Repurchase of Notes at Option of the Holder upon Change of Control. (a) If there shall have occurred a Change of Control, all or any portion of the Notes of any Holder equal to $1,000 or a whole multiple of $1,000, shall be repurchased by the Issuer, at the option of such Holder, at a repurchase price equal to 100% of the principal amount of the Notes to be repurchased, together with interest (including Liquidated Damages) accrued and unpaid to, but excluding, the repurchase date (the "Change of Control Repurchase Price"), on the date (the "Change of Control Repurchase Date") that is 45 days after the date the Issuer delivered the notice required under Section 3.01(c) (or if such 45th day is not a Business Day, the next succeeding Business Day); provided, however, that installments of interest on Notes the Stated Maturity of which is prior to or on the Change of Control Repurchase Date shall be payable to the Holders of such Notes, or one or more predecessor Notes, registered as such on the relevant Regular Record Date according to their terms. Whenever in this Indenture (including Sections 2.01, 6.01(a) and 6.07 hereof) or Exhibit A annexed hereto there is a reference, in any context, to the principal of any Note as of any time, such reference shall be deemed to include reference to the Change of Control Repurchase Price payable in respect to such Note to the extent that such Change of Control Repurchase Price is, was or would be so payable at such time, and express mention of the Change of Control Repurchase Price in any provision of this Indenture shall not be construed as excluding the Change of Control Repurchase Price in those provisions of this Indenture when such express mention is not made. A " Change of Control" of the Issuer shall be deemed to have occurred at such time as either of the following events shall occur: (i) any "person" or "group" (as such terms are used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, as amended (the "Exchange Act")), acquires the beneficial ownership (as defined in Rules 13d-3 and 13d-5 under the Exchange Act, except that a Person shall be deemed to have "beneficial ownership" of all securities that such Person has the right to acquire, whether such right is exercisable immediately or only after the passage of time), directly or indirectly, through a purchase, merger or other acquisition transaction, of 50% or more of the total voting power of the Issuer's total outstanding Voting Stock other than an acquisition by the Issuer, any of its Subsidiaries or any of its employee benefit plans; (ii) the Issuer consolidates with, or merges with or into, another Person or conveys, transfers, leases or otherwise disposes of all or substantially all of its assets to any Person, or any Person consolidates with or merges with or into the Issuer other than: (A) any transaction (1) that does not result in any reclassification, conversion, exchange or cancellation of outstanding shares of the Issuer's Capital Stock and (2) pursuant to which holders of the Issuer's Capital Stock immediately prior to such transaction have the entitlement to exercise, directly or indirectly, 50% or more of the total voting power of all shares of the Issuer's Capital Stock entitled to vote generally in the election of directors of the continuing or surviving Person immediately after the transaction; and (B) any merger solely for the purpose of changing the Issuer's jurisdiction of incorporation and resulting in a reclassification, conversion or exchange of outstanding shares of Common Stock solely into shares of common stock of the surviving entity; (iii) during any consecutive two-year period, individuals who at the beginning of that two-year period constituted the Issuer's board of directors (together with any new directors whose election to such board of directors, or whose nomination for election by the Issuer's stockholders, was approved by a vote of a majority of the directors then still in office who were either directors at the beginning of such period or whose election or nomination for election was previously so approved) cease for any reason to constitute a majority the Issuer's board of directors then in office; or (iv) the Issuer's stockholders pass a special resolution approving a plan of liquidation or dissolution and no additional approvals of the Issuer's stockholders are required under applicable law to cause a liquidation or dissolution. (b) Prior to or on the 30th day after the occurrence of a Change of Control, the Issuer, or, at the written request and expense of the Issuer prior to or on the 30th day after such occurrence, the Trustee, shall give to all Noteholders, in the manner provided in Section 12.02 hereof, notice of the occurrence of the Change of Control and of the repurchase right set forth herein arising as a result thereof. The Issuer shall also deliver a copy of such notice of a repurchase right to the Trustee. The notice shall include a form of Change of Control Repurchase Notice (as defined in Section 3.01(c)) to be completed by the Noteholder and shall state: (1) briefly, the events causing a Change of Control and the date of such Change of Control; (2) the date by which the Change of Control Repurchase Notice pursuant to this Section 3.01 must be given; (3) the Change of Control Repurchase Date; (4) the Change of Control Repurchase Price; (5) the name and address of the Paying Agent and the Conversion Agent; (6) the Conversion Price and any adjustments thereto; (7) that Notes as to which a Change of Control Repurchase Notice has been given may be converted pursuant to Article 10 hereof only if the Change of