Common use of Repurchase of Debentures at Option of the Holder upon a Change of Control Clause in Contracts

Repurchase of Debentures at Option of the Holder upon a Change of Control. (1) If a Change of Control occurs prior to the Maturity Date, the Corporation shall make an offer to each Holder to: (a) purchase all or a portion of the Debentures of such Holder for a cash payment equal to the Change of Control Repurchase Price (with respect to the Debentures so converted) (the "Repayment Offer"); or (b) convert all or a portion of the Debentures of such Holder into such number of Common Shares equal to the Change of Control Repurchase Price (with respect to the Debentures so converted) divided by the Conversion Price (the "Conversion Offer", together with the Repayment Offer, the "Change of Control Offer"), in each case, to occur on the Change of Control Repurchase Date, provided that in the event that a Debentureholder does not accept or exercise the Change of Control Offer in accordance with the terms of this Indenture, the Corporation will have the right, but not the obligation, in its sole discretion, to carry out either the purchase or conversion pursuant to the Change of Control Offer, in its sole discretion, on the Change of Control Repurchase Date. (2) As promptly as practicable following the date on which the Corporation announces the Change of Control, but in no event less than 30 days prior to the anticipated date of completion of a Change of Control, the Corporation shall mail a written notice of the Change of Control to the Trustee and to each Holder (and to beneficial Holders as required by Applicable Securities Laws) (the "Change of Control Notice"). The Change of Control Notice shall include the form of a Change of Control Repurchase Notice (as defined below) to be completed by the Holder and shall state the Change of Control Offer and the following: (i) the events causing such Change of Control; (ii) the date of such Change of Control; (iii) the last date by which the Change of Control Repurchase Notice must be delivered to elect an option pursuant to this Section 3.3; (iv) the Change of Control Repurchase Date; (v) the Change of Control Repurchase Price; (vi) the Holder’s right to require the Corporation to purchase all or a portion of the Debentures, or to convert all or a portion of the Debentures, pursuant to the Change of Control Offer; (vii) the name and address of the Trustee; (viii) the procedures that the Holder must follow to exercise rights under this Section 3.3; (ix) the procedures that the Holder must follow to withdraw a Change of Control Repurchase Notice; (x) that, unless the Corporation fails to pay such Change of Control Repurchase Price, Debentures covered by any Change of Control Repurchase Notice will cease to be outstanding and interest will cease to accrue on and after the Change of Control Repurchase Date; (xi) that the in the event that such Holder does not accept or exercise the Change of Control Offer in accordance with the terms of this Indenture, the Corporation will have the right, but not the obligation, to carry out the repurchase or conversion pursuant to the Change of Control Offer, in its sole discretion, on the Change of Control Repurchase Date, and that Debentures so purchase or converted by the Corporation will cease to be outstanding and interest will cease to accrue on and after the Change of Control Purchase Date; and (xii) the CUSIP number of the Debentures. At the Corporation’s request, the Trustee shall give such Change of Control Notice in the Corporation’s name, at the Corporation’s expense, and within the notice period set out above; provided, that, in all cases, the text of such Change of Control Notice shall be prepared by the Corporation. (3) A Holder may exercise its rights specified in this Section 3.3 upon delivery of a written notice and which may be delivered by letter, overnight courier, hand delivery, electronic transmission or in any other written form and, in the case of Uncertificated Debentures, may be delivered electronically or by other means in accordance with the Depository’s applicable procedures) of the exercise of such rights (a "Change of Control Repurchase Notice") to the Corporation or the Trustee at any time prior to the close of business on the fifth Business Day prior to the Change of Control Repurchase Date, subject to extension to comply with Applicable Laws. (4) The Change of Control Repurchase Notice shall state: (i) the certificate number of the Debenture which the Holder will deliver to be purchased or exchanged (or, if the Debenture is in Uncertificated Debenture form, any other items required to comply with the applicable procedures), (ii) the portion of the principal amount of the Debenture which the Holder will deliver to be purchased or converted, in integral multiples of $1,000, and (iii) that such Debenture shall be purchased or converted as of the Change of Control Repurchase Date pursuant to the terms and conditions specified in the Debentures and in this Indenture. (5) The delivery of a Debenture for which a Change of Control Repurchase Notice has been timely delivered to the Trustee and not validly withdrawn prior to, on or after the Change of Control Repurchase Date (together with all necessary endorsements) at the office of the Trustee shall be a condition to the receipt by the Holder of the Change of Control Repurchase Price or Common Shares therefor. (6) The Corporation shall only be obliged to purchase or exchange, pursuant to this Section 3.3, a portion of a Debenture if the principal amount of such portion is $1,000 or an integral multiple of $1,000 (provisions of this Indenture that apply to the purchase of all of a Debenture also apply to the purchase of such portion of such Debenture). (7) Notwithstanding anything herein to the contrary, any Holder delivering to the Trustee the Change of Control Repurchase Notice contemplated by this Section 3.3 shall have the right to withdraw such Change of Control Repurchase Notice in whole or in a portion thereof that is a principal amount of $1,000 or in an integral multiple thereof, at any time prior to the close of business on the fifth Business Day prior to the Change of Control Repurchase Date by delivery of a written notice of withdrawal to the Trustee in accordance with the procedures set out in the Change of Control Notice or, if not set out therein, then in accordance with this Section 3.3(7). (8) The Trustee shall promptly notify the Corporation of the receipt by it of any Change of Control Repurchase Notice or written withdrawal thereof. (9) Anything herein to the contrary notwithstanding, in the case of Uncertificated Debentures, any Change of Control Repurchase Notice may be delivered or withdrawn and such securities may be surrendered or delivered for purchase in accordance with the applicable procedures of the Depository as in effect from time to time. (10) Upon receipt by the Trustee of a properly completed Change of Control Repurchase Notice from a Holder, the Holder of the Debenture in respect of which such Change of Control Repurchase Notice was given shall (unless such Change of Control Repurchase Notice is withdrawn as specified in Section 3.3(11)), thereafter be entitled to receive the Change of Control Repurchase Price or Common Shares thereof, as the case may be, with respect to such Debenture, subject to there being no Event of Default then occurring including a continuation thereof (other than a default in the payment of the Change of Control Repurchase Price). The Change of Control Repurchase Price shall be paid or the Common Shares issued to such Holder promptly following the later of (i) the Change of Control Repurchase Date and (ii) the time of delivery of such Debenture to the Trustee by the Holder thereof in the manner required by this Section 3.3. (11) A Change of Control Repurchase Notice may be withdrawn by means of a written notice (which may be delivered by mail, overnight courier, hand delivery, electronic transmission or in any other written form and, in the case of Uncertificated Debentures, may be delivered electronically or by other means in accordance with the applicable procedures of the Depository) of withdrawal delivered by the Holder to the Trustee at any time prior to the close of business on the fifth Business Day immediately prior to the Change of Control Repurchase Date, specifying (1) the principal amount of the Debenture or portion thereof (which must be a principal amount of $1,000 or an integral multiple of $1,000 in excess thereof), with respect to which such notice of withdrawal is being submitted, (2) if Certificated Debentures have been issued, the certificate number of the Debentures being withdrawn in whole or in withdrawable part (or if the Debentures are not Uncertificated Debentures, such written notice must comply with the applicable procedures of the Depository) and (3) the portion of the principal amount of the Debentures that will remain subject to the Change of Control Repurchase Notice, which portion must be a principal amount of $1,000 or an integral multiple thereof. (12) On or before 12:00 p.m. (Calgary time) on the Business Day prior to the applicable Change of Control Repurchase Date, the Corporation shall deposit with the Trustee an amount of money (in immediately available funds if deposited on or after such Change of Control Repurchase Date), sufficient to pay the aggregate Change of Control Repurchase Price of all the Debentures or portions thereof that are to be purchased as of such Change of Control Repurchase Date, and/or shall deposit with the Trustee or cause to be issued such number of Common Shares as is equal to the number of Common Shares to be issued to Holders on the Change of Control Repurchase Date pursuant to the conversion of the Debentures. (13) If a Trustee holds, in accordance with the terms hereof, money sufficient to pay the Change of Control Repurchase Price, and/or such number of Common Shares as is necessary to satisfy the conversion, of any Debenture for which a Change of Control Repurchase Notice has been tendered and not withdrawn in accordance with this Indenture then, on the Business Day following the applicable Change of Control Repurchase Date, such Debenture will cease to be outstanding, whether or not the Debenture is delivered to the Trustee, and interest shall cease to accrue, and the rights of the Holder in respect of the Debenture shall terminate (other than the right to receive the Change of Control Repurchase Price and/or Common Shares as aforesaid). The Corporation shall publicly announce the principal amount of Debentures purchased and/or converted on or as soon as practicable after the Change of Control Repurchase Date. (14) The Trustee will promptly return to the respective Holders thereof any Debentures with respect to which a Change of Control Repurchase Notice has been withdrawn in compliance with this Indenture and which has not been repurchased or converted by the Corporation in accordance with the terms of this Indenture. (15) If a Change of Control Repurchase Date falls after an Payment Record Date and on or before the related Interest Payment Date, then interest on the Debentures payable on such Interest Payment Date will be payable to the Holders in whose names the Debentures are registered at the close of business on such Payment Record Date.

Appears in 2 contracts

Samples: Indenture, Indenture

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Repurchase of Debentures at Option of the Holder upon a Change of Control. (1a) If a Change of Control occurs prior to the Maturity Date, the Corporation Issuer shall make an offer to each Holder to: (a) purchase the Holders to repurchase for cash on the Change of Control Repurchase Date all or a any portion of the Debentures of each such Holder for a cash payment equal to Holder, at the Change of Control Repurchase Price (with respect to the Debentures so converted) (the "Repayment Offer"); or (b) convert all or a portion of the Debentures of such Holder into such number of Common Shares equal to the Change of Control Repurchase Price (with respect to the Debentures so converted) divided by the Conversion Price (the "Conversion Offer", together with the Repayment Offer, the "Change of Control Offer"), in each case, to occur on the Change of Control Repurchase Date, ”) (provided that in the event that case of a Debentureholder does not accept or exercise the Change of Control Offer caused by Fairfax or any Affiliate thereof, whether by itself or together with any other Person with whom Fairfax or any such Affiliate is acting jointly or in accordance with the terms of this Indentureconcert, the Corporation will have the right, but Issuer shall not the obligation, in its sole discretion, be required to carry out either the purchase or conversion pursuant to the make a Change of Control Offer, in its sole discretion, on the Change of Control Repurchase Date. (2) Repayment Offer with respect to any Debentures beneficially held by Fairfax or any Affiliate thereof or any other such Person). As promptly as practicable following the date on which the Corporation announces the Change of Control, but in no any event less than 30 within ten (10) days prior to after the anticipated date occurrence of completion of a such Change of Control, the Corporation Issuer shall mail a written provide notice of the Change of Control to the Trustee and to each Holder (the Holders in the manner provided in sections 16.2 and to beneficial Holders as required by Applicable Securities Laws) 16.3 (the "Change of Control Issuer Notice"). The Change of Control Issuer Notice shall include the form of a Change of Control Repurchase Notice (as defined below) to be completed by the Holder and shall state the Change of Control Repayment Offer and the following: : (i) the events causing such Change of Control; ; (ii) the date of such Change of Control; ; (iii) the last date by which the Change of Control Repurchase Notice must be delivered to elect an the repurchase option pursuant to this Section 3.3; section 3.2; (iv) the Change of Control Repurchase Date; ; (v) the Change of Control Repurchase Price; ; (vi) the Holder’s right to require the Corporation Issuer to purchase all or a portion of the Debentures, or to convert all or a portion of the Debentures, pursuant to Debentures held by such Holder by accepting the Change of Control Repayment Offer; ; (vii) the name and address of the Trustee; ; (viii) the then effective Conversion Price and Conversion Rate and any adjustments to the Conversion Rate resulting from such Change of Control and details of all such calculations; (ix) the procedures that the Holder must follow to exercise conversion rights under Article 5 and that Debentures as to which a Change of Control Repurchase Notice has been given may be converted into Common Shares pursuant to Article 5 of this Indenture only to the extent that the Change of Control Repurchase Notice has been withdrawn in accordance with the terms of this Indenture; (x) the procedures that the Holder must follow to exercise rights under this Section 3.3; section 3.2; (ixxi) the procedures that the Holder must follow to withdraw a Change of Control Repurchase Notice; ; (xxii) that, unless the Corporation Issuer fails to pay such Change of Control Repurchase Price, Debentures covered by any Change of Control Repurchase Notice will cease to be outstanding and interest will cease to accrue on and after the Change of Control Repurchase Date; and (xi) that the in the event that such Holder does not accept or exercise the Change of Control Offer in accordance with the terms of this Indenture, the Corporation will have the right, but not the obligation, to carry out the repurchase or conversion pursuant to the Change of Control Offer, in its sole discretion, on the Change of Control Repurchase Date, and that Debentures so purchase or converted by the Corporation will cease to be outstanding and interest will cease to accrue on and after the Change of Control Purchase Date; and (xiixiii) the CUSIP number of the Debentures. At the CorporationIssuer’s request, the Trustee shall give such Change of Control Issuer Notice in the CorporationIssuer’s name, at the CorporationIssuer’s expense, and within the notice period set out above; provided, that, in all cases, the text of such Change of Control Issuer Notice shall be prepared by the CorporationIssuer. If any of the Debentures is in the form of a Book-Entry Only Debenture, then the Issuer shall modify such notice to the extent necessary to accord with the applicable procedures at the Book-Based System relating to the purchase of Book-Entry Only Debentures. (3b) A Holder may exercise its rights specified in this Section 3.3 upon delivery accept a Change of Control Repayment Offer by delivering a written notice and (which may be delivered by letter, overnight courier, hand delivery, electronic facsimile transmission or in any other written form and, in the case of Uncertificated DebenturesBook-Entry Only Debenture, may be delivered electronically or by other means in accordance with the applicable Depository’s applicable procedures) of the exercise of such rights acceptance (a "Change of Control Repurchase Notice") to the Corporation Issuer or the Trustee at any time prior to the close of business on the fifth second Business Day prior to next preceding the Change of Control Repurchase Date, subject to extension to comply with Applicable Laws. (4i) The Change of Control Repurchase Notice shall state: (iA) the certificate number (if such Debenture is held other than in global form) of the Debenture which the Holder will deliver to be purchased or exchanged (or, if the Debenture is in Uncertificated a Book-Entry Only Debenture form, any other items required to comply with the applicable procedures), (iiB) the portion of the principal amount of the Debenture which the Holder will deliver to be purchased or convertedpurchased, in integral multiples of $1,000, and (iiiC) that such Debenture shall be purchased or converted as of the Change of Control Repurchase Date pursuant to the terms and conditions specified in the Debentures and in this Indenture. (5ii) The delivery of a Debenture (if such Debenture is held other than in global form) for which a Change of Control Repurchase Notice has been timely delivered to the Trustee and not validly withdrawn prior to, on or after the Change of Control Repurchase Date (together with all necessary endorsements) at the office of the Trustee shall be a condition to the receipt by the Holder of the Change of Control Repurchase Price or Common Shares therefor. (6iii) The Corporation Issuer shall only be obliged to purchase or exchangepurchase, pursuant to this Section 3.3section 3.2, a portion of a Debenture if the principal amount of such portion is $1,000 or an integral multiple of $1,000 (provisions of this Indenture that apply to the purchase of all of a Debenture also apply to the purchase of such portion of such Debenture). (7c) Notwithstanding anything herein to the contrary, any Holder delivering to the Trustee the Change of Control Repurchase Notice contemplated by this Section 3.3 section 3.2 shall have the right to withdraw such Change of Control Repurchase Notice in whole or in a portion thereof that is a principal amount of $1,000 or in an integral multiple thereof, at any time prior to the close of business on the fifth third Business Day prior to the Change of Control Repurchase Date by delivery of a written notice of withdrawal to the Trustee in accordance with the procedures set out in the Change of Control Issuer Notice or, if not set out therein, then in accordance with this Section 3.3(7)section 3.3. (8) d) The Trustee shall promptly notify the Corporation Issuer of the receipt by it of any Change of Control Repurchase Notice or written withdrawal thereof. (9e) Anything herein to the contrary notwithstanding, in the case of Uncertificated Book-Entry Only Debentures, any Change of Control Repurchase Notice may be delivered or withdrawn and such securities may be surrendered or delivered for purchase in accordance with the applicable procedures of the Depository Book-Based System as in effect from time to time. (10) Upon receipt by the Trustee of a properly completed Change of Control Repurchase Notice from a Holder, the Holder of the Debenture in respect of which such Change of Control Repurchase Notice was given shall (unless such Change of Control Repurchase Notice is withdrawn as specified in Section 3.3(11)), thereafter be entitled to receive the Change of Control Repurchase Price or Common Shares thereof, as the case may be, with respect to such Debenture, subject to there being no Event of Default then occurring including a continuation thereof (other than a default in the payment of the Change of Control Repurchase Price). The Change of Control Repurchase Price shall be paid or the Common Shares issued to such Holder promptly following the later of (i) the Change of Control Repurchase Date and (ii) the time of delivery of such Debenture to the Trustee by the Holder thereof in the manner required by this Section 3.3. (11) A Change of Control Repurchase Notice may be withdrawn by means of a written notice (which may be delivered by mail, overnight courier, hand delivery, electronic transmission or in any other written form and, in the case of Uncertificated Debentures, may be delivered electronically or by other means in accordance with the applicable procedures of the Depository) of withdrawal delivered by the Holder to the Trustee at any time prior to the close of business on the fifth Business Day immediately prior to the Change of Control Repurchase Date, specifying (1) the principal amount of the Debenture or portion thereof (which must be a principal amount of $1,000 or an integral multiple of $1,000 in excess thereof), with respect to which such notice of withdrawal is being submitted, (2) if Certificated Debentures have been issued, the certificate number of the Debentures being withdrawn in whole or in withdrawable part (or if the Debentures are not Uncertificated Debentures, such written notice must comply with the applicable procedures of the Depository) and (3) the portion of the principal amount of the Debentures that will remain subject to the Change of Control Repurchase Notice, which portion must be a principal amount of $1,000 or an integral multiple thereof. (12) On or before 12:00 p.m. (Calgary time) on the Business Day prior to the applicable Change of Control Repurchase Date, the Corporation shall deposit with the Trustee an amount of money (in immediately available funds if deposited on or after such Change of Control Repurchase Date), sufficient to pay the aggregate Change of Control Repurchase Price of all the Debentures or portions thereof that are to be purchased as of such Change of Control Repurchase Date, and/or shall deposit with the Trustee or cause to be issued such number of Common Shares as is equal to the number of Common Shares to be issued to Holders on the Change of Control Repurchase Date pursuant to the conversion of the Debentures. (13) If a Trustee holds, in accordance with the terms hereof, money sufficient to pay the Change of Control Repurchase Price, and/or such number of Common Shares as is necessary to satisfy the conversion, of any Debenture for which a Change of Control Repurchase Notice has been tendered and not withdrawn in accordance with this Indenture then, on the Business Day following the applicable Change of Control Repurchase Date, such Debenture will cease to be outstanding, whether or not the Debenture is delivered to the Trustee, and interest shall cease to accrue, and the rights of the Holder in respect of the Debenture shall terminate (other than the right to receive the Change of Control Repurchase Price and/or Common Shares as aforesaid). The Corporation shall publicly announce the principal amount of Debentures purchased and/or converted on or as soon as practicable after the Change of Control Repurchase Date. (14) The Trustee will promptly return to the respective Holders thereof any Debentures with respect to which a Change of Control Repurchase Notice has been withdrawn in compliance with this Indenture and which has not been repurchased or converted by the Corporation in accordance with the terms of this Indenture. (15) If a Change of Control Repurchase Date falls after an Payment Record Date and on or before the related Interest Payment Date, then interest on the Debentures payable on such Interest Payment Date will be payable to the Holders in whose names the Debentures are registered at the close of business on such Payment Record Date.

