delivermust, prior to midnight, New York City time, on or before the second Business Day prior to immediately preceding the Fundamental Change Repurchase Date, deliver the Notes to be repurchased. If purchased to the Notes are Global NotesCompany, such delivery (and the related Repurchase Notice) must comply with all Applicable Procedures. If the Notes are Certificated Notes, such Notes must be duly endorsed for transfer, and must be delivered by the Holder together with deliver a written notice of repurchase (a “Repurchase Notice exercising such Holder’s right to require the Company to repurchase its Notes or a portion thereofExercise Notice”), substantially in the form included in Exhibit A hereto, duly completed, to the Paying AgentNote. The “Repurchase Notice” Exercise Notice must state:
(1) the portion of the principal amount of the Notes to be repurchased, which must be equal to $100,000 or an integral multiple thereof; and
(2) that the Notes are to be repurchased by the Company as of the Fundamental Change Repurchase Date pursuant to the applicable provisions of the Notes and this Agreement.
(d) A Holder may withdraw any Repurchase Exercise Notice (in whole or in part) by a written notice of withdrawal delivered to the Company prior to midnight, New York City time, on the second Business Day immediately preceding the Fundamental Change Repurchase Date. The notice of withdrawal must state:
(1) the principal amount of the Notes for which the Repurchase Exercise Notice has been withdrawn; and
(2) the principal amount, if any, that remains subject to the Repurchase Exercise Notice.
(e) The Company must repurchase the Notes for which a Fundamental Change Repurchase Right Notice has been delivered and not withdrawn no less than 20 and no more than 35 Business Days after the date of the Fundamental Change Repurchase Right Notice with respect to the occurrence of the relevant Fundamental Change, subject to extension to comply with applicable law, from all Holders who have complied with Section 3.1(c). Holders will receive payment of the Fundamental Change Repurchase Price promptly following the later of the Fundamental Change Repurchase Date and the time of book-entry transfer or the delivery of the Notes. If the Company holds money sufficient to pay the Fundamental Change Repurchase Price of the Notes on or prior to the Business Day following the Fundamental Change Repurchase Date, then:
(1) the Notes will cease to be outstanding and interest, if any, will cease to accrue; and
(2) all other rights of the Holder will terminate (other than the right to receive the Fundamental Change Repurchase Price upon delivery or transfer of the Notes).
(f) In connection with any offer to purchase or purchase of Notes under Section 3.1, the Company shall comply with all tender offer rules applicable to the Company under the Exchange Act. In the absence of an available exemption as determined by the Company in its sole discretion, the Company shall (a) comply with Rule 13e-4 and Rule 14e-l (or any successor to either such Rule), if applicable, under the Exchange Act, (b) file the related Schedule TO (or any successor or similar schedule, form or report) if required under the Exchange Act, and (c) otherwise comply with all federal and state securities laws in connection with such offer to purchase or purchase of Notes, all so as to permit the rights of the Holders and obligations of the Company under Section 3.1 to be exercised in the time and in the manner specified therein.
Appears in 1 contract
Samples: Senior Secured Convertible Note Purchase Agreement (Focus Enhancements Inc)
Repurchase at Option of the Holder Upon a Fundamental Change. (a) Subject to the satisfaction of the requirements of this Article 3, if a Fundamental Change occurs at any timetime prior to the Maturity Date, each Holder shall have the right, at its option, to require the Company to repurchase for cash all of its Notesthe Holder’s Securities, or any portion of the principal amount thereof that is equal to $1,000 or an integral multiple of $1,000, on at a date (the “Fundamental Change Repurchase Date”) of the Company’s choosing that is not less than 15 nor more than 35 days after the date of the Fundamental Change Repurchase Right Notice. The Fundamental Change repurchase price the Company is required to pay (the “Fundamental Change Repurchase Price”) is equal to 100% of the principal amount of the Notes Securities to be repurchased plus accrued and unpaid interest, if any, to, but not includingexcluding, the Fundamental Change Repurchase Date; provided that if the Date (unless such Fundamental Change Repurchase Date falls after a Regular Record Date and but on or prior to the Interest Payment Date to which it such Regular Record Date relates, in which case the Company shall instead pay the full amount of accrued and unpaid interest to the Holder of record at the close of business on such Regular Record Date, Date and the Fundamental Change Repurchase Price shall be equal to 100% of the principal amount of the Notes Securities to be repurchased. Any Notes so repurchased by the Company shall be paid for in cash).
(ba) In addition to any notice obligation On or before the Company may have under Section 4.01(e) or Section 4.04(a), 20th day after the occurrence of a Fundamental Change, but on or before the 15th day following such occurrence, the Company shall notify provide to all Holders of the Notes and Holders, the Trustee and Conversion Agent (if other than the Trustee) and the Paying Agent, in writing, Agent a notice of the occurrence of the Fundamental Change and of the resulting repurchase right, if any right (the “Fundamental Change Repurchase Right Notice”). Such The Fundamental Change Repurchase Right Notice shall state, among other things:
(i) the events causing the a Fundamental Change;
(ii) the date of the Fundamental Change;
(iii) the last date on which a Holder may exercise the repurchase right, if applicable;
(iv) the Fundamental Change Repurchase Price, if applicable;
(v) the Fundamental Change Repurchase Date, if applicable;
(vi) the name and address of the Paying Agent and the Conversion Agent, if applicable;
(vii) the applicable Conversion Rate and and, if applicable, any adjustments to the applicable Conversion Rate;
(viii) that the Notes Securities with respect to which a Repurchase Exercise Notice has been delivered given by a the Holder may be converted only if the Holder withdraws the Repurchase Exercise Notice as described below in Section 3.02(d3.05(c); and
(ix) the procedures that Holders must follow to require the Company to repurchase their Notes, if applicableSecurities. Simultaneously with providing such the Fundamental Change Repurchase Right Notice, the Company shall publish such a notice containing this information in a newspaper of general circulation in the City of New York or publish the information on the Company’s its website or through such other public medium as the Company may use at that time.
(cb) To exercise Repurchases of Securities under this Section 3.05 shall be made, at the right option of the Holder thereof, upon:
(i) delivery to cause the Company to repurchase its Notes pursuant to this Article 3, Paying Agent by a Holder must deliverof a duly completed notice (a “Repurchase Exercise Notice”) substantially in the form set forth in Exhibit A hereto, if the Securities are Certificated Securities, or in compliance with the Depositary’s Applicable Procedures for surrendering interests in Global Securities, if the Securities are Global Securities, in each case prior to the close of business on or before the Business Day prior to immediately preceding the Fundamental Change Repurchase Date, the Notes to be repurchased. If the Notes are Global Notes, such delivery (and the related Repurchase Notice) must comply with all Applicable Procedures. If the Notes are Certificated Notes, such Notes must be duly endorsed for transfer, and must be delivered by the Holder together with a written Repurchase Notice exercising such Holder’s right to require the Company to repurchase its Notes or a portion thereof, substantially in the form included in Exhibit A hereto, duly completed, to the Paying Agent. The “Repurchase Notice” must state:; and
Appears in 1 contract
Samples: Indenture (Ezcorp Inc)