Control Repurchase Notice has been withdrawn in accordance with the terms of this Indenture; (8) that Notes must be surrendered to the Paying Agent to collect payment; (9) that the Change of Control Repurchase Price for any Note as to which a Change of Control Repurchase Notice has been duly given and not withdrawn will be paid promptly following the later of the Change of Control Repurchase Date and the time of surrender of such Note as described in (8) above; (10) briefly, the procedures the Holder must follow to exercise rights under this Section 3.01; (11) briefly, the conversion rights of the Notes; (12) the procedures for withdrawing a Change of Control Repurchase Notice; (13) that, unless the Issuer defaults in making payment of such Change of Control Repurchase Price, interest on Notes submitted for repurchase will cease to accrue on and after the Change of Control Repurchase Date; and (14) the CUSIP number of the Notes. (c) A Holder may exercise its rights specified in Section 3.01(a) hereof upon delivery of a written notice of purchase (a "Change of Control Repurchase Notice"), substantially in the form as set forth on the reverse of the Notes, to the Paying Agent at any time prior to the close of business on the Business Day immediately preceding the Change of Control Repurchase Date, stating: (1) the certificate number of the Note which the Holder will deliver to be purchased; (2) the portion of the principal amount of the Note which the Holder will deliver to be purchased, which portion must be $1,000 or an integral multiple thereof; (3) that such Note shall be purchased pursuant to the terms and conditions specified in paragraph 6 of the Notes. The delivery of such Note to the Paying Agent prior to, on or after the Change of Control Repurchase Date (together with all necessary endorsements) at the offices of the Paying Agent shall be a condition to the receipt by the Holder of the Change of Control Repurchase Price therefor; provided, however, that such Change of Control Repurchase Price shall be so paid pursuant to this Section 3.01 only if the Note so delivered to the Paying Agent shall conform in all respects to the description thereof set forth in the related Change of Control Repurchase Notice. The Issuer shall purchase from the Holder thereof, pursuant to this Section 3.01, a portion of a Note 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 Note also apply to the purchase of such portion of such Note. Any purchase by the Issuer contemplated pursuant to the provisions of this Section 3.01 shall be consummated by the delivery of the consideration to be received by the Holder on the later of the Change of Control Repurchase Date and the time of delivery of the Note to the Paying Agent in accordance with this Section 3.01.
Appears in 2 contracts
Samples: Indenture (Xcel Energy Inc), Indenture (Xcel Energy Inc)
Repurchase of Notes at Option of the Holder upon Change of Control. (a) If there shall have occurred a Change of Control, all or any portion of the Notes of any Holder equal to $1,000 or a whole multiple of $1,000, not previously called for redemption, shall be repurchased by the IssuerCompany, at the option of such Holder, at a repurchase price equal to 100% of the principal amount of the Notes to be repurchased, together with interest (including Liquidated Damages) accrued and unpaid to, but excluding, the repurchase date (such amount payable being, the "Change of Control Repurchase Price"), on the date that is no later than 30 days after notice of the occurrence of a Change of Control is given by the Company or the Trustee (such repurchase date being, the "Change of Control Repurchase Date") that is 45 days after the date the Issuer delivered the notice required under in accordance with Section 3.01(c) (or if such 45th day is not a Business Day, the next succeeding Business Day3.10(c); providedPROVIDED, howeverHOWEVER, that installments of interest on Notes the whose Stated Maturity of which is prior to or on the Change of Control Repurchase Date shall be payable to the Holders of such Notes, or one or more predecessor Notes, registered as such on the relevant Regular Record Date according to their terms. Such right to require the repurchase of the Notes shall not continue after a discharge of the Company from its obligations with respect to the Notes in accordance with Article 8 hereof, unless a Change of Control shall have occurred prior to such discharge. Subject to the fulfillment by the Company of the conditions set forth in Section 3.10(b) hereof, the Company may elect to pay the Change of Control Repurchase Price by delivering the number of shares of Common Stock equal to (i) the Change of Control Repurchase Price divided by (ii) 95% of the average of the Closing Prices per share of Common Stock for the five consecutive Trading Days ending on the third Trading Day prior to the Change of Control Repurchase Date. Whenever in this Indenture (including Sections 2.01, 6.01(a) and 6.07 hereof) in the terms of the Notes attached hereto as Exhibit A-1 or Exhibit A annexed hereto A-2) there is a reference, in any context, to the principal of any Note as of any time, such reference shall be deemed to include reference to the Change of Control Repurchase Price payable in respect to such Note to the extent that such Change of Control Repurchase Price is, was or would be so payable at such time, and express mention of the Change of Control Repurchase Price in any provision of this Indenture shall not be construed as excluding the Change of Control Repurchase Price in those provisions of this Indenture when such express mention is not made.