Appears in 1 contract

Samples: Subscription Agreement (Fairfax Financial Holdings LTD/ Can)

Repurchase of Debentures at Option of the Holder upon a Change of Control. (1a) If a Change of Control occurs prior to the Maturity Date, the Corporation Issuer shall make an offer to each Holder to: (a) purchase the Holders to repurchase for cash on the Change of Control Repurchase Date all or a any portion of the Debentures of each such Holder for a cash payment equal to Holder, at the Change of Control Repurchase Price (with respect to the Debentures so converted) (the "Repayment Offer"); or (b) convert all or a portion of the Debentures of such Holder into such number of Common Shares equal to the Change of Control Repurchase Price (with respect to the Debentures so converted) divided by the Conversion Price (the "Conversion Offer", together with the Repayment Offer, the "Change of Control Offer"), in each case, to occur on the Change of Control Repurchase Date, ”) (provided that in the event that case of a Debentureholder does not accept or exercise the Change of Control Offer caused by Fairfax or any Affiliate thereof, whether by itself or together with any other Person with whom Fairfax or any such Affiliate is acting jointly or in accordance with the terms of this Indentureconcert, the Corporation will have the right, but Issuer shall not the obligation, in its sole discretion, be required to carry out either the purchase or conversion pursuant to the make a Change of Control Offer, in its sole discretion, on the Change of Control Repurchase Date. (2) Repayment Offer with respect to any Debentures beneficially held by Fairfax or any Affiliate thereof or any other such Person). As promptly as practicable following the date on which the Corporation announces the Change of Control, but in no any event less than 30 within ten (10) days prior to after the anticipated date occurrence of completion of a such Change of Control, the Corporation Issuer shall mail a written provide notice of the Change of Control to the Trustee and to each Holder (the Holders in the manner provided in sections 16.2 and to beneficial Holders as required by Applicable Securities Laws) 16.3 (the "Change of Control Issuer Notice"). The Change of Control Issuer Notice shall include the form of a Change of Control Repurchase Notice (as defined below) to be completed by the Holder and shall state the Change of Control Repayment Offer and the following: : (i) the events causing such Change of Control; ; (ii) the date of such Change of Control; ; (iii) the last date by which the Change of Control Repurchase Notice must be delivered to elect an the repurchase option pursuant to this Section 3.3; section 3.2; (iv) the Change of Control Repurchase Date; ; (v) the Change of Control Repurchase Price; ; (vi) the Holder’s right to require the Corporation Issuer to purchase all or a portion of the Debentures, or to convert all or a portion of the Debentures, pursuant to Debentures held by such Holder by accepting the Change of Control Repayment Offer; ; (vii) the name and address of the Trustee; ; (viii) the then effective Conversion Price and Conversion Rate and any adjustments to the Conversion Rate resulting from such Change of Control and details of all such calculations; (ix) the procedures that the Holder must follow to exercise conversion rights under Article 5 and that Debentures as to which a Change of Control Repurchase Notice has been given may be converted into Common Shares pursuant to Article 5 of this Indenture only to the extent that the Change of Control Repurchase Notice has been withdrawn in accordance with the terms of this Indenture; (x) the procedures that the Holder must follow to exercise rights under this Section 3.3; section 3.2; (ixxi) the procedures that the Holder must follow to withdraw a Change of Control Repurchase Notice; ; (xxii) that, unless the Corporation Issuer fails to pay such Change of Control Repurchase Price, Debentures covered by any Change of Control Repurchase Notice will cease to be outstanding and interest will cease to accrue on and after the Change of Control Repurchase Date; and (xi) that the in the event that such Holder does not accept or exercise the Change of Control Offer in accordance with the terms of this Indenture, the Corporation will have the right, but not the obligation, to carry out the repurchase or conversion pursuant to the Change of Control Offer, in its sole discretion, on the Change of Control Repurchase Date, and that Debentures so purchase or converted by the Corporation will cease to be outstanding and interest will cease to accrue on and after the Change of Control Purchase Date; and (xiixiii) the CUSIP number of the Debentures. At the CorporationIssuer’s request, the Trustee shall give such Change of Control Issuer Notice in the CorporationIssuer’s name, at the CorporationIssuer’s expense, and within the notice period set out above; provided, that, in all cases, the text of such Change of Control Issuer Notice shall be prepared by the CorporationIssuer. If any of the Debentures is in the form of a Book-Entry Only Debenture, then the Issuer shall modify such notice to the extent necessary to accord with the applicable procedures at the Book-Based System relating to the purchase of Book-Entry Only Debentures. (3b) A Holder may exercise its rights specified in this Section 3.3 upon delivery accept a Change of Control Repayment Offer by delivering a written notice and (which may be delivered by letter, overnight courier, hand delivery, electronic facsimile transmission or in any other written form and, in the case of Uncertificated DebenturesBook-Entry Only Debenture, may be delivered electronically or by other means in accordance with the Depository’s applicable procedures) of the exercise of such rights acceptance (a "Change of Control Repurchase Notice") to the Corporation Issuer or the Trustee at any time prior to the close of business on the fifth second Business Day prior to next preceding the Change of Control Repurchase Date, subject to extension to comply with Applicable Laws. (4i) The Change of Control Repurchase Notice shall state: (iA) the certificate number (if such Debenture is held other than in global form) of the Debenture which the Holder will deliver to be purchased or exchanged (or, if the Debenture is in Uncertificated a Book-Entry Only Debenture form, any other items required to comply with the applicable procedures), (iiB) the portion of the principal amount of the Debenture which the Holder will deliver to be purchased or convertedpurchased, in integral multiples of $1,000, and (iiiC) that such Debenture shall be purchased or converted as of the Change of Control Repurchase Date pursuant to the terms and conditions specified in the Debentures and in this Indenture. (5ii) The delivery of a Debenture (if such Debenture is held other than in global form) for which a Change of Control Repurchase Notice has been timely delivered to the Trustee and not validly withdrawn prior to, on or after the Change of Control Repurchase Date (together with all necessary endorsements) at the office of the Trustee shall be a condition to the receipt by the Holder of the Change of Control Repurchase Price or Common Shares therefor. (6iii) The Corporation Issuer shall only be obliged to purchase or exchangepurchase, pursuant to this Section 3.3section 3.2, a portion of a Debenture if the principal amount of such portion is $1,000 or an integral multiple of $1,000 (provisions of this Indenture that apply to the purchase of all of a Debenture also apply to the purchase of such portion of such Debenture). (7c) Notwithstanding anything herein to the contrary, any Holder delivering to the Trustee the Change of Control Repurchase Notice contemplated by this Section 3.3 section 3.2 shall have the right to withdraw such Change of Control Repurchase Notice in whole or in a portion thereof that is a principal amount of $1,000 or in an integral multiple thereof, at any time prior to the close of business on the fifth third Business Day prior to the Change of Control Repurchase Date by delivery of a written notice of withdrawal to the Trustee in accordance with the procedures set out in the Change of Control Issuer Notice or, if not set out therein, then in accordance with this Section 3.3(7)section 3.3. (8) d) The Trustee shall promptly notify the Corporation Issuer of the receipt by it of any Change of Control Repurchase Notice or written withdrawal thereof. (9e) Anything herein to the contrary notwithstanding, in the case of Uncertificated Book-Entry Only Debentures, any Change of Control Repurchase Notice may be delivered or withdrawn and such securities may be surrendered or delivered for purchase in accordance with the applicable procedures of the Depository Book-Based System as in effect from time to time. (10) Upon receipt by the Trustee of a properly completed Change of Control Repurchase Notice from a Holder, the Holder of the Debenture in respect of which such Change of Control Repurchase Notice was given shall (unless such Change of Control Repurchase Notice is withdrawn as specified in Section 3.3(11)), thereafter be entitled to receive the Change of Control Repurchase Price or Common Shares thereof, as the case may be, with respect to such Debenture, subject to there being no Event of Default then occurring including a continuation thereof (other than a default in the payment of the Change of Control Repurchase Price). The Change of Control Repurchase Price shall be paid or the Common Shares issued to such Holder promptly following the later of (i) the Change of Control Repurchase Date and (ii) the time of delivery of such Debenture to the Trustee by the Holder thereof in the manner required by this Section 3.3. (11) A Change of Control Repurchase Notice may be withdrawn by means of a written notice (which may be delivered by mail, overnight courier, hand delivery, electronic transmission or in any other written form and, in the case of Uncertificated Debentures, may be delivered electronically or by other means in accordance with the applicable procedures of the Depository) of withdrawal delivered by the Holder to the Trustee at any time prior to the close of business on the fifth Business Day immediately prior to the Change of Control Repurchase Date, specifying (1) the principal amount of the Debenture or portion thereof (which must be a principal amount of $1,000 or an integral multiple of $1,000 in excess thereof), with respect to which such notice of withdrawal is being submitted, (2) if Certificated Debentures have been issued, the certificate number of the Debentures being withdrawn in whole or in withdrawable part (or if the Debentures are not Uncertificated Debentures, such written notice must comply with the applicable procedures of the Depository) and (3) the portion of the principal amount of the Debentures that will remain subject to the Change of Control Repurchase Notice, which portion must be a principal amount of $1,000 or an integral multiple thereof. (12) On or before 12:00 p.m. (Calgary time) on the Business Day prior to the applicable Change of Control Repurchase Date, the Corporation shall deposit with the Trustee an amount of money (in immediately available funds if deposited on or after such Change of Control Repurchase Date), sufficient to pay the aggregate Change of Control Repurchase Price of all the Debentures or portions thereof that are to be purchased as of such Change of Control Repurchase Date, and/or shall deposit with the Trustee or cause to be issued such number of Common Shares as is equal to the number of Common Shares to be issued to Holders on the Change of Control Repurchase Date pursuant to the conversion of the Debentures. (13) If a Trustee holds, in accordance with the terms hereof, money sufficient to pay the Change of Control Repurchase Price, and/or such number of Common Shares as is necessary to satisfy the conversion, of any Debenture for which a Change of Control Repurchase Notice has been tendered and not withdrawn in accordance with this Indenture then, on the Business Day following the applicable Change of Control Repurchase Date, such Debenture will cease to be outstanding, whether or not the Debenture is delivered to the Trustee, and interest shall cease to accrue, and the rights of the Holder in respect of the Debenture shall terminate (other than the right to receive the Change of Control Repurchase Price and/or Common Shares as aforesaid). The Corporation shall publicly announce the principal amount of Debentures purchased and/or converted on or as soon as practicable after the Change of Control Repurchase Date. (14) The Trustee will promptly return to the respective Holders thereof any Debentures with respect to which a Change of Control Repurchase Notice has been withdrawn in compliance with this Indenture and which has not been repurchased or converted by the Corporation in accordance with the terms of this Indenture. (15) If a Change of Control Repurchase Date falls after an Payment Record Date and on or before the related Interest Payment Date, then interest on the Debentures payable on such Interest Payment Date will be payable to the Holders in whose names the Debentures are registered at the close of business on such Payment Record Date.

Appears in 1 contract

Samples: Indenture (Fairfax Financial Holdings LTD/ Can)

Repurchase of Debentures at Option of the Holder upon a Change of Control. (1a) If Upon the occurrence of a Change of Control occurs prior to the Maturity Date, each Holder of Debentures has the right to require the Corporation shall make an offer to each Holder to:to:‌ (ai) purchase repurchase for cash all or a such portion of the Debentures of such Holder for a cash payment Holders equal to $1,000 principal amount (or an integral multiple thereof) which are Outstanding immediately prior to such Change of Control, at a price equal to 105% of the principal amount of the Debentures then Outstanding plus any accrued and unpaid interest thereon (the “Change of Control Repurchase Price”) on the Change of Control Repurchase Price (with respect to the Debentures so converted) Date (the "Repayment Offer"); oror‌ (bii) convert if as a result of the Change of Control there is or will be a Successor Entity, subject to Applicable Law, exchange all or a such portion of the Debentures of such Holder into such number of Common Shares Holders equal to the $1,000 principal amount (or an integral multiple thereof) which are Outstanding immediately prior to such Change of Control Repurchase Price into debentures of the Successor Entity (the “Exchanged Debentures”), with respect each $1,000 principal amount (or an integral multiple thereof) being exchanged for unsecured convertible debentures of the Successor Entity with a principal amount of $1,000 with interest, payment and maturity provisions that are economically equivalent to the Debentures so converted) divided by the Conversion Price (the "Conversion “Exchange Offer", ” and together with the Repayment Offer, the "Change of Control Offer"), in each caseprovided that if 90% or more of the principal amount of all of the Debentures then Outstanding on the date of the Change of Control Notice are tendered for redemption pursuant to the Repayment Offer, the Exchange Offer shall be deemed to occur on be withdrawn and the Corporation shall have the right, at its option, at any time within 30 days of the Change of Control Repurchase Date, provided that in the event that a Debentureholder does not accept or exercise the Change Date of Control Offer in accordance with the terms of this Indenture, the Corporation will have the right, but not the obligation, in its sole discretion, to carry out either the purchase or conversion pursuant to the such Change of Control Offer, in its sole discretionto elect to redeem all, on but not less than all, of the remaining Debentures that are then Outstanding, at the Change of Control Repurchase DatePrice of such Repayment Offer. (2b) As promptly as practicable following the date on which the Corporation announces the Change of Control, but in no event less than 30 days prior to the anticipated date of completion of a Change of Control, the Corporation shall mail a written notice of the Change of Control to the Trustee and to each Holder (and to beneficial Holders as required by Applicable Securities Laws) (the "Change of Control Notice"). The Change of Control Notice shall include the form of a Change of Control Repurchase Notice (as defined below) to be completed by the Holder and shall state the Change of Control Offer and the following: (i) the events causing such Change of Control; (ii) the date (or expected date) of such Change of Control; (iii) the last date by which the Change of Control Repurchase Notice must be delivered to elect an option pursuant to this Section 3.33.1; (iv) the Change of Control Repurchase Date; (v) the Change of Control Repurchase Price; (vi) the Holder’s right to require the Corporation to purchase all or a portion of the Debentures, or to convert all or a portion of the Debentures, pursuant to the Change of Control Offer; (vii) the name and address of the Trustee; (viii) the procedures that the Holder must follow to exercise rights under this Section 3.3; (ix) the procedures that the Holder must follow to withdraw a Change of Control Repurchase Notice; (x) that, unless the Corporation fails to pay such Change of Control Repurchase Price, Debentures covered by any Change of Control Repurchase Notice will cease to be outstanding and interest will cease to accrue on and after the Change of Control Repurchase Date; (xi) that the in the event that such Holder does not accept or exercise the Change of Control Offer in accordance with the terms of this Indenture, the Corporation will have the right, but not the obligation, to carry out the repurchase or conversion pursuant to the Change of Control Offer, in its sole discretion, on the Change of Control Repurchase Date, and that Debentures so purchase or converted by the Corporation will cease to be outstanding and interest will cease to accrue on and after the Change of Control Purchase Date; and (xii) the CUSIP number of the Debentures. At the Corporation’s request, the Trustee shall give such Change of Control Notice in the Corporation’s name, at the Corporation’s expense, and within the notice period set out above; provided, that, in all cases, the text of such Change of Control Notice shall be prepared by the Corporation. (3) A Holder may exercise its rights specified in this Section 3.3 upon delivery of a written notice and which may be delivered by letter, overnight courier, hand delivery, electronic transmission or in any other written form and, in the case of Uncertificated Debentures, may be delivered electronically or by other means in accordance with the Depository’s applicable procedures) of the exercise of such rights (a "Change of Control Repurchase Notice") to the Corporation or the Trustee at any time prior to the close of business on the fifth Business Day prior to the Change of Control Repurchase Date, subject to extension to comply with Applicable Laws. (4) The Change of Control Repurchase Notice shall state: (i) the certificate number of the Debenture which the Holder will deliver to be purchased or exchanged (or, if the Debenture is in Uncertificated Debenture form, any other items required to comply with the applicable procedures), (ii) the portion of the principal amount of the Debenture which the Holder will deliver to be purchased or converted, in integral multiples of $1,000, and (iii) that such Debenture shall be purchased or converted as of the Change of Control Repurchase Date pursuant to the terms and conditions specified in the Debentures and in this Indenture. (5) The delivery of a Debenture for which a Change of Control Repurchase Notice has been timely delivered to the Trustee and not validly withdrawn prior to, on or after the Change of Control Repurchase Date (together with all necessary endorsements) at the office of the Trustee shall be a condition to the receipt by the Holder of the Change of Control Repurchase Price or Common Shares therefor. (6) The Corporation shall only be obliged to purchase or exchange, pursuant to this Section 3.3, a portion of a Debenture if the principal amount of such portion is $1,000 or an integral multiple of $1,000 (provisions of this Indenture that apply to the purchase of all of a Debenture also apply to the purchase of such portion of such Debenture). (7) Notwithstanding anything herein to the contrary, any Holder delivering to the Trustee the Change of Control Repurchase Notice contemplated by this Section 3.3 shall have the right to withdraw such Change of Control Repurchase Notice in whole or in a portion thereof that is a principal amount of $1,000 or in an integral multiple thereof, at any time prior to the close of business on the fifth Business Day prior to the Change of Control Repurchase Date by delivery of a written notice of withdrawal to the Trustee in accordance with the procedures set out in the Change of Control Notice or, if not set out therein, then in accordance with this Section 3.3(7). (8) The Trustee shall promptly notify the Corporation of the receipt by it of any Change of Control Repurchase Notice or written withdrawal thereof. (9) Anything herein to the contrary notwithstanding, in the case of Uncertificated Debentures, any Change of Control Repurchase Notice may be delivered or withdrawn and such securities may be surrendered or delivered for purchase in accordance with the applicable procedures of the Depository as in effect from time to time. (10) Upon receipt by the Trustee of a properly completed Change of Control Repurchase Notice from a Holder, the Holder of the Debenture in respect of which such Change of Control Repurchase Notice was given shall (unless such Change of Control Repurchase Notice is withdrawn as specified in Section 3.3(11)), thereafter be entitled to receive the Change of Control Repurchase Price or Common Shares thereof, as the case may be, with respect to such Debenture, subject to there being no Event of Default then occurring including a continuation thereof (other than a default in the payment of the Change of Control Repurchase Price). The Change of Control Repurchase Price shall be paid or the Common Shares issued to such Holder promptly following the later of (i) the Change of Control Repurchase Date and (ii) the time of delivery of such Debenture to the Trustee by the Holder thereof in the manner required by this Section 3.3. (11) A Change of Control Repurchase Notice may be withdrawn by means of a written notice (which may be delivered by mail, overnight courier, hand delivery, electronic transmission or in any other written form and, in the case of Uncertificated Debentures, may be delivered electronically or by other means in accordance with the applicable procedures of the Depository) of withdrawal delivered by the Holder to the Trustee at any time prior to the close of business on the fifth Business Day immediately prior to the Change of Control Repurchase Date, specifying (1) the principal amount of the Debenture or portion thereof (which must be a principal amount of $1,000 or an integral multiple of $1,000 in excess thereof), with respect to which such notice of withdrawal is being submitted, (2) if Certificated Debentures have been issued, the certificate number of the Debentures being withdrawn in whole or in withdrawable part (or if the Debentures are not Uncertificated Debentures, such written notice must comply with the applicable procedures of the Depository) and (3) the portion of the principal amount of the Debentures that will remain subject to the Change of Control Repurchase Notice, which portion must be a principal amount of $1,000 or an integral multiple thereof. (12) On or before 12:00 p.m. (Calgary time) on the Business Day prior to the applicable Change of Control Repurchase Date, the Corporation shall deposit with the Trustee an amount of money (in immediately available funds if deposited on or after such Change of Control Repurchase Date), sufficient to pay the aggregate Change of Control Repurchase Price of all the Debentures or portions thereof that are to be purchased as of such Change of Control Repurchase Date, and/or shall deposit with the Trustee or cause to be issued such number of Common Shares as is equal to the number of Common Shares to be issued to Holders on the Change of Control Repurchase Date pursuant to the conversion of the Debentures. (13) If a Trustee holds, in accordance with the terms hereof, money sufficient to pay the Change of Control Repurchase Price, and/or such number of Common Shares as is necessary to satisfy the conversion, of any Debenture for which a Change of Control Repurchase Notice has been tendered and not withdrawn in accordance with this Indenture then, on the Business Day following the applicable Change of Control Repurchase Date, such Debenture will cease to be outstanding, whether or not the Debenture is delivered to the Trustee, and interest shall cease to accrue, and the rights of the Holder in respect of the Debenture shall terminate (other than the right to receive the Change of Control Repurchase Price and/or Common Shares as aforesaid). The Corporation shall publicly announce the principal amount of Debentures purchased and/or converted on or as soon as practicable after the Change of Control Repurchase Date. (14) The Trustee will promptly return to the respective Holders thereof any Debentures with respect to which a Change of Control Repurchase Notice has been withdrawn in compliance with this Indenture and which has not been repurchased or converted by the Corporation in accordance with the terms of this Indenture. (15) If a Change of Control Repurchase Date falls after an Payment Record Date and on or before the related Interest Payment Date, then interest on the Debentures payable on such Interest Payment Date will be payable to the Holders in whose names the Debentures are registered at the close of business on such Payment Record Date.Repurchase‌

Appears in 1 contract

Samples: Indenture

Repurchase of Debentures at Option of the Holder upon a Change of Control. (1a) If Upon the occurrence of a Change of Control occurs prior to the Maturity Date, each Holder of Debentures has the right to require the Corporation shall make an offer to each Holder to: (ai) purchase repurchase for cash all or a such portion of the Debentures of such Holder for a cash payment Holders equal to $1,000 principal amount (or an integral multiple thereof) which are Outstanding immediately prior to such Change of Control, at a price equal to 105% of the principal amount of the Debentures then Outstanding plus any accrued and unpaid interest thereon (the "Change of Control Repurchase Price") on the Change of Control Repurchase Price (with respect to the Debentures so converted) Date (the "Repayment Offer"); or (bii) convert if as a result of the Change of Control there is or will be a Successor Entity, subject to Applicable Law, exchange all or a such portion of the Debentures of such Holder into such number of Common Shares Holders equal to the $1,000 principal amount (or an integral multiple thereof) which are Outstanding immediately prior to such Change of Control Repurchase Price into debentures of the Successor Entity (the "Exchanged Debentures"), with respect each $1,000 principal amount (or an integral multiple thereof) being exchanged for unsecured convertible debentures of the Successor Entity with a principal amount of $1,000 with interest, payment and maturity provisions that are economically equivalent to the Debentures so converted) divided by the Conversion Price (the "Conversion Exchange Offer", " and together with the Repayment Offer, the "Change of Control Offer"), in each caseprovided that if 90% or more of the principal amount of all of the Debentures then Outstanding on the date of the Change of Control Notice are tendered for redemption pursuant to the Repayment Offer, the Exchange Offer shall be deemed to occur on be withdrawn and the Corporation shall have the right, at its option, at any time within 30 days of the Change of Control Repurchase Date, provided that in the event that a Debentureholder does not accept or exercise the Change Date of Control Offer in accordance with the terms of this Indenture, the Corporation will have the right, but not the obligation, in its sole discretion, to carry out either the purchase or conversion pursuant to the such Change of Control Offer, in its sole discretionto elect to redeem all, on but not less than all, of the remaining Debentures that are then Outstanding, at the Change of Control Repurchase DatePrice of such Repayment Offer. (2b) As promptly as practicable following the date on which the Corporation announces the Change of Control, but in no event less than 30 days prior to the anticipated date of completion of a Change of Control, the Corporation shall mail a written notice of the Change of Control to the Trustee and to each Holder (and to beneficial Holders as required by Applicable Securities Laws) (the "Change of Control Notice"). The Change of Control Notice shall include the form of a Change of Control Repurchase Notice (as defined below) to be completed by the Holder and shall state the Change of Control Offer and the following: (i) the events causing such Change of Control; (ii) the date (or expected date) of such Change of Control; (iii) the last date by which the Change of Control Repurchase Notice must be delivered to elect an option pursuant to this Section 3.33.1; (iv) the Change of Control Repurchase Date; (v) the Change of Control Repurchase Price; (vi) the Holder’s 's right to require the Corporation to purchase all or a portion of the Debentures, Debentures or to convert all or a portion of the Debentures, exchange such Debentures for Exchanged Debentures pursuant to the Change of Control Offer; (vii) the name and address of the Trustee; (viii) the procedures that the Holder must follow to exercise rights under this Section 3.3; (ix) the procedures that the Holder must follow to withdraw a Change of Control Repurchase Notice; (x) that, unless the Corporation fails to pay such Change of Control Repurchase Price, Debentures covered by any Change of Control Repurchase Notice will cease to be outstanding and interest will cease to accrue on and after the Change of Control Repurchase Date; (xi) that the in the event that such Holder does not accept or exercise the Change of Control Offer in accordance with the terms of this Indenture, the Corporation will have the right, but not the obligation, to carry out the repurchase or conversion pursuant to the Change of Control Offer, in its sole discretion, on the Change of Control Repurchase Date, and that Debentures so purchase or converted by the Corporation will cease to be outstanding and interest will cease to accrue on and after the Change of Control Purchase Date; and (xii) the CUSIP number of the Debentures3.1. At the Corporation’s 's request, the Trustee shall give such Change of Control Notice in the Corporation’s 's name, at the Corporation’s 's expense, and within the notice period set out above; provided, that, in all cases, the text of such Change of Control Notice shall be prepared by the Corporation. (3c) A Holder may exercise its rights specified in this Section 3.3 3.1 upon delivery of a written notice and which may be delivered by letter, overnight courier, hand delivery, electronic facsimile transmission or in any other written form and, in the case of Uncertificated DebenturesDebenture, may be delivered electronically or by other means in accordance with the Depository’s 's applicable procedures) of the exercise of such rights (a "Change of Control Repurchase Notice") to the Corporation or the Trustee at any time prior to the close of business on the fifth Business Day prior to next preceding the Change of Control Repurchase Date, subject to extension to comply with Applicable Laws. (4d) The Change of Control Repurchase Notice shall state: (i) the certificate number of the Debenture which the Holder will deliver to be purchased or exchanged (or, if the Debenture is in Uncertificated Debenture form, any other items required to comply with the applicable procedures), (ii) the portion of the principal amount of the Debenture which the Holder will deliver to be purchased or convertedexchanged, in integral multiples of $1,000, and (iii) that such Debenture shall be purchased or converted exchanged as of the Change of Control Repurchase Date pursuant to the terms and conditions specified in the Debentures and in this Indenture. (5e) The delivery of a Debenture for which a Change of Control Repurchase Notice has been timely delivered to the Trustee and not validly withdrawn prior to, on or after the Change of Control Repurchase Date (together with all necessary endorsements) at the office of the Trustee shall be a condition to the receipt by the Holder of the Change of Control Repurchase Price or Common Shares Exchanged Debentures therefor. (6f) The Corporation shall only be obliged to purchase or exchange, pursuant to this Section 3.33.1, a portion of a Debenture if the principal amount of such portion is $1,000 or an integral multiple of $1,000 (provisions of this Indenture that apply to the purchase of all of a Debenture also apply to the purchase of such portion of such Debenture). (7g) Notwithstanding anything herein to the contrary, any Holder delivering to the Trustee the Change of Control Repurchase Notice contemplated by this Section 3.3 3.1 shall have the right to withdraw such Change of Control Repurchase Notice in whole or in a portion thereof that is a principal amount of $1,000 or in an integral multiple thereof, at any time prior to the close of business on the fifth Business Day prior to the Change of Control Repurchase Date by delivery of a written notice of withdrawal to the Trustee in accordance with the procedures set out in the Change of Control Notice or, if not set out therein, then in accordance with this Section 3.3(73.1(g). (8) h) The Trustee shall promptly notify the Corporation of the receipt by it of any Change of Control Repurchase Notice or written withdrawal thereof. (9i) Anything herein to the contrary notwithstanding, in the case of Uncertificated Debentures, any Change of Control Repurchase Notice may be delivered or withdrawn and such securities may be surrendered or delivered for purchase in accordance with the applicable procedures of the Depository as in effect from time to time. (10j) Upon receipt by the Trustee of a properly completed Change of Control Repurchase Notice from a Holder, the Holder of the Debenture in respect of which such Change of Control Repurchase Notice was given shall (unless such Change of Control Repurchase Notice is withdrawn as specified in Section 3.3(113.1(k)), thereafter be entitled to receive the Change of Control Repurchase Price or Common Shares thereofExchanged Debentures, as the case may be, with respect to such Debenture, subject to there being no Event of Default then occurring including a continuation thereof (other than a default in the payment of the Change of Control Repurchase Price). The Change of Control Repurchase Price shall be paid or the Common Shares Exchanged Debentures issued to such Holder promptly following the later of of: (i) the Change of Control Repurchase Date and (ii) the time of delivery of such Debenture to the Trustee by the Holder thereof in the manner required by this Section 3.33.1. (11k) A Change of Control Repurchase Notice may be withdrawn by means of a written notice (which may be delivered by mail, overnight courier, hand delivery, electronic facsimile transmission or in any other written form and, in the case of Uncertificated Debentures, may be delivered electronically or by other means in accordance with the applicable procedures of the Depository) of withdrawal delivered by the Holder to the Trustee at any time prior to the close of business on the fifth Business Day immediately prior to the Change of Control Repurchase Date, specifying specifying: (1i) the principal amount of the Debenture or portion thereof (which must be a principal amount of $1,000 or an integral multiple of $1,000 in excess thereof), with respect to which such notice of withdrawal is being submitted, (2ii) if Certificated Debentures have been issued, the certificate number of the Debentures being withdrawn in whole or in withdrawable part (or if the Debentures are not Uncertificated Debentures, such written notice must comply with the applicable procedures of the Depository) and (3iii) the portion of the principal amount of the Debentures that will remain subject to the Change of Control Repurchase Notice, which portion must be a principal amount of $1,000 or an integral multiple thereof. (12l) On or before 12:00 p.m. (Calgary Vancouver time) on the Business Day prior to following the applicable Change of Control Repurchase Date, the Corporation shall deposit with the Trustee an amount of money (in immediately available funds if deposited on or after such Change of Control Repurchase Date), sufficient to pay the aggregate Change of Control Repurchase Price of all the Debentures or portions thereof that are to be purchased as of such Change of Control Repurchase Date, and/or shall deposit with the Trustee or cause to be issued such number of Common Shares as is equal to the number of Common Shares to be issued to Holders on the Change of Control Repurchase Date pursuant to the conversion of the Debentures. (13m) If a the Trustee holds, in accordance with the terms hereof, money sufficient to pay the Change of Control Repurchase Price, and/or such number of Common Shares as is necessary to satisfy the conversion, Price of any Debenture for which a Change of Control Repurchase Notice has been tendered and not withdrawn in accordance with this Indenture then, on the Business Day following the applicable Change of Control Repurchase Date, such Debenture will cease to be outstanding, whether or not the Debenture is delivered to the Trustee, and interest shall cease to accrue, and the rights of the Holder in respect of the Debenture shall terminate (other than the right to receive the Change of Control Repurchase Price and/or Common Shares as aforesaid). The Corporation shall publicly announce the principal amount of Debentures purchased and/or converted repurchased on or as soon as practicable after the Change of Control Repurchase Date. (14n) The Trustee will promptly return to the respective Holders thereof any Debentures with respect to which a Change of Control Repurchase Notice has been withdrawn in compliance with this Indenture and which has not been repurchased or converted by the Corporation in accordance with the terms of this Indenture. (15o) If a Change of Control Repurchase Date falls after an a Payment Record Date and on or before the related Interest Payment Date, then interest on the Debentures payable on such Interest Payment Date will be payable to the Holders in whose names the Debentures are registered at the close of business on such Payment Record Date. (p) Notwithstanding anything in this Section 3.1 to the contrary, the Corporation shall be entitled to withdraw the Change of Control Notice and, upon written order of the Corporation, the notice of Change of Control provided by the Trustee in accordance with Section 3.1(a) in the event that the anticipated Change of Control is terminated or does not occur. In such event, no Debentures shall be purchased hereunder and the Corporation shall be entitled to the return of any funds deposited as contemplated in Section 3.1(l) and any Debentures delivered by the Holders thereof to the Trustee shall be returned to such Holders.