; PROVIDED, HOWEVER, that, for the purposes of Article 11 hereof, such reference shall be deemed to include reference to the Change of Control Repurchase Price only to the extent the Change of Control Repurchase Price is payable in cash. A " "Change of Control" of the Issuer Company shall be deemed to have occurred at such time as either any of the following events shall occur:
(i) the acquisition by any person, including any syndicate or group deemed to be a "person" or "group" (as such terms are used in Sections 13(d) and 14(dunder Section 13(d)(3) of the Securities Exchange Act of 1934, as amended (the "Exchange Act")), acquires the beneficial ownership (as defined in Rules 13d-3 and 13d-5 under the Exchange Act, except that a Person shall be deemed to have "of beneficial ownership" of all securities that such Person has the right to acquire, whether such right is exercisable immediately or only after the passage of time), directly or indirectly, through a purchase, merger or other acquisition transaction, transaction or series of -30- transactions of shares of the Capital Stock of the Company entitling that person to exercise 50% or more of the total voting power of the Issuer's total outstanding Voting all shares of Capital Stock entitled to vote generally in elections of directors, other than an any acquisition by the IssuerCompany, any of its Subsidiaries subsidiaries or any of its the employee benefit plans;
(ii) any consolidation or merger of the Issuer consolidates withCompany with or into any other person, any merger of another person into the Company, or merges with any conveyance, transfer, sale, lease or into, another Person or conveys, transfers, leases or otherwise disposes other disposition of all or substantially all of its the Company's properties and assets to any Personanother person, or any Person consolidates with or merges with or into the Issuer other than:
(A) any transaction (1x) that does not result in any reclassification, conversion, exchange or cancellation of outstanding shares of the Issuer's Capital Stock and (2y) pursuant to which holders of the Issuer's Capital Stock immediately prior to such the transaction have the entitlement to exercise, directly or indirectly, 50% or more of the total voting power of all shares of the Issuer's Capital Stock entitled to vote generally in the election of directors of the continuing or surviving Person person immediately after the transaction; andor
(B) any merger solely for the purpose of changing the IssuerCompany's jurisdiction of incorporation and resulting in a reclassification, conversion or exchange of outstanding shares of Common Stock solely into shares of common stock Common Stock of the surviving entity;
(iii) during any consecutive two-year period, individuals who at the beginning of that two-year period constituted the Issuer's board Board of directors Directors (together with any new directors whose election to such board the Board of directorsDirectors, or whose nomination for election by the Issuer's stockholders, was approved by a vote of a majority of the directors then still in office who were either directors at the beginning of such period or whose election or nomination for election was previously so approved) cease for any reason to constitute a majority of the Issuer's board of directors then in office; or
(iv) any liquidation or dissolution of the Issuer's Company or the stockholders of the Company shall pass a special resolution approving a plan of liquidation or dissolution and no additional approvals of the Issuer's stockholders are required under applicable law to cause a liquidation or dissolutionCompany.
(b) Prior The following are conditions to the Company's election to pay for the Change of Control Repurchase Price in shares of Common Stock:
(i) The shares of Common Stock to be issued upon repurchase of Notes hereunder:
(A) shall not require registration under any federal securities law before such shares may be freely transferable without being subject to any transfer restrictions under the Securities Act upon repurchase or, if such registration is required, such registration shall be completed and shall become effective prior to the Change of Control Repurchase Date; and
(B) shall not require registration with, or approval of, any governmental authority under any state law or any other federal law before shares may be validly issued or delivered upon repurchase or if such registration is required or such approval must be obtained, such registration shall be completed or such approval shall be obtained prior to the Change of Control Repurchase Date.