Appears in 1 contract

Samples: Indenture (C21 Investments Inc.)

Repurchase of Debentures at Option of the Holder upon a Change of Control. (1a) If Upon the occurrence of a Change of Control occurs prior to the Maturity Date, each Holder of Debentures has the right to require the Corporation shall make an offer to each Holder to: (ai) purchase repurchase for cash all or a such portion of the Debentures of such Holder for a cash payment Holders equal to $1,000 principal amount (or an integral multiple thereof) which are Outstanding immediately prior to such Change of Control, at a price equal to 105% of the principal amount of the Debentures then Outstanding plus any accrued and unpaid interest thereon (the “Change of Control Repurchase Price”) on the Change of Control Repurchase Price (with respect to the Debentures so converted) Date (the "Repayment Offer"); or (bii) convert if as a result of the Change of Control there is or will be a Successor Entity, subject to Applicable Law, exchange all or a such portion of the Debentures of such Holder into such number of Common Shares Holders equal to the $1,000 principal amount (or an integral multiple thereof) which are Outstanding immediately prior to such Change of Control Repurchase Price into debentures of the Successor Entity (the “Exchanged Debentures”), with respect each $1,000 principal amount (or an integral multiple thereof) being exchanged for unsecured convertible debentures of the Successor Entity with a principal amount of $1,000 with interest, payment and maturity provisions that are economically equivalent to the Debentures so converted) divided by the Conversion Price (the "Conversion “Exchange Offer", ” and together with the Repayment Offer, the "Change of Control Offer"), in each caseprovided that if 90% or more of the principal amount of all of the Debentures then Outstanding on the date of the Change of Control Notice are tendered for redemption pursuant to the Repayment Offer, the Exchange Offer shall be deemed to occur on be withdrawn and the Corporation shall have the right, at its option, at any time within 30 days of the Change of Control Repurchase Date, provided that in the event that a Debentureholder does not accept or exercise the Change Date of Control Offer in accordance with the terms of this Indenture, the Corporation will have the right, but not the obligation, in its sole discretion, to carry out either the purchase or conversion pursuant to the such Change of Control Offer, in its sole discretionto elect to redeem all, on but not less than all, of the remaining Debentures that are then Outstanding, at the Change of Control Repurchase DatePrice of such Repayment Offer. (2b) As promptly as practicable following the date on which the Corporation announces the Change of Control, but in no event less than 30 days prior to the anticipated date of completion of a Change of Control, the Corporation shall mail a written notice of the Change of Control to the Trustee and to each Holder (and to beneficial Holders as required by Applicable Securities Laws) (the "Change of Control Notice"). The Change of Control Notice shall include the form of a Change of Control Repurchase Notice (as defined below) to be completed by the Holder and shall state the Change of Control Offer and the following: (i) the events causing such Change of Control; (ii) the date (or expected date) of such Change of Control; (iii) the last date by which the Change of Control Repurchase Notice must be delivered to elect an option pursuant to this Section 3.33.1; (iv) the Change of Control Repurchase Date; (v) the Change of Control Repurchase Price; (vi) the Holder’s right to require the Corporation to purchase all or a portion of the Debentures, Debentures or to convert all or a portion of the Debentures, exchange such Debentures for Exchanged Debentures pursuant to the Change of Control Offer; (vii) the name and address of the Trustee; (viii) the procedures that the Holder must follow to exercise rights under this Section 3.3; (ix) the procedures that the Holder must follow to withdraw a Change of Control Repurchase Notice; (x) that, unless the Corporation fails to pay such Change of Control Repurchase Price, Debentures covered by any Change of Control Repurchase Notice will cease to be outstanding and interest will cease to accrue on and after the Change of Control Repurchase Date; (xi) that the in the event that such Holder does not accept or exercise the Change of Control Offer in accordance with the terms of this Indenture, the Corporation will have the right, but not the obligation, to carry out the repurchase or conversion pursuant to the Change of Control Offer, in its sole discretion, on the Change of Control Repurchase Date, and that Debentures so purchase or converted by the Corporation will cease to be outstanding and interest will cease to accrue on and after the Change of Control Purchase Date; and (xii) the CUSIP number of the Debentures3.1. At the Corporation’s request, the Trustee shall give such Change of Control Notice in the Corporation’s name, at the Corporation’s expense, and within the notice period set out above; provided, that, in all cases, the text of such Change of Control Notice shall be prepared by the Corporation. (3c) A Holder may exercise its rights specified in this Section 3.3 3.1 upon delivery of a written notice and which may be delivered by letter, overnight courier, hand delivery, electronic facsimile transmission or in any other written form and, in the case of Uncertificated DebenturesDebenture, may be delivered electronically or by other means in accordance with the Depository’s applicable procedures) of the exercise of such rights (a "Change of Control Repurchase Notice") to the Corporation or the Trustee at any time prior to the close of business on the fifth Business Day prior to next preceding the Change of Control Repurchase Date, subject to extension to comply with Applicable Laws. (4d) The Change of Control Repurchase Notice shall state: (i) the certificate number of the Debenture which the Holder will deliver to be purchased or exchanged (or, if the Debenture is in Uncertificated Debenture form, any other items required to comply with the applicable procedures), (ii) the portion of the principal amount of the Debenture which the Holder will deliver to be purchased or convertedexchanged, in integral multiples of $1,000, and (iii) that such Debenture shall be purchased or converted exchanged as of the Change of Control Repurchase Date pursuant to the terms and conditions specified in the Debentures and in this Indenture. (5e) The delivery of a Debenture for which a Change of Control Repurchase Notice has been timely delivered to the Trustee and not validly withdrawn prior to, on or after the Change of Control Repurchase Date (together with all necessary endorsements) at the office of the Trustee shall be a condition to the receipt by the Holder of the Change of Control Repurchase Price or Common Shares Exchanged Debentures therefor. (6f) The Corporation shall only be obliged to purchase or exchange, pursuant to this Section 3.33.1, a portion of a Debenture if the principal amount of such portion is $1,000 or an integral multiple of $1,000 (provisions of this Indenture that apply to the purchase of all of a Debenture also apply to the purchase of such portion of such Debenture). (7g) Notwithstanding anything herein to the contrary, any Holder delivering to the Trustee the Change of Control Repurchase Notice contemplated by this Section 3.3 3.1 shall have the right to withdraw such Change of Control Repurchase Notice in whole or in a portion thereof that is a principal amount of $1,000 or in an integral multiple thereof, at any time prior to the close of business on the fifth Business Day prior to the Change of Control Repurchase Date by delivery of a written notice of withdrawal to the Trustee in accordance with the procedures set out in the Change of Control Notice or, if not set out therein, then in accordance with this Section 3.3(73.1(g). (8) h) The Trustee shall promptly notify the Corporation of the receipt by it of any Change of Control Repurchase Notice or written withdrawal thereof. (9i) Anything herein to the contrary notwithstanding, in the case of Uncertificated Debentures, any Change of Control Repurchase Notice may be delivered or withdrawn and such securities may be surrendered or delivered for purchase in accordance with the applicable procedures of the Depository as in effect from time to time. (10j) Upon receipt by the Trustee of a properly completed Change of Control Repurchase Notice from a Holder, the Holder of the Debenture in respect of which such Change of Control Repurchase Notice was given shall (unless such Change of Control Repurchase Notice is withdrawn as specified in Section 3.3(113.1(k)), thereafter be entitled to receive the Change of Control Repurchase Price or Common Shares thereofExchanged Debentures, as the case may be, with respect to such Debenture, subject to there being no Event of Default then occurring including a continuation thereof (other than a default in the payment of the Change of Control Repurchase Price). The Change of Control Repurchase Price shall be paid or the Common Shares Exchanged Debentures issued to such Holder promptly following the later of of: (i) the Change of Control Repurchase Date and (ii) the time of delivery of such Debenture to the Trustee by the Holder thereof in the manner required by this Section 3.33.1. (11k) A Change of Control Repurchase Notice may be withdrawn by means of a written notice (which may be delivered by mail, overnight courier, hand delivery, electronic facsimile transmission or in any other written form and, in the case of Uncertificated Debentures, may be delivered electronically or by other means in accordance with the applicable procedures of the Depository) of withdrawal delivered by the Holder to the Trustee at any time prior to the close of business on the fifth Business Day immediately prior to the Change of Control Repurchase Date, specifying specifying: (1i) the principal amount of the Debenture or portion thereof (which must be a principal amount of $1,000 or an integral multiple of $1,000 in excess thereof), with respect to which such notice of withdrawal is being submitted, (2ii) if Certificated Debentures have been issued, the certificate number of the Debentures being withdrawn in whole or in withdrawable part (or if the Debentures are not Uncertificated Debentures, such written notice must comply with the applicable procedures of the Depository) and (3iii) the portion of the principal amount of the Debentures that will remain subject to the Change of Control Repurchase Notice, which portion must be a principal amount of $1,000 or an integral multiple thereof. (12l) On or before 12:00 p.m. (Calgary Vancouver time) on the Business Day prior to following the applicable Change of Control Repurchase Date, the Corporation shall deposit with the Trustee an amount of money (in immediately available funds if deposited on or after such Change of Control Repurchase Date), sufficient to pay the aggregate Change of Control Repurchase Price of all the Debentures or portions thereof that are to be purchased as of such Change of Control Repurchase Date, and/or shall deposit with the Trustee or cause to be issued such number of Common Shares as is equal to the number of Common Shares to be issued to Holders on the Change of Control Repurchase Date pursuant to the conversion of the Debentures. (13m) If a the Trustee holds, in accordance with the terms hereof, money sufficient to pay the Change of Control Repurchase Price, and/or such number of Common Shares as is necessary to satisfy the conversion, Price of any Debenture for which a Change of Control Repurchase Notice has been tendered and not withdrawn in accordance with this Indenture then, on the Business Day following the applicable Change of Control Repurchase Date, such Debenture will cease to be outstanding, whether or not the Debenture is delivered to the Trustee, and interest shall cease to accrue, and the rights of the Holder in respect of the Debenture shall terminate (other than the right to receive the Change of Control Repurchase Price and/or Common Shares as aforesaid). The Corporation shall publicly announce the principal amount of Debentures purchased and/or converted repurchased on or as soon as practicable after the Change of Control Repurchase Date. (14n) The Trustee will promptly return to the respective Holders thereof any Debentures with respect to which a Change of Control Repurchase Notice has been withdrawn in compliance with this Indenture and which has not been repurchased or converted by the Corporation in accordance with the terms of this Indenture. (15o) If a Change of Control Repurchase Date falls after an a Payment Record Date and on or before the related Interest Payment Date, then interest on the Debentures payable on such Interest Payment Date will be payable to the Holders in whose names the Debentures are registered at the close of business on such Payment Record Date. (p) Notwithstanding anything in this Section 3.1 to the contrary, the Corporation shall be entitled to withdraw the Change of Control Notice and, upon written order of the Corporation, the notice of Change of Control provided by the Trustee in accordance with Section 3.1(a) in the event that the anticipated Change of Control is terminated or does not occur. In such event, no Debentures shall be purchased hereunder and the Corporation shall be entitled to the return of any funds deposited as contemplated in Section 3.1(l) and any Debentures delivered by the Holders thereof to the Trustee shall be returned to such Holders.

Appears in 1 contract

Samples: Indenture (C21 Investments Inc.)