(ii) The shares of Common Stock to be issued upon repurchase of Notes hereunder are, or shall have been, approved for listing on the Nasdaq National Market or the New York Stock Exchange or listed on another national securities exchange, in any case, prior to the Change of Control Repurchase Date.
(iii) All shares of Common Stock which may be issued upon repurchase of Notes will be issued out of the Company's authorized but unissued Common Stock or Common Stock held in treasury and will, upon issue, be duly and validly issued and fully paid and nonassessable and free of any preemptive or similar rights.
(iv) If any of the conditions set forth in clauses (i) through (iii) of this Section 3.10(b) are not satisfied in accordance with the terms thereof, the Change of Control Repurchase Price shall be paid by the Company only in cash.
(c) Unless the Company shall have theretofore called for redemption all of the outstanding Notes, on or prior to the 30th day after the occurrence of a Change of Control, the IssuerCompany, or, at the written request and expense of the Issuer prior to or on the 30th day after such occurrenceCompany, the Trustee, shall give to all Noteholders, in the manner provided in Section 12.02 13.02 hereof, notice of the occurrence of the Change of Control and of the repurchase right set forth herein arising as a result thereof. If the Trustee is requested to give such notice, the Company will provide the written request at least one (1) day prior. The Issuer Company shall also deliver a copy of such notice of a repurchase right to the Trustee. The notice shall include a form of Change of Control Repurchase Notice (as defined in Section 3.01(c3.10(d)) to be completed by the Noteholder and shall state:
(1) briefly, the events causing a Change of Control and the date of such Change of Control;
(2) the date by which the Change of Control Repurchase Notice pursuant to this Section 3.01 3.10 must be given;
(3) the Change of Control Repurchase Date;
(4) the Change of Control Repurchase PricePrice and the form of payment;
(5) the name and address of the Paying Agent and the Conversion Agent;
(6) the Conversion Price then in effect and any adjustments thereto;
(7) that Notes as to which a Change of Control Repurchase Notice has been given may be converted pursuant to Article 10 hereof only if the Change of Control Repurchase Notice Notice, if duly given, has been withdrawn in accordance with the terms of this Indenture;
(8) that Notes must be surrendered to the Paying Agent to collect payment;
(9) that the Change of Control Repurchase Price for any Note as to which a Change of Control Repurchase Notice has been duly given and not withdrawn will be paid promptly following on the later of the Change of Control Repurchase Date and the time of surrender of such Note as described in (8) aboveabove and Section 3.10(d) below;
(10) briefly, the procedures the Holder must follow to exercise rights under this Section 3.013.10;
(11) briefly, the conversion rights of the Notes;
(12) the procedures for withdrawing a Change of Control Repurchase Notice;
(13) that, unless the Issuer Company defaults in making payment of such Change of Control Repurchase Price, interest on Notes submitted for repurchase which a Change of Control Repurchase Notice has been delivered will cease to accrue on and after the Change of Control Repurchase Date; and
(14) the CUSIP number of the Notes.
(cd) A Holder may exercise its rights specified in Section 3.01(a3.10(a) hereof upon delivery of a written notice of purchase (a "Change of Control Repurchase Notice"), substantially in the form as set forth on the reverse of the Notes, ) to the Paying Agent at any time prior to the close of business on the Business Day immediately preceding the Change of Control Repurchase Date, stating:
(1) the certificate number of the Note which the Holder will deliver to be purchasedrepurchased;
(2) the portion of the principal amount of the Note which the Holder will deliver to be purchasedrepurchased, which portion must be $1,000 or an integral multiple thereof;; and
(3) that such Note shall be purchased repurchased pursuant to the terms and conditions specified in paragraph 6 7 of the Notes. The delivery by the Holder of such the Note to be repurchased to the Paying Agent prior toAgent, on or after the Change of Control Repurchase Date (together with all necessary endorsements) , at the offices of the Paying Agent shall be a condition to the receipt by the Holder of the Change of Control Repurchase Price therefor; provided, however, that such Change of Control Repurchase Price shall be so paid pursuant to this Section 3.01 3.10 only if the Note so delivered to the Paying Agent shall conform in all respects to the description thereof set forth in the related Change of Control Repurchase Notice. The Issuer Company shall purchase from the Holder thereof, pursuant to this Section 3.013.10, a portion of a Note if the principal amount of such portion is $1,000 or an integral multiple -33- of $1,000. Provisions of this Indenture that apply to the purchase of all of a Note also apply to the purchase of such portion of such Note. Any purchase by the Issuer Company contemplated pursuant to the provisions of this Section 3.01 3.10 shall be consummated by the delivery of the consideration to be received by the Holder on promptly following the later of the Change of Control Repurchase Date and the time of delivery of the Note to the Paying Agent in accordance with this Section 3.013.10. Notwithstanding anything herein to the contrary, any Holder delivering to the Paying Agent the Change of Control Repurchase Notice contemplated by this Section 3.10(d) shall have the right to withdraw such Change of Control Repurchase Notice at any time prior to the close of business on the Change of Control Repurchase Date by delivery of a written notice of withdrawal to the Paying Agent in accordance with Section 3.11. The Paying Agent shall promptly notify the Company of the receipt by it of any Change of Control Repurchase Notice or written withdrawal thereof.
Appears in 1 contract
Samples: Indenture (Osi Pharmaceuticals Inc)
Repurchase of Notes at Option of the Holder upon Change of Control. (a) If there shall have occurred a Change of Control, all or any portion of the Notes of any Holder equal to $1,000 or a whole multiple of $1,000, shall be repurchased by the IssuerCompany, at the option of such Holder, at a repurchase price equal to 100% of the principal amount of the Notes to be repurchased, together with interest (including Liquidated Damages) accrued and unpaid to, but excluding, the repurchase date (the "Change of Control Repurchase PriceCHANGE OF CONTROL REPURCHASE PRICE"), on the date (the "Change of Control Repurchase DateCHANGE OF CONTROL REPURCHASE DATE") that is 45 thirty (30) days after the date the Issuer Company delivered the notice required under Section 3.01(c3.02(c) (or if such 45th 30th day is not a Business Day, the next succeeding Business Day); provided, however, that installments of interest on Notes the Stated Maturity of which is prior to or on the Change of Control Repurchase Date shall be payable to the Holders of such Notes, or one or more predecessor Notes, registered as such on the relevant Regular Record Date according to their terms. Subject to the fulfillment by the Company of the conditions set forth in Section 3.02(b) hereof, the Company may elect to pay the Change of Control Repurchase Price in Common Stock by delivering the number of shares of Common Stock equal to (i) the Change of Control Repurchase Price divided by (ii) 95% of the average of the Closing Prices per share of the applicable Common Stock for the five (5) consecutive Trading Days immediately preceding and including the third Trading Day prior to the Change of Control Repurchase Date. Whenever in this Indenture (including Sections 2.01, 6.01(a) and 6.07 hereof) or Exhibit A annexed hereto there is a reference, in any context, to the principal of any Note as of any time, such reference shall be deemed to include reference to the Change of Control Repurchase Price payable in respect to such Note to the extent that such Change of Control Repurchase Price is, was or would be so payable at such time, and express mention of the Change of Control Repurchase Price in any provision of this Indenture shall not be construed as excluding the Change of Control Repurchase Price in those provisions of this Indenture when such express mention is not made.