Repurchase of Debentures at Option of the Holder upon a Change of Control. (1a) If a Change of Control occurs prior to the Maturity Date, the Corporation Issuer shall make an offer to each Holder to: (a) purchase the Holders to repurchase for cash all or a any portion of the Debentures of such Holder for a cash payment equal to Holder, at the Change of Control Repurchase Price (with respect to the Debentures so converted) (the "Repayment Offer"); or (b) convert all or a portion of the Debentures of such Holder into such number of Common Shares equal to the Change of Control Repurchase Price (with respect to the Debentures so converted) divided by the Conversion Price (the "Conversion Offer", together with the Repayment Offer, the "Change of Control Offer"), in each case, to occur ”) on the Change of Control Repurchase Date, Date (provided that in the event that case of a Debentureholder does not accept or exercise the Change of Control Offer caused by Fairfax or any Affiliate thereof, whether by itself or together with any other Person with whom Fairfax or any such Affiliate is acting jointly or in accordance with the terms of this Indentureconcert, the Corporation will have the right, but Issuer shall not the obligation, in its sole discretion, be required to carry out either the purchase or conversion pursuant to the make a Change of Control Offer, in its sole discretion, on the Change of Control Repurchase Date. (2) Repayment Offer with respect to any Debentures beneficially held by Fairfax or any Affiliate thereof or any other such Person). As promptly as practicable following the date on which the Corporation announces the Change of Control, but in no any event less than 30 within ten (10) days prior to after the anticipated date occurrence of completion of a such Change of Control, the Corporation Issuer shall mail a written provide notice of the Change of Control to the Trustee and to each Holder (the Holders in the manner provided in sections 16.2 and to beneficial Holders as required by Applicable Securities Laws) 16.3 (the "Change of Control Issuer Notice"). The Change of Control Issuer Notice shall include the form of a Change of Control Repurchase Notice (as defined below) to be completed by the Holder and shall state the Change of Control Repayment Offer and the following: : (i) the events causing such Change of Control; ; (ii) the date of such Change of Control; ; (iii) the last date by which the Change of Control Repurchase Notice must be delivered to elect an the repurchase option pursuant to this Section 3.3; section 3.2; (iv) the Change of Control Repurchase Date; ; (v) the Change of Control Repurchase Price; ; (vi) the Holder’s right to require the Corporation Issuer to purchase all or a portion of the Debentures, or to convert all or a portion of the Debentures, pursuant to Debentures held by such Holder by accepting the Change of Control Repayment Offer; ; (vii) the name and address of the Trustee; ; (viii) the then effective Conversion Price and Conversion Rate and any adjustments to the Conversion Rate resulting from such Change of Control and details of all such calculations; (ix) the procedures that the Holder must follow to exercise conversion rights under Article 5 and that Debentures as to which a Change of Control Repurchase Notice has been given may be converted into Common Shares pursuant to Article 5 of this Indenture only to the extent that the Change of Control Repurchase Notice has been withdrawn in accordance with the terms of this Indenture; (x) the procedures that the Holder must follow to exercise rights under this Section 3.3; section 3.2; (ixxi) the procedures that the Holder must follow to withdraw a Change of Control Repurchase Notice; ; (xxii) that, unless the Corporation Issuer fails to pay such Change of Control Repurchase Price, Debentures covered by any Change of Control Repurchase Notice will cease to be outstanding and interest will cease to accrue on and after the Change of Control Repurchase Date; and (xi) that the in the event that such Holder does not accept or exercise the Change of Control Offer in accordance with the terms of this Indenture, the Corporation will have the right, but not the obligation, to carry out the repurchase or conversion pursuant to the Change of Control Offer, in its sole discretion, on the Change of Control Repurchase Date, and that Debentures so purchase or converted by the Corporation will cease to be outstanding and interest will cease to accrue on and after the Change of Control Purchase Date; and (xiixiii) the CUSIP number of the Debentures. At the CorporationIssuer’s request, the Trustee shall give such Change of Control Issuer Notice in the CorporationIssuer’s name, at the CorporationIssuer’s expense, and within the notice period set out above; provided, that, in all cases, the text of such Change of Control Issuer Notice shall be prepared by the CorporationIssuer. If any of the Debentures is in the form of a Book-Entry Only Debenture, then the Issuer shall modify such notice to the extent necessary to accord with the applicable procedures at the Book-Based System relating to the purchase of Book-Entry Only Debentures. (3b) A Holder may exercise its rights specified in this Section 3.3 upon delivery accept a Change of Control Repayment Offer by delivering a written notice and (which may be delivered by letter, overnight courier, hand delivery, electronic facsimile transmission or in any other written form and, in the case of Uncertificated DebenturesBook-Entry Only Debenture, may be delivered electronically or by other means in accordance with the Depository’s applicable procedures) of the exercise of such rights acceptance (a "Change of Control Repurchase Notice") to the Corporation Issuer or the Trustee at any time prior to the close of business on the fifth second Business Day prior to next preceding the Change of Control Repurchase Date, subject to extension to comply with Applicable Laws. (4i) The Change of Control Repurchase Notice shall state: (iA) the certificate number (if such Debenture is held other than in global form) of the Debenture which the Holder will deliver to be purchased or exchanged (or, if the Debenture is in Uncertificated a Book-Entry Only Debenture form, any other items required to comply with the applicable procedures), (iiB) the portion of the principal amount of the Debenture which the Holder will deliver to be purchased or convertedpurchased, in integral multiples of $1,000, and (iiiC) that such Debenture shall be purchased or converted as of the Change of Control Repurchase Date pursuant to the terms and conditions specified in the Debentures and in this Indenture. (5ii) The delivery of a Debenture (if such Debenture is held other than in global form) for which a Change of Control Repurchase Notice has been timely delivered to the Trustee and not validly withdrawn prior to, on or after the Change of Control Repurchase Date (together with all necessary endorsements) at the office of the Trustee shall be a condition to the receipt by the Holder of the Change of Control Repurchase Price or Common Shares therefor. (6iii) The Corporation Issuer shall only be obliged to purchase or exchangepurchase, pursuant to this Section 3.3section 3.2, a portion of a Debenture if the principal amount of such portion is $1,000 or an integral multiple of $1,000 (provisions of this Indenture that apply to the purchase of all of a Debenture also apply to the purchase of such portion of such Debenture). (7c) Notwithstanding anything herein to the contrary, any Holder delivering to the Trustee the Change of Control Repurchase Notice contemplated by this Section 3.3 section 3.2 shall have the right to withdraw such Change of Control Repurchase Notice in whole or in a portion thereof that is a principal amount of $1,000 or in an integral multiple thereof, at any time prior to the close of business on the fifth third Business Day prior to the Change of Control Repurchase Date by delivery of a written notice of withdrawal to the Trustee in accordance with the procedures set out in the Change of Control Issuer Notice or, if not set out therein, then in accordance with this Section 3.3(7)section 3.3. (8) d) The Trustee shall promptly notify the Corporation Issuer of the receipt by it of any Change of Control Repurchase Notice or written withdrawal thereof. (9e) Anything herein to the contrary notwithstanding, in the case of Uncertificated Book-Entry Only Debentures, any Change of Control Repurchase Notice may be delivered or withdrawn and such securities may be surrendered or delivered for purchase in accordance with the applicable procedures of the Depository Book-Based System as in effect from time to time. (10) Upon receipt by the Trustee of a properly completed Change of Control Repurchase Notice from a Holder, the Holder of the Debenture in respect of which such Change of Control Repurchase Notice was given shall (unless such Change of Control Repurchase Notice is withdrawn as specified in Section 3.3(11)), thereafter be entitled to receive the Change of Control Repurchase Price or Common Shares thereof, as the case may be, with respect to such Debenture, subject to there being no Event of Default then occurring including a continuation thereof (other than a default in the payment of the Change of Control Repurchase Price). The Change of Control Repurchase Price shall be paid or the Common Shares issued to such Holder promptly following the later of (i) the Change of Control Repurchase Date and (ii) the time of delivery of such Debenture to the Trustee by the Holder thereof in the manner required by this Section 3.3. (11) A Change of Control Repurchase Notice may be withdrawn by means of a written notice (which may be delivered by mail, overnight courier, hand delivery, electronic transmission or in any other written form and, in the case of Uncertificated Debentures, may be delivered electronically or by other means in accordance with the applicable procedures of the Depository) of withdrawal delivered by the Holder to the Trustee at any time prior to the close of business on the fifth Business Day immediately prior to the Change of Control Repurchase Date, specifying (1) the principal amount of the Debenture or portion thereof (which must be a principal amount of $1,000 or an integral multiple of $1,000 in excess thereof), with respect to which such notice of withdrawal is being submitted, (2) if Certificated Debentures have been issued, the certificate number of the Debentures being withdrawn in whole or in withdrawable part (or if the Debentures are not Uncertificated Debentures, such written notice must comply with the applicable procedures of the Depository) and (3) the portion of the principal amount of the Debentures that will remain subject to the Change of Control Repurchase Notice, which portion must be a principal amount of $1,000 or an integral multiple thereof. (12) On or before 12:00 p.m. (Calgary time) on the Business Day prior to the applicable Change of Control Repurchase Date, the Corporation shall deposit with the Trustee an amount of money (in immediately available funds if deposited on or after such Change of Control Repurchase Date), sufficient to pay the aggregate Change of Control Repurchase Price of all the Debentures or portions thereof that are to be purchased as of such Change of Control Repurchase Date, and/or shall deposit with the Trustee or cause to be issued such number of Common Shares as is equal to the number of Common Shares to be issued to Holders on the Change of Control Repurchase Date pursuant to the conversion of the Debentures. (13) If a Trustee holds, in accordance with the terms hereof, money sufficient to pay the Change of Control Repurchase Price, and/or such number of Common Shares as is necessary to satisfy the conversion, of any Debenture for which a Change of Control Repurchase Notice has been tendered and not withdrawn in accordance with this Indenture then, on the Business Day following the applicable Change of Control Repurchase Date, such Debenture will cease to be outstanding, whether or not the Debenture is delivered to the Trustee, and interest shall cease to accrue, and the rights of the Holder in respect of the Debenture shall terminate (other than the right to receive the Change of Control Repurchase Price and/or Common Shares as aforesaid). The Corporation shall publicly announce the principal amount of Debentures purchased and/or converted on or as soon as practicable after the Change of Control Repurchase Date. (14) The Trustee will promptly return to the respective Holders thereof any Debentures with respect to which a Change of Control Repurchase Notice has been withdrawn in compliance with this Indenture and which has not been repurchased or converted by the Corporation in accordance with the terms of this Indenture. (15) If a Change of Control Repurchase Date falls after an Payment Record Date and on or before the related Interest Payment Date, then interest on the Debentures payable on such Interest Payment Date will be payable to the Holders in whose names the Debentures are registered at the close of business on such Payment Record Date.

Appears in 1 contract

Samples: Subscription Agreement (Fairfax Financial Holdings LTD/ Can)

Repurchase of Debentures at Option of the Holder upon a Change of Control. (1) If a Change of Control occurs prior to the Maturity Date, the Corporation shall make an offer to each Holder the Debentureholders to: (a) purchase repurchase for cash all or a such portion of the Debentures of such Holder for a cash payment Holders equal to $1,000 principal amount (or an integral multiple thereof) which are Outstanding immediately prior to such Change of Control, at a price equal to 105% of the principal amount of the Debentures then Outstanding plus any accrued and unpaid interest thereon (the “Change of Control Repurchase Price”) on the Change of Control Repurchase Price (with respect to the Debentures so converted) Date (the "Repayment Offer"); or (b) convert if as a result of the Change of Control there is or will be a Successor Entity, subject to Applicable Law, exchange all or a such portion of the Debentures of such Holder into such number of Common Shares Holders equal to the $1,000 principal amount (or an integral multiple thereof) which are Outstanding immediately prior to such Change of Control Repurchase Price into debentures of the Successor Entity (the “Exchanged Debentures”), with respect each $1,000 principal amount (or an integral multiple thereof) being exchanged for unsecured convertible debentures of the Successor Entity with a principal amount of $1,000 with interest, payment and maturity provisions that are economically equivalent to the Debentures so converted) divided by the Conversion Price (the "Conversion “Exchange Offer", ” and together with the Repayment Offer, the "Change of Control Offer"), in each case, to occur on the Change of Control Repurchase Date, provided that in the event that a Debentureholder does not accept or exercise the Change of Control Offer in accordance with the terms of this Indenture, the Corporation will have the right, but not the obligation, in its sole discretion, to carry out either the purchase or conversion pursuant to the Change of Control Offer, in its sole discretion, on the Change of Control Repurchase Date. (2) As promptly as practicable following the date on which the Corporation announces the Change of Control, but in no event less than 30 days prior to the anticipated date of completion of a Change of Control, the Corporation shall mail a written notice of the Change of Control to the Trustee and to each Holder (and to beneficial Holders as required by Applicable Securities Laws) (the "Change of Control Notice"). The Change of Control Notice shall include the form of a Change of Control Repurchase Notice (as defined below) to be completed by the Holder and shall state the Change of Control Offer and the following: (i) the events causing such Change of Control; (ii) the date (or expected date) of such Change of Control; (iii) the last date by which the Change of Control Repurchase Notice must be delivered to elect an option pursuant to this Section 3.33.1; (iv) the Change of Control Repurchase Date; (v) the Change of Control Repurchase Price; (vi) the Holder’s right to require the Corporation to purchase all or a portion of the Debentures, Debentures or to convert all or a portion of the Debentures, exchange such Debentures for Exchanged Debentures pursuant to the Change of Control Offer; (vii) the name and address of the Trustee; (viii) the procedures that the Holder must follow to exercise rights under this Section 3.3; (ix) the procedures that the Holder must follow to withdraw a Change of Control Repurchase Notice; (x) that, unless the Corporation fails to pay such Change of Control Repurchase Price, Debentures covered by any Change of Control Repurchase Notice will cease to be outstanding and interest will cease to accrue on and after the Change of Control Repurchase Date; (xi) that the in the event that such Holder does not accept or exercise the Change of Control Offer in accordance with the terms of this Indenture, the Corporation will have the right, but not the obligation, to carry out the repurchase or conversion pursuant to the Change of Control Offer, in its sole discretion, on the Change of Control Repurchase Date, and that Debentures so purchase or converted by the Corporation will cease to be outstanding and interest will cease to accrue on and after the Change of Control Purchase Date; and (xii) the CUSIP number of the Debentures. At the Corporation’s request, the Trustee shall give such Change of Control Notice in the Corporation’s name, at the Corporation’s expense, and within the notice period set out above; provided, that, in all cases, the text of such Change of Control Notice shall be prepared by the Corporation. (3) A Holder may exercise its rights specified in this Section 3.3 upon delivery of a written notice and which may be delivered by letter, overnight courier, hand delivery, electronic transmission or in any other written form and, in the case of Uncertificated Debentures, may be delivered electronically or by other means in accordance with the Depository’s applicable procedures) of the exercise of such rights (a "Change of Control Repurchase Notice") to the Corporation or the Trustee at any time prior to the close of business on the fifth Business Day prior to the Change of Control Repurchase Date, subject to extension to comply with Applicable Laws. (4) The Change of Control Repurchase Notice shall state: (i) the certificate number of the Debenture which the Holder will deliver to be purchased or exchanged (or, if the Debenture is in Uncertificated Debenture form, any other items required to comply with the applicable procedures), (ii) the portion of the principal amount of the Debenture which the Holder will deliver to be purchased or converted, in integral multiples of $1,000, and (iii) that such Debenture shall be purchased or converted as of the Change of Control Repurchase Date pursuant to the terms and conditions specified in the Debentures and in this Indenture. (5) The delivery of a Debenture for which a Change of Control Repurchase Notice has been timely delivered to the Trustee and not validly withdrawn prior to, on or after the Change of Control Repurchase Date (together with all necessary endorsements) at the office of the Trustee shall be a condition to the receipt by the Holder of the Change of Control Repurchase Price or Common Shares therefor. (6) The Corporation shall only be obliged to purchase or exchange, pursuant to this Section 3.3, a portion of a Debenture if the principal amount of such portion is $1,000 or an integral multiple of $1,000 (provisions of this Indenture that apply to the purchase of all of a Debenture also apply to the purchase of such portion of such Debenture). (7) Notwithstanding anything herein to the contrary, any Holder delivering to the Trustee the Change of Control Repurchase Notice contemplated by this Section 3.3 shall have the right to withdraw such Change of Control Repurchase Notice in whole or in a portion thereof that is a principal amount of $1,000 or in an integral multiple thereof, at any time prior to the close of business on the fifth Business Day prior to the Change of Control Repurchase Date by delivery of a written notice of withdrawal to the Trustee in accordance with the procedures set out in the Change of Control Notice or, if not set out therein, then in accordance with this Section 3.3(7). (8) The Trustee shall promptly notify the Corporation of the receipt by it of any Change of Control Repurchase Notice or written withdrawal thereof. (9) Anything herein to the contrary notwithstanding, in the case of Uncertificated Debentures, any Change of Control Repurchase Notice may be delivered or withdrawn and such securities may be surrendered or delivered for purchase in accordance with the applicable procedures of the Depository as in effect from time to time. (10) Upon receipt by the Trustee of a properly completed Change of Control Repurchase Notice from a Holder, the Holder of the Debenture in respect of which such Change of Control Repurchase Notice was given shall (unless such Change of Control Repurchase Notice is withdrawn as specified in Section 3.3(11)), thereafter be entitled to receive the Change of Control Repurchase Price or Common Shares thereof, as the case may be, with respect to such Debenture, subject to there being no Event of Default then occurring including a continuation thereof (other than a default in the payment of the Change of Control Repurchase Price). The Change of Control Repurchase Price shall be paid or the Common Shares issued to such Holder promptly following the later of (i) the Change of Control Repurchase Date and (ii) the time of delivery of such Debenture to the Trustee by the Holder thereof in the manner required by this Section 3.3. (11) A Change of Control Repurchase Notice may be withdrawn by means of a written notice (which may be delivered by mail, overnight courier, hand delivery, electronic transmission or in any other written form and, in the case of Uncertificated Debentures, may be delivered electronically or by other means in accordance with the applicable procedures of the Depository) of withdrawal delivered by the Holder to the Trustee at any time prior to the close of business on the fifth Business Day immediately prior to the Change of Control Repurchase Date, specifying (1) the principal amount of the Debenture or portion thereof (which must be a principal amount of $1,000 or an integral multiple of $1,000 in excess thereof), with respect to which such notice of withdrawal is being submitted, (2) if Certificated Debentures have been issued, the certificate number of the Debentures being withdrawn in whole or in withdrawable part (or if the Debentures are not Uncertificated Debentures, such written notice must comply with the applicable procedures of the Depository) and (3) the portion of the principal amount of the Debentures that will remain subject to the Change of Control Repurchase Notice, which portion must be a principal amount of $1,000 or an integral multiple thereof. (12) On or before 12:00 p.m. (Calgary time) on the Business Day prior to the applicable Change of Control Repurchase Date, the Corporation shall deposit with the Trustee an amount of money (in immediately available funds if deposited on or after such Change of Control Repurchase Date), sufficient to pay the aggregate Change of Control Repurchase Price of all the Debentures or portions thereof that are to be purchased as of such Change of Control Repurchase Date, and/or shall deposit with the Trustee or cause to be issued such number of Common Shares as is equal to the number of Common Shares to be issued to Holders on the Change of Control Repurchase Date pursuant to the conversion of the Debentures. (13) If a Trustee holds, in accordance with the terms hereof, money sufficient to pay the Change of Control Repurchase Price, and/or such number of Common Shares as is necessary to satisfy the conversion, of any Debenture for which a Change of Control Repurchase Notice has been tendered and not withdrawn in accordance with this Indenture then, on the Business Day following the applicable Change of Control Repurchase Date, such Debenture will cease to be outstanding, whether or not the Debenture is delivered to the Trustee, and interest shall cease to accrue, and the rights of the Holder in respect of the Debenture shall terminate (other than the right to receive the Change of Control Repurchase Price and/or Common Shares as aforesaid). The Corporation shall publicly announce the principal amount of Debentures purchased and/or converted on or as soon as practicable after the Change of Control Repurchase Date. (14) The Trustee will promptly return to the respective Holders thereof any Debentures with respect to which a Change of Control Repurchase Notice has been withdrawn in compliance with this Indenture and which has not been repurchased or converted by the Corporation in accordance with the terms of this Indenture. (15) If a Change of Control Repurchase Date falls after an Payment Record Date and on or before the related Interest Payment Date, then interest on the Debentures payable on such Interest Payment Date will be payable to the Holders in whose names the Debentures are registered at the close of business on such Payment Record Date.;

Appears in 1 contract

Samples: Indenture

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Repurchase of Debentures at Option of the Holder upon a Change of Control. (1a) If a Change of Control occurs prior to the Maturity Date, the Corporation Issuer shall make an offer to each Holder to: (a) purchase the Holders to repurchase for cash on the Change of Control Repurchase Date all or a any portion of the Debentures of each such Holder for a cash payment equal to Holder, at the Change of Control Repurchase Price (with respect to the Debentures so converted) (the "Repayment Offer"); or (b) convert all or a portion of the Debentures of such Holder into such number of Common Shares equal to the Change of Control Repurchase Price (with respect to the Debentures so converted) divided by the Conversion Price (the "Conversion Offer", together with the Repayment Offer, the "Change of Control Offer"), in each case, to occur on the Change of Control Repurchase Date, ”) (provided that in the event that case of a Debentureholder does not accept or exercise the Change of Control Offer caused by Fairfax or any Affiliate thereof, whether by itself or together with any other Person with whom Fxxxxxx or any such Affiliate is acting jointly or in accordance with the terms of this Indentureconcert, the Corporation will have the right, but Issuer shall not the obligation, in its sole discretion, be required to carry out either the purchase or conversion pursuant to the make a Change of Control Offer, in its sole discretion, on the Change of Control Repurchase Date. (2) Repayment Offer with respect to any Debentures beneficially held by Fairfax or any Affiliate thereof or any other such Person). As promptly as practicable following the date on which the Corporation announces the Change of Control, but in no any event less than 30 within ten (10) days prior to after the anticipated date occurrence of completion of a such Change of Control, the Corporation Issuer shall mail a written provide notice of the Change of Control to the Trustee and to each Holder (and to beneficial Holders as required by Applicable Securities Laws) in the manner provided in section 16.2 (the "Change of Control Issuer Notice"). The Change of Control Issuer Notice shall include the form of a Change of Control Repurchase Notice (as defined below) to be completed by the Holder and shall state the Change of Control Repayment Offer and the following: : (i) the events causing such Change of Control; ; (ii) the date of such Change of Control; ; (iii) the last date by which the Change of Control Repurchase Notice must be delivered to elect an the repurchase option pursuant to this Section 3.3; section 3.2; (iv) the Change of Control Repurchase Date; ; (v) the Change of Control Repurchase Price; ; (vi) the Holder’s right to require the Corporation Issuer to purchase all or a portion of the Debentures, or to convert all or a portion of the Debentures, pursuant to Debentures held by such Holder by accepting the Change of Control Repayment Offer; ; (vii) the name then effective Conversion Price and address Conversion Rate and any adjustments to the Conversion Rate resulting from such Change of the Trustee; Control and details of all such calculations; (viii) the procedures that the Holder must follow to exercise conversion rights under Article 5 and that Debentures as to which a Change of Control Repurchase Notice has been given may be converted into Common Shares pursuant to Article 5 of this Debenture only to the extent that the Change of Control Repurchase Notice has been withdrawn in accordance with the terms of this Debenture; (ix) the procedures that the Holder must follow to exercise rights under this Section 3.3; section 3.2; (ixx) the procedures that the Holder must follow to withdraw a Change of Control Repurchase Notice; and (xxi) that, unless the Corporation Issuer fails to pay such Change of Control Repurchase Price, Debentures covered by any Change of Control Repurchase Notice will cease to be outstanding and interest will cease to accrue on and after the Change of Control Repurchase Date; (xi) that the in the event that such Holder does not accept or exercise the Change of Control Offer in accordance with the terms of this Indenture, the Corporation will have the right, but not the obligation, to carry out the repurchase or conversion pursuant to the Change of Control Offer, in its sole discretion, on the Change of Control Repurchase Date, and that Debentures so purchase or converted by the Corporation will cease to be outstanding and interest will cease to accrue on and after the Change of Control Purchase Date; and (xii) the CUSIP number of the Debentures. At the Corporation’s request, the Trustee shall give such Change of Control Notice in the Corporation’s name, at the Corporation’s expense, and within the notice period set out above; provided, that, in all cases, the text of such Change of Control Notice shall be prepared by the Corporation. (3b) A Holder may exercise its rights specified in this Section 3.3 upon delivery accept a Change of Control Repayment Offer by delivering a written notice and (which may be delivered by letter, overnight courier, hand delivery, electronic facsimile transmission or in any other written form and, in the case of Uncertificated Debentures, may be delivered electronically or by other means in accordance with the Depository’s applicable proceduresform) of the exercise of such rights acceptance (a "Change of Control Repurchase Notice") to the Corporation or the Trustee Issuer at any time prior to the close of business on the fifth second Business Day prior to next preceding the Change of Control Repurchase Date, subject to extension to comply with Applicable Laws. (4i) The Change of Control Repurchase Notice shall state: (iA) the certificate number of the Debenture which the Holder will deliver to be purchased or exchanged (or, if the Debenture is in Uncertificated Debenture form, any other items required to comply with the applicable procedures)purchased, (iiB) the portion of the principal amount of the Debenture which the Holder will deliver to be purchased or convertedpurchased, in integral multiples of $1,000, and (iiiC) that such Debenture shall be purchased or converted as of the Change of Control Repurchase Date pursuant to the terms and conditions specified in the Debentures and in this IndentureDebentures. (5ii) The delivery of a Debenture for which a Change of Control Repurchase Notice has been timely delivered to the Trustee Issuer and not validly withdrawn prior to, on or after the Change of Control Repurchase Date (together with all necessary endorsements) at the principal office of the Trustee Issuer in Waterloo, Ontario, shall be a condition to the receipt by the Holder of the Change of Control Repurchase Price or Common Shares therefor. (6iii) The Corporation Issuer shall only be obliged to purchase or exchangepurchase, pursuant to this Section 3.3section 3.2, a portion of a Debenture if the principal amount of such portion is $1,000 or an integral multiple of $1,000 (provisions of this Indenture Debenture that apply to the purchase of all of a Debenture also apply to the purchase of such portion of such Debenture). (7c) Notwithstanding anything herein to the contrary, any Holder delivering to the Trustee Issuer the Change of Control Repurchase Notice contemplated by this Section 3.3 section 3.2 shall have the right to withdraw such Change of Control Repurchase Notice in whole or in a portion thereof that is a principal amount of $1,000 or in an integral multiple thereof, at any time prior to the close of business on the fifth third Business Day prior to the Change of Control Repurchase Date by delivery of a written notice of withdrawal to the Trustee Issuer in accordance with the procedures set out in the Change of Control Issuer Notice or, if not set out therein, then in accordance with this Section 3.3(7). (8) The Trustee shall promptly notify the Corporation of the receipt by it of any Change of Control Repurchase Notice or written withdrawal thereof. (9) Anything herein to the contrary notwithstanding, in the case of Uncertificated Debentures, any Change of Control Repurchase Notice may be delivered or withdrawn and such securities may be surrendered or delivered for purchase in accordance with the applicable procedures of the Depository as in effect from time to time. (10) Upon receipt by the Trustee of a properly completed Change of Control Repurchase Notice from a Holder, the Holder of the Debenture in respect of which such Change of Control Repurchase Notice was given shall (unless such Change of Control Repurchase Notice is withdrawn as specified in Section 3.3(11)), thereafter be entitled to receive the Change of Control Repurchase Price or Common Shares thereof, as the case may be, with respect to such Debenture, subject to there being no Event of Default then occurring including a continuation thereof (other than a default in the payment of the Change of Control Repurchase Price). The Change of Control Repurchase Price shall be paid or the Common Shares issued to such Holder promptly following the later of (i) the Change of Control Repurchase Date and (ii) the time of delivery of such Debenture to the Trustee by the Holder thereof in the manner required by this Section section 3.3. (11) A Change of Control Repurchase Notice may be withdrawn by means of a written notice (which may be delivered by mail, overnight courier, hand delivery, electronic transmission or in any other written form and, in the case of Uncertificated Debentures, may be delivered electronically or by other means in accordance with the applicable procedures of the Depository) of withdrawal delivered by the Holder to the Trustee at any time prior to the close of business on the fifth Business Day immediately prior to the Change of Control Repurchase Date, specifying (1) the principal amount of the Debenture or portion thereof (which must be a principal amount of $1,000 or an integral multiple of $1,000 in excess thereof), with respect to which such notice of withdrawal is being submitted, (2) if Certificated Debentures have been issued, the certificate number of the Debentures being withdrawn in whole or in withdrawable part (or if the Debentures are not Uncertificated Debentures, such written notice must comply with the applicable procedures of the Depository) and (3) the portion of the principal amount of the Debentures that will remain subject to the Change of Control Repurchase Notice, which portion must be a principal amount of $1,000 or an integral multiple thereof. (12) On or before 12:00 p.m. (Calgary time) on the Business Day prior to the applicable Change of Control Repurchase Date, the Corporation shall deposit with the Trustee an amount of money (in immediately available funds if deposited on or after such Change of Control Repurchase Date), sufficient to pay the aggregate Change of Control Repurchase Price of all the Debentures or portions thereof that are to be purchased as of such Change of Control Repurchase Date, and/or shall deposit with the Trustee or cause to be issued such number of Common Shares as is equal to the number of Common Shares to be issued to Holders on the Change of Control Repurchase Date pursuant to the conversion of the Debentures. (13) If a Trustee holds, in accordance with the terms hereof, money sufficient to pay the Change of Control Repurchase Price, and/or such number of Common Shares as is necessary to satisfy the conversion, of any Debenture for which a Change of Control Repurchase Notice has been tendered and not withdrawn in accordance with this Indenture then, on the Business Day following the applicable Change of Control Repurchase Date, such Debenture will cease to be outstanding, whether or not the Debenture is delivered to the Trustee, and interest shall cease to accrue, and the rights of the Holder in respect of the Debenture shall terminate (other than the right to receive the Change of Control Repurchase Price and/or Common Shares as aforesaid). The Corporation shall publicly announce the principal amount of Debentures purchased and/or converted on or as soon as practicable after the Change of Control Repurchase Date. (14) The Trustee will promptly return to the respective Holders thereof any Debentures with respect to which a Change of Control Repurchase Notice has been withdrawn in compliance with this Indenture and which has not been repurchased or converted by the Corporation in accordance with the terms of this Indenture. (15) If a Change of Control Repurchase Date falls after an Payment Record Date and on or before the related Interest Payment Date, then interest on the Debentures payable on such Interest Payment Date will be payable to the Holders in whose names the Debentures are registered at the close of business on such Payment Record Date.

Appears in 1 contract

Samples: Subscription Agreement (Fairfax Financial Holdings LTD/ Can)

Repurchase of Debentures at Option of the Holder upon a Change of Control. (1a) If Upon the occurrence of a Change of Control occurs prior to the Maturity Date, each Holder of Debentures has the right to require the Corporation shall make an offer to each Holder to: (ai) purchase repurchase for cash all or a such portion of the Debentures of such Holder for a cash payment Holders equal to $1,000 principal amount (or an integral multiple thereof) which are Outstanding immediately prior to such Change of Control, at a price equal to 105% of the principal amount of the Debentures then Outstanding plus any accrued and unpaid interest thereon (the "Change of Control Repurchase Price") on the Change of Control Repurchase Price (with respect to the Debentures so converted) Date (the "Repayment Offer"); or (bii) convert if as a result of the Change of Control there is or will be a Successor Entity, subject to Applicable Law, exchange all or a such portion of the Debentures of such Holder into such number of Common Shares Holders equal to the $1,000 principal amount (or an integral multiple thereof) which are Outstanding immediately prior to such Change of Control Repurchase Price into debentures of the Successor Entity (the "Exchanged Debentures"), with respect each $1,000 principal amount (or an integral multiple thereof) being exchanged for unsecured convertible debentures of the Successor Entity with a principal amount of $1,000 with interest, payment and maturity provisions that are economically equivalent to the Debentures so converted) divided by the Conversion Price (the "Conversion Exchange Offer", " and together with the Repayment Offer, the "Change of Control Offer"), in each caseprovided that if 90% or more of the principal amount of all of the Debentures then Outstanding on the date of the Change of Control Notice are tendered for redemption pursuant to the Repayment Offer, the Exchange Offer shall be deemed to occur on be withdrawn and the Corporation shall have the right, at its option, at any time within 30 days of the Change of Control Repurchase Date, provided that in the event that a Debentureholder does not accept or exercise the Change Date of Control Offer in accordance with the terms of this Indenture, the Corporation will have the right, but not the obligation, in its sole discretion, to carry out either the purchase or conversion pursuant to the such Change of Control Offer, in its sole discretionto elect to redeem all, on but not less than all, of the remaining Debentures that are then Outstanding, at the Change of Control Repurchase DatePrice of such Repayment Offer. (2b) As promptly as practicable following the date on which the Corporation announces the Change of Control, but in no event less than 30 days prior to the anticipated date of completion of a Change of Control, the Corporation shall mail a written notice of the Change of Control to the Trustee and to each Holder (and to beneficial Holders as required by Applicable Securities Laws) (the "Change of Control Notice"). The Change of Control Notice shall include the form of a Change of Control Repurchase Notice (as defined below) to be completed by the Holder and shall state the Change of Control Offer and the following: (i) the events causing such Change of Control; (ii) the date (or expected date) of such Change of Control; (iii) the last date by which the Change of Control Repurchase Notice must be delivered to elect an option pursuant to this Section 3.33.1; (iv) the Change of Control Repurchase Date; (v) the Change of Control Repurchase Price; (vi) the Holder’s 's right to require the Corporation to purchase all or a portion of the Debentures, Debentures or to convert all or a portion of the Debentures, exchange such Debentures for Exchanged Debentures pursuant to the Change of Control Offer; (vii) the name and address of the Trustee; (viii) the procedures that the Holder must follow to exercise rights under this Section 3.3; (ix) the procedures that the Holder must follow to withdraw a Change of Control Repurchase Notice; (x) that, unless the Corporation fails to pay such Change of Control Repurchase Price, Debentures covered by any Change of Control Repurchase Notice will cease to be outstanding and interest will cease to accrue on and after the Change of Control Repurchase Date; (xi) that the in the event that such Holder does not accept or exercise the Change of Control Offer in accordance with the terms of this Indenture, the Corporation will have the right, but not the obligation, to carry out the repurchase or conversion pursuant to the Change of Control Offer, in its sole discretion, on the Change of Control Repurchase Date, and that Debentures so purchase or converted by the Corporation will cease to be outstanding and interest will cease to accrue on and after the Change of Control Purchase Date; and (xii) the CUSIP number of the Debentures3.1. At the Corporation’s 's request, the Trustee shall give such Change of Control Notice in the Corporation’s 's name, at the Corporation’s 's expense, and within the notice period set out above; provided, that, in all cases, the text of such Change of Control Notice shall be prepared by the Corporation. (3) A Holder may exercise its rights specified in this Section 3.3 upon delivery of a written notice and which may be delivered by letter, overnight courier, hand delivery, electronic transmission or in any other written form and, in the case of Uncertificated Debentures, may be delivered electronically or by other means in accordance with the Depository’s applicable procedures) of the exercise of such rights (a "Change of Control Repurchase Notice") to the Corporation or the Trustee at any time prior to the close of business on the fifth Business Day prior to the Change of Control Repurchase Date, subject to extension to comply with Applicable Laws. (4) The Change of Control Repurchase Notice shall state: (i) the certificate number of the Debenture which the Holder will deliver to be purchased or exchanged (or, if the Debenture is in Uncertificated Debenture form, any other items required to comply with the applicable procedures), (ii) the portion of the principal amount of the Debenture which the Holder will deliver to be purchased or converted, in integral multiples of $1,000, and (iii) that such Debenture shall be purchased or converted as of the Change of Control Repurchase Date pursuant to the terms and conditions specified in the Debentures and in this Indenture. (5) The delivery of a Debenture for which a Change of Control Repurchase Notice has been timely delivered to the Trustee and not validly withdrawn prior to, on or after the Change of Control Repurchase Date (together with all necessary endorsements) at the office of the Trustee shall be a condition to the receipt by the Holder of the Change of Control Repurchase Price or Common Shares therefor. (6) The Corporation shall only be obliged to purchase or exchange, pursuant to this Section 3.3, a portion of a Debenture if the principal amount of such portion is $1,000 or an integral multiple of $1,000 (provisions of this Indenture that apply to the purchase of all of a Debenture also apply to the purchase of such portion of such Debenture). (7) Notwithstanding anything herein to the contrary, any Holder delivering to the Trustee the Change of Control Repurchase Notice contemplated by this Section 3.3 shall have the right to withdraw such Change of Control Repurchase Notice in whole or in a portion thereof that is a principal amount of $1,000 or in an integral multiple thereof, at any time prior to the close of business on the fifth Business Day prior to the Change of Control Repurchase Date by delivery of a written notice of withdrawal to the Trustee in accordance with the procedures set out in the Change of Control Notice or, if not set out therein, then in accordance with this Section 3.3(7). (8) The Trustee shall promptly notify the Corporation of the receipt by it of any Change of Control Repurchase Notice or written withdrawal thereof. (9) Anything herein to the contrary notwithstanding, in the case of Uncertificated Debentures, any Change of Control Repurchase Notice may be delivered or withdrawn and such securities may be surrendered or delivered for purchase in accordance with the applicable procedures of the Depository as in effect from time to time. (10) Upon receipt by the Trustee of a properly completed Change of Control Repurchase Notice from a Holder, the Holder of the Debenture in respect of which such Change of Control Repurchase Notice was given shall (unless such Change of Control Repurchase Notice is withdrawn as specified in Section 3.3(11)), thereafter be entitled to receive the Change of Control Repurchase Price or Common Shares thereof, as the case may be, with respect to such Debenture, subject to there being no Event of Default then occurring including a continuation thereof (other than a default in the payment of the Change of Control Repurchase Price). The Change of Control Repurchase Price shall be paid or the Common Shares issued to such Holder promptly following the later of (i) the Change of Control Repurchase Date and (ii) the time of delivery of such Debenture to the Trustee by the Holder thereof in the manner required by this Section 3.3. (11) A Change of Control Repurchase Notice may be withdrawn by means of a written notice (which may be delivered by mail, overnight courier, hand delivery, electronic transmission or in any other written form and, in the case of Uncertificated Debentures, may be delivered electronically or by other means in accordance with the applicable procedures of the Depository) of withdrawal delivered by the Holder to the Trustee at any time prior to the close of business on the fifth Business Day immediately prior to the Change of Control Repurchase Date, specifying (1) the principal amount of the Debenture or portion thereof (which must be a principal amount of $1,000 or an integral multiple of $1,000 in excess thereof), with respect to which such notice of withdrawal is being submitted, (2) if Certificated Debentures have been issued, the certificate number of the Debentures being withdrawn in whole or in withdrawable part (or if the Debentures are not Uncertificated Debentures, such written notice must comply with the applicable procedures of the Depository) and (3) the portion of the principal amount of the Debentures that will remain subject to the Change of Control Repurchase Notice, which portion must be a principal amount of $1,000 or an integral multiple thereof. (12) On or before 12:00 p.m. (Calgary time) on the Business Day prior to the applicable Change of Control Repurchase Date, the Corporation shall deposit with the Trustee an amount of money (in immediately available funds if deposited on or after such Change of Control Repurchase Date), sufficient to pay the aggregate Change of Control Repurchase Price of all the Debentures or portions thereof that are to be purchased as of such Change of Control Repurchase Date, and/or shall deposit with the Trustee or cause to be issued such number of Common Shares as is equal to the number of Common Shares to be issued to Holders on the Change of Control Repurchase Date pursuant to the conversion of the Debentures. (13) If a Trustee holds, in accordance with the terms hereof, money sufficient to pay the Change of Control Repurchase Price, and/or such number of Common Shares as is necessary to satisfy the conversion, of any Debenture for which a Change of Control Repurchase Notice has been tendered and not withdrawn in accordance with this Indenture then, on the Business Day following the applicable Change of Control Repurchase Date, such Debenture will cease to be outstanding, whether or not the Debenture is delivered to the Trustee, and interest shall cease to accrue, and the rights of the Holder in respect of the Debenture shall terminate (other than the right to receive the Change of Control Repurchase Price and/or Common Shares as aforesaid). The Corporation shall publicly announce the principal amount of Debentures purchased and/or converted on or as soon as practicable after the Change of Control Repurchase Date. (14) The Trustee will promptly return to the respective Holders thereof any Debentures with respect to which a Change of Control Repurchase Notice has been withdrawn in compliance with this Indenture and which has not been repurchased or converted by the Corporation in accordance with the terms of this Indenture. (15) If a Change of Control Repurchase Date falls after an Payment Record Date and on or before the related Interest Payment Date, then interest on the Debentures payable on such Interest Payment Date will be payable to the Holders in whose names the Debentures are registered at the close of business on such Payment Record Date.