. A " Change of Control"CHANGE OF CONTROL" of the Issuer Company shall be deemed to have occurred at such time as either of the following events shall occur:
(i) any "person" or "group" (as such terms are used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, as amended (the "Exchange ActEXCHANGE ACT")), acquires the beneficial ownership (as defined in Rules 13d-3 and 13d-5 under the Exchange Act, except that a Person shall be deemed to have "beneficial ownership" of all securities that such Person has the right to acquire, whether such right is exercisable immediately or only after the passage of time), directly or indirectly, through a purchase, merger or other acquisition transaction, of 50% or more of the total voting power of the IssuerCompany's total outstanding Voting Stock other than an acquisition by the IssuerCompany, any of its Subsidiaries or any of its employee benefit plans;
(ii) the Issuer Company consolidates with, or merges with or into, another Person or conveys, transfers, leases or otherwise disposes in one or a series of related transactions of all or substantially all of its assets to any Person, or any Person consolidates with or merges with or into the Issuer Company other than:
(A) any transaction (1) that does not result in any reclassification, conversion, exchange or cancellation of outstanding shares of the IssuerCompany's Capital Stock and (2) pursuant to which holders of the IssuerCompany's Capital Stock immediately prior to such transaction have the entitlement to exercise, directly or indirectly, 50% or more of the total voting power of all shares of the IssuerCompany's Capital Stock entitled to vote generally in the election of directors of the continuing or surviving Person person immediately after the transaction; and
(B) any merger solely for the purpose of changing the IssuerCompany's jurisdiction of incorporation and resulting in a reclassification, conversion or exchange of outstanding shares of Common Stock solely into shares of common stock of the surviving entity;
(iii) during any consecutive two-year period, individuals who at the beginning of that two-year period constituted the IssuerCompany's board of directors (together with any new directors whose election to such board of directors, or whose nomination for election by the IssuerCompany's stockholders, was approved by a vote of a majority of the directors then still in office who were either directors at the beginning of such period or whose election or nomination for election was previously so approved) cease for any reason to constitute a majority the IssuerCompany's board of directors then in office; or;
(iv) the IssuerCompany's stockholders pass a special resolution approving a plan of liquidation or dissolution and no additional approvals of the IssuerCompany's stockholders are required under applicable law to cause a liquidation or dissolution; or
(v) the Common Stock (or other common stock into which the Notes are then convertible) is neither listed for trading on the New York Stock Exchange nor approved for trading on the Nasdaq National Market. Notwithstanding the foregoing, a "CHANGE OF CONTROL" shall not be deemed to have occurred if:
(i) the Closing Price per share of the applicable Common Stock for any five (5) Trading Days within the period of ten (10) consecutive Trading Days immediately after the later of the Change of Control (in the case of a Change of Control under subsection (i) of the definition of "Change of Control") or the period of ten (10) consecutive Trading Days ending immediately before the Change of Control (in the case of a Change of Control under subsection (ii) of the definition of "Change of Control") shall equal or exceed 110% of the Conversion Price of the Notes in effect on the date prior to the Change of Control or the public announcement of the Change of Control, as applicable; or
(ii) all of the consideration (excluding cash payments for fractional shares and cash payments made pursuant to dissenters' appraisal rights) in the transaction or transactions constituting a Change of Control under subsection (i) or (ii) of the definition of "Change of Control" consists of shares of common stock that are, or upon issuance will be, traded on the New York Stock Exchange or the American Stock Exchange or quoted on the Nasdaq National Market and as a result of such transaction or transactions the Notes become convertible solely into such common stock.
(b) The following are conditions to the Company's election to pay for the Change of Control Repurchase Price in Common Stock; or
(i) The shares of Common Stock to be issued upon repurchase of Notes hereunder:
(A) shall not require registration under any federal securities law before such shares may be freely transferable without being subject to any transfer restrictions under the Securities Act upon repurchase or, if such registration is required, such registration shall be completed and shall become effective prior to the Change of Control Repurchase Date; and
(B) shall not require registration with, or approval of, any governmental authority under any state law or any other federal law before shares may be validly issued or delivered upon repurchase or if such registration is required or such approval must be obtained, such registration shall be completed or such approval shall be obtained prior to the Change of Control Repurchase Date.
(ii) The shares of Common Stock to be listed upon repurchase of Notes hereunder are, or shall have been, approved for listing on the Nasdaq National Market or the New York Stock Exchange or listed on another national securities exchange, in any case, prior to the Change of Control Repurchase Date.
(iii) All shares of Common Stock which may be issued upon repurchase of Notes will be issued out of the Company's authorized but unissued Common Stock and will, upon issue, be duly and validly issued and fully paid and nonassessable and free of any preemptive or similar rights.
(iv) If any of the conditions set forth in clauses (i) through (iii) of this Section 3.02(b) are not satisfied in accordance with the terms thereof, the Change of Control Repurchase Price shall be paid by the Company only in cash.