Appears in 1 contract

Samples: Indenture (C21 Investments Inc.)

Repurchase of Debentures at Option of the Holder upon a Change of Control. (1) If a Change of Control occurs prior to the Maturity Date, the Corporation shall make an offer to each Holder the Debentureholders to: (a) purchase repurchase for cash all or a such portion of the Debentures of such Holder for a cash payment Holders equal to $1,000 principal amount (or an integral multiple thereof) which are Outstanding immediately prior to such Change of Control, at a price equal to 105% of the principal amount of the Debentures then Outstanding plus any accrued and unpaid interest thereon (the “Change of Control Repurchase Price”) on the Change of Control Repurchase Price (with respect to the Debentures so converted) Date (the "Repayment Offer"); or (b) convert if as a result of the Change of Control there is or will be a Successor Entity, subject to Applicable Law, exchange all or a such portion of the Debentures of such Holder into such number of Common Shares Holders equal to the $1,000 principal amount (or an integral multiple thereof) which are Outstanding immediately prior to such Change of Control Repurchase Price into debentures of the Successor Entity (the “Exchanged Debentures”), with respect each $1,000 principal amount (or an integral multiple thereof) being exchanged for unsecured convertible debentures of the Successor Entity with a principal amount of $1,000 with interest, payment and maturity provisions that are economically equivalent to the Debentures so converted) divided by the Conversion Price (the "Conversion “Exchange Offer", ” and together with the Repayment Offer, the "Change of Control Offer"), in each case, to occur on the Change of Control Repurchase Date, provided that in the event that a Debentureholder does not accept or exercise the Change of Control Offer in accordance with the terms of this Indenture, the Corporation will have the right, but not the obligation, in its sole discretion, to carry out either the purchase or conversion pursuant to the Change of Control Offer, in its sole discretion, on the Change of Control Repurchase Date. (2) As promptly as practicable following the date on which the Corporation announces the Change of Control, but in no event less than 30 days prior to the anticipated date of completion of a Change of Control, the Corporation shall mail a written notice of the Change of Control to the Trustee and to each Holder (and to beneficial Holders as required by Applicable Securities Laws) (the "Change of Control Notice"). The Change of Control Notice shall include the form of a Change of Control Repurchase Notice (as defined below) to be completed by the Holder and shall state the Change of Control Offer and the following: (i) the events causing such Change of Control; (ii) the date (or expected date) of such Change of Control; (iii) the last date by which the Change of Control Repurchase Notice must be delivered to elect an option pursuant to this Section 3.33.1; (iv) the Change of Control Repurchase Date; (v) the Change of Control Repurchase Price; (vi) the Holder’s right to require the Corporation to purchase all or a portion of the Debentures, Debentures or to convert all or a portion of the Debentures, exchange such Debentures for Exchanged Debentures pursuant to the Change of Control Offer; (vii) the name and address of the Trustee; (viii) the procedures that the Holder must follow to exercise rights under this Section 3.33.1; and (ix) the procedures that the Holder must follow to withdraw a Change of Control Repurchase Notice; (x) that, unless the Corporation fails to pay such Change of Control Repurchase Price, Debentures covered by any Change of Control Repurchase Notice will cease to be outstanding and interest will cease to accrue on and after the Change of Control Repurchase Date; (xi) that the in the event that such Holder does not accept or exercise the Change of Control Offer in accordance with the terms of this Indenture, the Corporation will have the right, but not the obligation, to carry out the repurchase or conversion pursuant to the Change of Control Offer, in its sole discretion, on the Change of Control Repurchase Date, and that Debentures so purchase or converted by the Corporation will cease to be outstanding and interest will cease to accrue on and after the Change of Control Purchase Date; and (xii) the CUSIP number of the Debentures. At the Corporation’s request, the Trustee shall give such Change of Control Notice in the Corporation’s name, at the Corporation’s expense, and within the notice period set out above; provided, that, in all cases, the text of such Change of Control Notice shall be prepared by the Corporation. (3) A Holder may exercise its rights specified in this Section 3.3 3.1 upon delivery of a written notice and which may be delivered by letter, overnight courier, hand delivery, electronic facsimile transmission or in any other written form and, in the case of Uncertificated DebenturesDebenture, may be delivered electronically or by other means in accordance with the Depository’s applicable procedures) of the exercise of such rights (a "Change of Control Repurchase Notice") to the Corporation or the Trustee at any time prior to the close of business on the fifth Business Day prior to next preceding the Change of Control Repurchase Date, subject to extension to comply with Applicable Laws. (4) The Change of Control Repurchase Notice shall state: (i) the certificate number of the Debenture which the Holder will deliver to be purchased or exchanged (or, if the Debenture is in Uncertificated Debenture form, any other items required to comply with the applicable procedures), (ii) the portion of the principal amount of the Debenture which the Holder will deliver to be purchased or convertedexchanged, in integral multiples of $1,000, and (iii) that such Debenture shall be purchased or converted exchanged as of the Change of Control Repurchase Date pursuant to the terms and conditions specified in the Debentures and in this Indenture. (5) The delivery of a Debenture for which a Change of Control Repurchase Notice has been timely delivered to the Trustee and not validly withdrawn prior to, on or after the Change of Control Repurchase Date (together with all necessary endorsements) at the office of the Trustee shall be a condition to the receipt by the Holder of the Change of Control Repurchase Price or Common Shares Exchanged Debenturess therefor. (6) The Corporation shall only be obliged to purchase or exchange, pursuant to this Section 3.3, 3.1 a portion of a Debenture if the principal amount of such portion is $1,000 or an integral multiple of $1,000 (provisions of this Indenture that apply to the purchase of all of a Debenture also apply to the purchase of such portion of such Debenture). (7) Notwithstanding anything herein to the contrary, any Holder delivering to the Trustee the Change of Control Repurchase Notice contemplated by this Section 3.3 3.1 shall have the right to withdraw such Change of Control Repurchase Notice in whole or in a portion thereof that is a principal amount of $1,000 or in an integral multiple thereof, at any time prior to the close of business on the fifth Business Day prior to the Change of Control Repurchase Date by delivery of a written notice of withdrawal to the Trustee in accordance with the procedures set out in the Change of Control Notice or, if not set out therein, then in accordance with this Section 3.3(73.1(7). (8) The Trustee shall promptly notify the Corporation of the receipt by it of any Change of Control Repurchase Notice or written withdrawal thereof. (9) Anything herein to the contrary notwithstanding, in the case of Uncertificated Debentures, any Change of Control Repurchase Notice may be delivered or withdrawn and such securities may be surrendered or delivered for purchase in accordance with the applicable procedures of the Depository as in effect from time to time. (10) Upon receipt by the Trustee of a properly completed Change of Control Repurchase Notice from a Holder, the Holder of the Debenture in respect of which such Change of Control Repurchase Notice was given shall (unless such Change of Control Repurchase Notice is withdrawn as specified in Section 3.3(113.1(11)), thereafter be entitled to receive the Change of Control Repurchase Price or Common Shares thereofExchanged Debenturess, as the case may be, with respect to such Debenture, subject to there being no Event of Default then occurring including a continuation thereof (other than a default in the payment of the Change of Control Repurchase Price). The Change of Control Repurchase Price shall be paid or the Common Shares Exchanged Debenturess issued to such Holder promptly following the later of (i) the Change of Control Repurchase Date and (ii) the time of delivery of such Debenture to the Trustee by the Holder thereof in the manner required by this Section 3.33.1. (11) A Change of Control Repurchase Notice may be withdrawn by means of a written notice (which may be delivered by mail, overnight courier, hand delivery, electronic transmission or in any other written form and, in the case of Uncertificated Debentures, may be delivered electronically or by other means in accordance with the applicable procedures of the Depository) of withdrawal delivered by the Holder to the Trustee at any time prior to the close of business on the fifth Business Day immediately prior to the Change of Control Repurchase Date, specifying (1) the principal amount of the Debenture or portion thereof (which must be a principal amount of $1,000 or an integral multiple of $1,000 in excess thereof), with respect to which such notice of withdrawal is being submitted, (2) if Certificated Debentures have been issued, the certificate number of the Debentures being withdrawn in whole or in withdrawable part (or if the Debentures are not Uncertificated Debentures, such written notice must comply with the applicable procedures of the Depository) and (3) the portion of the principal amount of the Debentures that will remain subject to the Change of Control Repurchase Notice, which portion must be a principal amount of $1,000 or an integral multiple thereof. (12) On or before 12:00 p.m. (Calgary time) on the Business Day prior to the applicable Change of Control Repurchase Date, the Corporation shall deposit with the Trustee an amount of money (in immediately available funds if deposited on or after such Change of Control Repurchase Date), sufficient to pay the aggregate Change of Control Repurchase Price of all the Debentures or portions thereof that are to be purchased as of such Change of Control Repurchase Date, and/or shall deposit with the Trustee or cause to be issued such number of Common Shares as is equal to the number of Common Shares to be issued to Holders on the Change of Control Repurchase Date pursuant to the conversion of the Debentures. (13) If a Trustee holds, in accordance with the terms hereof, money sufficient to pay the Change of Control Repurchase Price, and/or such number of Common Shares as is necessary to satisfy the conversion, of any Debenture for which a Change of Control Repurchase Notice has been tendered and not withdrawn in accordance with this Indenture then, on the Business Day following the applicable Change of Control Repurchase Date, such Debenture will cease to be outstanding, whether or not the Debenture is delivered to the Trustee, and interest shall cease to accrue, and the rights of the Holder in respect of the Debenture shall terminate (other than the right to receive the Change of Control Repurchase Price and/or Common Shares as aforesaid). The Corporation shall publicly announce the principal amount of Debentures purchased and/or converted on or as soon as practicable after the Change of Control Repurchase Date. (14) The Trustee will promptly return to the respective Holders thereof any Debentures with respect to which a Change of Control Repurchase Notice has been withdrawn in compliance with this Indenture and which has not been repurchased or converted by the Corporation in accordance with the terms of this Indenture. (15) If a Change of Control Repurchase Date falls after an Payment Record Date and on or before the related Interest Payment Date, then interest on the Debentures payable on such Interest Payment Date will be payable to the Holders in whose names the Debentures are registered at the close of business on such Payment Record Date.

Appears in 1 contract

Samples: Indenture (CLS Holdings USA, Inc.)

Repurchase of Debentures at Option of the Holder upon a Change of Control. (1a) If Upon the occurrence of a Change of Control occurs prior to the Maturity Date, each Holder of Debentures has the right to require the Corporation shall make an offer to each Holder to: (ai) purchase repurchase for cash all or a such portion of the Debentures of such Holder for a cash payment Holders equal to $1,000 principal amount (or an integral multiple thereof) which are Outstanding immediately prior to such Change of Control, at a price equal to 105% of the principal amount of the Debentures then Outstanding plus any accrued and unpaid interest thereon (the “Change of Control Repurchase Price”) on the Change of Control Repurchase Price (with respect to the Debentures so converted) Date (the "Repayment Offer"); or (bii) convert if as a result of the Change of Control there is or will be a Successor Entity, subject to Applicable Law, exchange all or a such portion of the Debentures of such Holder into such number of Common Shares Holders equal to the $1,000 principal amount (or an integral multiple thereof) which are Outstanding immediately prior to such Change of Control Repurchase Price into debentures of the Successor Entity (the “Exchanged Debentures”), with respect each $1,000 principal amount (or an integral multiple thereof) being exchanged for unsecured convertible debentures of the Successor Entity with a principal amount of $1,000 with interest, payment and maturity provisions that are economically equivalent to the Debentures so converted) divided by the Conversion Price (the "Conversion “Exchange Offer", ” and together with the Repayment Offer, the "Change of Control Offer"), in each caseprovided that if 90% or more of the principal amount of all of the Debentures then Outstanding on the date of the Change of Control Notice are tendered for redemption pursuant to the Repayment Offer, the Exchange Offer shall be deemed to occur on be withdrawn and the Corporation shall have the right, at its option, at any time within 30 days of the Change of Control Repurchase Date, provided that in the event that a Debentureholder does not accept or exercise the Change Date of Control Offer in accordance with the terms of this Indenture, the Corporation will have the right, but not the obligation, in its sole discretion, to carry out either the purchase or conversion pursuant to the such Change of Control Offer, in its sole discretionto elect to redeem all, on but not less than all, of the remaining Debentures that are then Outstanding, at the Change of Control Repurchase DatePrice of such Repayment Offer. (2b) As promptly as practicable following the date on which the Corporation announces the Change of Control, but in no event less than 30 days prior to the anticipated date of completion of a Change of Control, the Corporation shall mail a written notice of the Change of Control to the Trustee and to each Holder (and to beneficial Holders as required by Applicable Securities Laws) (the "Change of Control Notice"). The Change of Control Notice shall include the form of a Change of Control Repurchase Notice (as defined below) to be completed by the Holder and shall state the Change of Control Offer and the following: (i) the events causing such Change of Control; (ii) the date (or expected date) of such Change of Control; (iii) the last date by which the Change of Control Repurchase Notice must be delivered to elect an option pursuant to this Section 3.33.1; (iv) the Change of Control Repurchase Date; (v) the Change of Control Repurchase Price; (vi) the Holder’s right to require the Corporation to purchase all or a portion of the Debentures, Debentures or to convert all or a portion of the Debentures, exchange such Debentures for Exchanged Debentures pursuant to the Change of Control Offer; (vii) the name and address of the Trustee; (viii) the procedures that the Holder must follow to exercise rights under this Section 3.3; (ix) the procedures that the Holder must follow to withdraw a Change of Control Repurchase Notice; (x) that, unless the Corporation fails to pay such Change of Control Repurchase Price, Debentures covered by any Change of Control Repurchase Notice will cease to be outstanding and interest will cease to accrue on and after the Change of Control Repurchase Date; (xi) that the in the event that such Holder does not accept or exercise the Change of Control Offer in accordance with the terms of this Indenture, the Corporation will have the right, but not the obligation, to carry out the repurchase or conversion pursuant to the Change of Control Offer, in its sole discretion, on the Change of Control Repurchase Date, and that Debentures so purchase or converted by the Corporation will cease to be outstanding and interest will cease to accrue on and after the Change of Control Purchase Date; and (xii) the CUSIP number of the Debentures3.1. At the Corporation’s request, the Trustee shall give such Change of Control Notice in the Corporation’s name, at the Corporation’s 's expense, and within the notice period set out above; provided, that, in all cases, the text of such Change of Control Notice shall be prepared by the Corporation. (3c) A Holder may exercise its rights specified in this Section 3.3 3.1 upon delivery of a written notice and which may be delivered by letter, overnight courier, hand delivery, electronic facsimile transmission or in any other written form and, in the case of Uncertificated DebenturesDebenture, may be delivered electronically or by other means in accordance with the Depository’s applicable procedures) of the exercise of such rights (a "Change of Control Repurchase Notice") to the Corporation or the Trustee at any time prior to the close of business on the fifth Business Day prior to next preceding the Change of Control Repurchase Date, subject to extension to comply with Applicable Laws. (4d) The Change of Control Repurchase Notice shall state: (i) the certificate number of the Debenture which the Holder will deliver to be purchased or exchanged (or, if the Debenture is in Uncertificated Debenture form, any other items required to comply with the applicable procedures), (ii) the portion of the principal amount of the Debenture which the Holder will deliver to be purchased or convertedexchanged, in integral multiples of $1,000, and (iii) that such Debenture shall be purchased or converted exchanged as of the Change of Control Repurchase Date pursuant to the terms and conditions specified in the Debentures and in this Indenture. (5e) The delivery of a Debenture for which a Change of Control Repurchase Notice has been timely delivered to the Trustee and not validly withdrawn prior to, on or after the Change of Control Repurchase Date (together with all necessary endorsements) at the office of the Trustee shall be a condition to the receipt by the Holder of the Change of Control Repurchase Price or Common Shares Exchanged Debentures therefor. (6f) The Corporation shall only be obliged to purchase or exchange, pursuant to this Section 3.33.1, a portion of a Debenture if the principal amount of such portion is $1,000 or an integral multiple of $1,000 (provisions of this Indenture that apply to the purchase of all of a Debenture also apply to the purchase of such portion of such Debenture). (7g) Notwithstanding anything herein to the contrary, any Holder delivering to the Trustee the Change of Control Repurchase Notice contemplated by this Section 3.3 3.1 shall have the right to withdraw such Change of Control Repurchase Notice in whole or in a portion thereof that is a principal amount of $1,000 or in an integral multiple thereof, at any time prior to the close of business on the fifth Business Day prior to the Change of Control Repurchase Date by delivery of a written notice of withdrawal to the Trustee in accordance with the procedures set out in the Change of Control Notice or, if not set out therein, then in accordance with this Section 3.3(73.1(g). (8) h) The Trustee shall promptly notify the Corporation of the receipt by it of any Change of Control Repurchase Notice or written withdrawal thereof. (9i) Anything herein to the contrary notwithstanding, in the case of Uncertificated Debentures, any Change of Control Repurchase Notice may be delivered or withdrawn and such securities may be surrendered or delivered for purchase in accordance with the applicable procedures of the Depository as in effect from time to time. (10j) Upon receipt by the Trustee of a properly completed Change of Control Repurchase Notice from a Holder, the Holder of the Debenture in respect of which such Change of Control Repurchase Notice was given shall (unless such Change of Control Repurchase Notice is withdrawn as specified in Section 3.3(113.1(k)), thereafter be entitled to receive the Change of Control Repurchase Price or Common Shares thereofExchanged Debentures, as the case may be, with respect to such Debenture, subject to there being no Event of Default then occurring including a continuation thereof (other than a default in the payment of the Change of Control Repurchase Price). The Change of Control Repurchase Price shall be paid or the Common Shares Exchanged Debentures issued to such Holder promptly following the later of of: (i) the Change of Control Repurchase Date and (ii) the time of delivery of such Debenture to the Trustee by the Holder thereof in the manner required by this Section 3.33.1. (11k) A Change of Control Repurchase Notice may be withdrawn by means of a written notice (which may be delivered by mail, overnight courier, hand delivery, electronic facsimile transmission or in any other written form and, in the case of Uncertificated Debentures, may be delivered electronically or by other means in accordance with the applicable procedures of the Depository) of withdrawal delivered by the Holder to the Trustee at any time prior to the close of business on the fifth Business Day immediately prior to the Change of Control Repurchase Date, specifying specifying: (1i) the principal amount of the Debenture or portion thereof (which must be a principal amount of $1,000 or an integral multiple of $1,000 in excess thereof), with respect to which such notice of withdrawal is being submitted, (2ii) if Certificated Debentures have been issued, the certificate number of the Debentures being withdrawn in whole or in withdrawable part (or if the Debentures are not Uncertificated Debentures, such written notice must comply with the applicable procedures of the Depository) and (3iii) the portion of the principal amount of the Debentures that will remain subject to the Change of Control Repurchase Notice, which portion must be a principal amount of $1,000 or an integral multiple thereof. (12l) On or before 12:00 p.m. (Calgary Vancouver time) on the Business Day prior to following the applicable Change of Control Repurchase Date, the Corporation shall deposit with the Trustee an amount of money (in immediately available funds if deposited on or after such Change of Control Repurchase Date), sufficient to pay the aggregate Change of Control Repurchase Price of all the Debentures or portions thereof that are to be purchased as of such Change of Control Repurchase Date, and/or shall deposit with the Trustee or cause to be issued such number of Common Shares as is equal to the number of Common Shares to be issued to Holders on the Change of Control Repurchase Date pursuant to the conversion of the Debentures. (13m) If a the Trustee holds, in accordance with the terms hereof, money sufficient to pay the Change of Control Repurchase Price, and/or such number of Common Shares as is necessary to satisfy the conversion, Price of any Debenture for which a Change of Control Repurchase Notice has been tendered and not withdrawn in accordance with this Indenture then, on the Business Day following the applicable Change of Control Repurchase Date, such Debenture will cease to be outstanding, whether or not the Debenture is delivered to the Trustee, and interest shall cease to accrue, and the rights of the Holder in respect of the Debenture shall terminate (other than the right to receive the Change of Control Repurchase Price and/or Common Shares as aforesaid). The Corporation shall publicly announce the principal amount of Debentures purchased and/or converted repurchased on or as soon as practicable after the Change of Control Repurchase Date. (14n) The Trustee will promptly return to the respective Holders thereof any Debentures with respect to which a Change of Control Repurchase Notice has been withdrawn in compliance with this Indenture and which has not been repurchased or converted by the Corporation in accordance with the terms of this Indenture. (15o) If a Change of Control Repurchase Date falls after an a Payment Record Date and on or before the related Interest Payment Date, then interest on the Debentures payable on such Interest Payment Date will be payable to the Holders in whose names the Debentures are registered at the close of business on such Payment Record Date. (p) Notwithstanding anything in this Section 3.1 to the contrary, the Corporation shall be entitled to withdraw the Change of Control Notice and, upon written order of the Corporation, the notice of Change of Control provided by the Trustee in accordance with Section 3.1(a) in the event that the anticipated Change of Control is terminated or does not occur. In such event, no Debentures shall be purchased hereunder and the Corporation shall be entitled to the return of any funds deposited as contemplated in Section 3.1(l) and any Debentures delivered by the Holders thereof to the Trustee shall be returned to such Holders.

Appears in 1 contract

Samples: Indenture (C21 Investments Inc.)

Repurchase of Debentures at Option of the Holder upon a Change of Control. (1) If a Change of Control occurs prior to the Maturity Date, the Corporation shall make an offer to each Holder the Debentureholders to: (a) purchase repurchase for cash all or a such portion of the Debentures of such Holder for a cash payment Holders equal to $1,000 principal amount (or an integral multiple thereof) which are Outstanding immediately prior to such Change of Control, at a price equal to 104% of the principal amount of the Debentures then Outstanding plus any accrued and unpaid interest thereon (the “Change of Control Repurchase Price”) on the Change of Control Repurchase Price (with respect to the Debentures so converted) Date (the "Repayment Offer"); or (b) convert if as a result of the Change of Control there is or will be a Successor Entity, subject to Applicable Law, exchange all or a such portion of the Debentures of such Holder into such number of Common Shares Holders equal to the $1,000 principal amount (or an integral multiple thereof) which are Outstanding immediately prior to such Change of Control Repurchase Price into debentures of the Successor Entity (the “Exchanged Debentures”), with respect each $1,000 principal amount (or an integral multiple thereof) being exchanged for unsecured convertible debentures of the Successor Entity with a principal amount of $1,000 with interest, payment and maturity provisions that are economically equivalent to the Debentures so converted) divided by the Conversion Price (the "Conversion “Exchange Offer", ” and together with the Repayment Offer, the "Change of Control Offer"), in each caseprovided that if 90% or more of the principal amount of all of the Debentures then Outstanding on the date of the Change of Control Notice are tendered for redemption pursuant to the Repayment Offer, the Exchange Offer shall be deemed to occur on be withdrawn and the Corporation shall have the right, at its option, at any time within 30 days of the Change of Control Repurchase Date, provided that in the event that a Debentureholder does not accept or exercise the Change Date of Control Offer in accordance with the terms of this Indenture, the Corporation will have the right, but not the obligation, in its sole discretion, to carry out either the purchase or conversion pursuant to the such Change of Control Offer, in its sole discretionto elect to redeem all, on but not less than all, of the remaining Debentures that are then Outstanding, at the Change of Control Repurchase DatePrice of such Repayment Offer. (2) As promptly as practicable following the date on which the Corporation announces the Change of Control, but in no event less than 30 days prior to the anticipated date of completion of a Change of Control, the Corporation shall mail a written notice of the Change of Control to the Trustee and to each Holder (and to beneficial Holders as required by Applicable Securities Laws) (the "Change of Control Notice"). The Change of Control Notice shall include the form of a Change of Control Repurchase Notice (as defined below) to be completed by the Holder and shall state the Change of Control Offer and the following: (i) the events causing such Change of Control; (ii) the date (or expected date) of such Change of Control; (iii) the last date by which the Change of Control Repurchase Notice must be delivered to elect an option pursuant to this Section 3.33.1; (iv) the Change of Control Repurchase Date; (v) the Change of Control Repurchase Price; (vi) the Holder’s right to require the Corporation to purchase all or a portion of the Debentures, Debentures or to convert all or a portion of the Debentures, exchange such Debentures for Exchanged Debenturess pursuant to the Change of Control Offer; (vii) the name and address of the Trustee; (viii) the procedures that the Holder must follow to exercise rights under this Section 3.3; (ix) the procedures that the Holder must follow to withdraw a Change of Control Repurchase Notice; (x) that, unless the Corporation fails to pay such Change of Control Repurchase Price, Debentures covered by any Change of Control Repurchase Notice will cease to be outstanding and interest will cease to accrue on and after the Change of Control Repurchase Date; (xi) that the in the event that such Holder does not accept or exercise the Change of Control Offer in accordance with the terms of this Indenture, the Corporation will have the right, but not the obligation, to carry out the repurchase or conversion pursuant to the Change of Control Offer, in its sole discretion, on the Change of Control Repurchase Date, and that Debentures so purchase or converted by the Corporation will cease to be outstanding and interest will cease to accrue on and after the Change of Control Purchase Date; and (xii) the CUSIP number of the Debentures. At the Corporation’s request, the Trustee shall give such Change of Control Notice in the Corporation’s name, at the Corporation’s expense, and within the notice period set out above; provided, that, in all cases, the text of such Change of Control Notice shall be prepared by the Corporation. (3) A Holder may exercise its rights specified in this Section 3.3 upon delivery of a written notice and which may be delivered by letter, overnight courier, hand delivery, electronic transmission or in any other written form and, in the case of Uncertificated Debentures, may be delivered electronically or by other means in accordance with the Depository’s applicable procedures) of the exercise of such rights (a "Change of Control Repurchase Notice") to the Corporation or the Trustee at any time prior to the close of business on the fifth Business Day prior to the Change of Control Repurchase Date, subject to extension to comply with Applicable Laws. (4) The Change of Control Repurchase Notice shall state: (i) the certificate number of the Debenture which the Holder will deliver to be purchased or exchanged (or, if the Debenture is in Uncertificated Debenture form, any other items required to comply with the applicable procedures), (ii) the portion of the principal amount of the Debenture which the Holder will deliver to be purchased or converted, in integral multiples of $1,000, and (iii) that such Debenture shall be purchased or converted as of the Change of Control Repurchase Date pursuant to the terms and conditions specified in the Debentures and in this Indenture. (5) The delivery of a Debenture for which a Change of Control Repurchase Notice has been timely delivered to the Trustee and not validly withdrawn prior to, on or after the Change of Control Repurchase Date (together with all necessary endorsements) at the office of the Trustee shall be a condition to the receipt by the Holder of the Change of Control Repurchase Price or Common Shares therefor. (6) The Corporation shall only be obliged to purchase or exchange, pursuant to this Section 3.3, a portion of a Debenture if the principal amount of such portion is $1,000 or an integral multiple of $1,000 (provisions of this Indenture that apply to the purchase of all of a Debenture also apply to the purchase of such portion of such Debenture). (7) Notwithstanding anything herein to the contrary, any Holder delivering to the Trustee the Change of Control Repurchase Notice contemplated by this Section 3.3 shall have the right to withdraw such Change of Control Repurchase Notice in whole or in a portion thereof that is a principal amount of $1,000 or in an integral multiple thereof, at any time prior to the close of business on the fifth Business Day prior to the Change of Control Repurchase Date by delivery of a written notice of withdrawal to the Trustee in accordance with the procedures set out in the Change of Control Notice or, if not set out therein, then in accordance with this Section 3.3(7). (8) The Trustee shall promptly notify the Corporation of the receipt by it of any Change of Control Repurchase Notice or written withdrawal thereof. (9) Anything herein to the contrary notwithstanding, in the case of Uncertificated Debentures, any Change of Control Repurchase Notice may be delivered or withdrawn and such securities may be surrendered or delivered for purchase in accordance with the applicable procedures of the Depository as in effect from time to time. (10) Upon receipt by the Trustee of a properly completed Change of Control Repurchase Notice from a Holder, the Holder of the Debenture in respect of which such Change of Control Repurchase Notice was given shall (unless such Change of Control Repurchase Notice is withdrawn as specified in Section 3.3(11)), thereafter be entitled to receive the Change of Control Repurchase Price or Common Shares thereof, as the case may be, with respect to such Debenture, subject to there being no Event of Default then occurring including a continuation thereof (other than a default in the payment of the Change of Control Repurchase Price). The Change of Control Repurchase Price shall be paid or the Common Shares issued to such Holder promptly following the later of (i) the Change of Control Repurchase Date and (ii) the time of delivery of such Debenture to the Trustee by the Holder thereof in the manner required by this Section 3.3. (11) A Change of Control Repurchase Notice may be withdrawn by means of a written notice (which may be delivered by mail, overnight courier, hand delivery, electronic transmission or in any other written form and, in the case of Uncertificated Debentures, may be delivered electronically or by other means in accordance with the applicable procedures of the Depository) of withdrawal delivered by the Holder to the Trustee at any time prior to the close of business on the fifth Business Day immediately prior to the Change of Control Repurchase Date, specifying (1) the principal amount of the Debenture or portion thereof (which must be a principal amount of $1,000 or an integral multiple of $1,000 in excess thereof), with respect to which such notice of withdrawal is being submitted, (2) if Certificated Debentures have been issued, the certificate number of the Debentures being withdrawn in whole or in withdrawable part (or if the Debentures are not Uncertificated Debentures, such written notice must comply with the applicable procedures of the Depository) and (3) the portion of the principal amount of the Debentures that will remain subject to the Change of Control Repurchase Notice, which portion must be a principal amount of $1,000 or an integral multiple thereof. (12) On or before 12:00 p.m. (Calgary time) on the Business Day prior to the applicable Change of Control Repurchase Date, the Corporation shall deposit with the Trustee an amount of money (in immediately available funds if deposited on or after such Change of Control Repurchase Date), sufficient to pay the aggregate Change of Control Repurchase Price of all the Debentures or portions thereof that are to be purchased as of such Change of Control Repurchase Date, and/or shall deposit with the Trustee or cause to be issued such number of Common Shares as is equal to the number of Common Shares to be issued to Holders on the Change of Control Repurchase Date pursuant to the conversion of the Debentures. (13) If a Trustee holds, in accordance with the terms hereof, money sufficient to pay the Change of Control Repurchase Price, and/or such number of Common Shares as is necessary to satisfy the conversion, of any Debenture for which a Change of Control Repurchase Notice has been tendered and not withdrawn in accordance with this Indenture then, on the Business Day following the applicable Change of Control Repurchase Date, such Debenture will cease to be outstanding, whether or not the Debenture is delivered to the Trustee, and interest shall cease to accrue, and the rights of the Holder in respect of the Debenture shall terminate (other than the right to receive the Change of Control Repurchase Price and/or Common Shares as aforesaid). The Corporation shall publicly announce the principal amount of Debentures purchased and/or converted on or as soon as practicable after the Change of Control Repurchase Date. (14) The Trustee will promptly return to the respective Holders thereof any Debentures with respect to which a Change of Control Repurchase Notice has been withdrawn in compliance with this Indenture and which has not been repurchased or converted by the Corporation in accordance with the terms of this Indenture. (15) If a Change of Control Repurchase Date falls after an Payment Record Date and on or before the related Interest Payment Date, then interest on the Debentures payable on such Interest Payment Date will be payable to the Holders in whose names the Debentures are registered at the close of business on such Payment Record Date.;

Appears in 1 contract

Samples: Indenture

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