(c) Prior to or on the 30th 15th day after the occurrence of a Change of Control, the IssuerCompany, or, at the written request and expense of the Issuer Company prior to or on the 30th 15th day after such occurrence, the Trustee, shall give to all Noteholders, in the manner provided in Section 12.02 11.02 hereof, notice of the occurrence of the Change of Control and of the repurchase right set forth herein arising as a result thereof. The Issuer Company shall also deliver a copy of such notice of a repurchase right to the Trustee. Except as a result of its failure to fulfill the conditions set forth in Section 3.02(b), the Company may not change the form of consideration to be paid for the Notes under this Article 3 once it has delivered its Change of Control Repurchase Notice. The notice shall include a form of Change of Control Repurchase Notice (as defined in Section 3.01(c3.02(d)) to be completed by the Noteholder and shall state:
(1) briefly, the events causing a Change of Control and the date of such Change of Control;
(2) the date by which the Change of Control Repurchase Notice pursuant to this Section 3.01 3.02 must be given;
(3) the Change of Control Repurchase Date;
(4) the Change of Control Repurchase PricePrice and whether the Change of Control Repurchase Price will be payable in cash or Common Stock;
(5) the name and address of the Paying Agent and the Conversion Agent;
(6) the Conversion Price and any adjustments thereto;
(7) that Notes as to which a Change of Control Repurchase Notice has been given may be converted pursuant to Article 10 hereof only if the Change of Control Repurchase Notice has been withdrawn in accordance with the terms of this Indenture;
(8) that Notes must be surrendered to the Paying Agent to collect payment;
(9) that the Change of Control Repurchase Price for any Note as to which a Change of Control Repurchase Notice has been duly given and not withdrawn will be paid promptly following the later of the Change of Control Repurchase Date and the time of surrender of such Note as described in (8) above;
(10) briefly, the procedures the Holder must follow to exercise rights under this Section 3.013.02;
(11) briefly, the conversion rights of the Notes;
(12) the procedures for withdrawing a Change of Control Repurchase Notice;
(13) that, unless the Issuer Company defaults in making payment of such Change of Control Repurchase Price, interest on Notes submitted for repurchase will cease to accrue on and after the Change of Control Repurchase Date; and
(14) the CUSIP number of the Notes.
(cd) A Holder may exercise its rights specified in Section 3.01(a3.02(a) hereof upon delivery of a written notice of purchase (a "Change of Control Repurchase NoticeCHANGE OF CONTROL REPURCHASE NOTICE"), substantially in the form as set forth on the reverse of the Notes, to the Paying Agent at any time prior to the close of business on the Business Day immediately preceding the Change of Control Repurchase Date, stating:
(1) the certificate number of the Note which the Holder will deliver to be purchased;
(2) the portion of the principal amount of the Note which the Holder will deliver to be purchased, which portion must be $1,000 or an integral multiple thereof;; and
(3) that such Note shall be purchased pursuant to the terms and conditions specified in paragraph 6 of the Notes. The delivery of such Note to the Paying Agent prior to, on or after the Change of Control Repurchase Date (together with all necessary endorsements) at the offices of the Paying Agent shall be a condition to the receipt by the Holder of the Change of Control Repurchase Price therefor; provided, however, that such Change of Control Repurchase Price shall be so paid pursuant to this Section 3.01 3.02 only if the Note so delivered to the Paying Agent shall conform in all respects to the description thereof set forth in the related Change of Control Repurchase Notice. The Issuer Company shall purchase from the Holder thereof, pursuant to this Section 3.013.02, a portion of a Note 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 Note also apply to the purchase of such portion of such Note. Any purchase by the Issuer contemplated pursuant to the provisions of this Section 3.01 shall be consummated by the delivery of the consideration to be received by the Holder on the later of the Change of Control Repurchase Date and the time of delivery of the Note to the Paying Agent in accordance with this Section 3.01.
Appears in 1 contract
Samples: Indenture (Wabash National Corp /De)
Repurchase of Notes at Option of the Holder upon Change of Control. (a) If there shall have occurred a Change of Control, all or any portion of the Notes of any Holder equal to $1,000 or a whole multiple of $1,000, shall be repurchased by the IssuerCompany, at the option of such Holder, at a repurchase price equal to 100% of the principal amount of the Notes to be repurchased, together with interest (including Liquidated Damages) accrued and unpaid to, but excluding, the repurchase date (the "“Change of Control Repurchase Price"”), on the date (the "“Change of Control Repurchase Date"”) that is 45 days after the date the Issuer Company delivered the notice required under Section 3.01(c3.02(c) (or if such 45th day is not a Business Day, the next succeeding Business Day); provided, however, that installments of interest on Notes the Stated Maturity of which is prior to or on the Change of Control Repurchase Date shall be payable to the Holders of such Notes, or one or more predecessor Notes, registered as such on the relevant Regular Record Date according to their terms. Subject to the fulfillment by the Company of the conditions set forth in Section 3.02(b) hereof, the Company may elect to pay the Change of Control Repurchase Price in Common Stock by delivering the number of shares of Common Stock equal to (i) the Change of Control Repurchase Price divided by (ii) 95% of the average of the Closing Prices per share of the applicable Common Stock for the five consecutive Trading Days immediately preceding and including the third Trading Day prior to the Change of Control Repurchase Date. Whenever in this Indenture (including Sections 2.01, 6.01(a) and 6.07 hereof) or Exhibit A annexed hereto there is a reference, in any context, to the principal of any Note as of any time, such reference shall be deemed to include reference to the Change of Control Repurchase Price payable in respect to such Note to the extent that such Change of Control Repurchase Price is, was or would be so payable at such time, and express mention of the Change of Control Repurchase Price in any provision of this Indenture shall not be construed as excluding the Change of Control Repurchase Price in those provisions of this Indenture when such express mention is not made.
. A " “Change of Control" ” of the Issuer Company shall be deemed to have occurred at such time as either of the following events shall occur:
(i) any "“person" ” or "“group" ” (as such terms are used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, as amended (the "“Exchange Act"”)), acquires the beneficial ownership (as defined in Rules 13d-3 and 13d-5 under the Exchange Act, except that a Person shall be deemed to have "“beneficial ownership" ” of all securities that such Person has the right to acquire, whether such right is exercisable immediately or only after the passage of time), directly or indirectly, through a purchase, merger or other acquisition transaction, of 50% or more of the total voting power of the Issuer's Company’s total outstanding Voting Stock other than an acquisition by the IssuerCompany, any of its Subsidiaries or any of its employee benefit plans;
(ii) the Issuer Company consolidates with, or merges with or into, another Person or conveys, transfers, leases or otherwise disposes of all or substantially all of its assets to any Person, or any Person consolidates with or merges with or into the Issuer Company other than:
(A) any transaction (1) that does not result in any reclassification, conversion, exchange or cancellation of outstanding shares of the Issuer's Company’s Capital Stock and (2) pursuant to which holders of the Issuer's Company’s Capital Stock immediately prior to such transaction have the entitlement to exercise, directly or indirectly, 50% or more of the total voting power of all shares of the Issuer's Company’s Capital Stock entitled to vote generally in the election of directors of the continuing or surviving Person person immediately after the transaction; and
(B) any merger solely for the purpose of changing the Issuer's Company’s jurisdiction of incorporation and resulting in a reclassification, conversion or exchange of outstanding shares of Common Stock solely into shares of common stock of the surviving entity;
(iii) during any consecutive two-year period, individuals who at the beginning of that two-year period constituted the Issuer's Company’s board of directors (together with any new directors whose election to such board of directors, or whose nomination for election by the Issuer's Company’s stockholders, was approved by a vote of a majority of the directors then still in office who were either directors at the beginning of such period or whose election or nomination for election was previously so approved) cease for any reason to constitute a majority the Issuer's Company’s board of directors then in office; or
(iv) the Issuer's Company’s stockholders pass a special resolution approving a plan of liquidation or dissolution and no additional approvals of the Issuer's Company’s stockholders are required under applicable law to cause a liquidation or dissolution.
(b) The following are conditions to the Company’s election to pay for the Change of Control Repurchase Price in Common Stock:
(i) The shares of Common Stock to be issued upon repurchase of Notes hereunder:
(A) shall not require registration under any federal securities law before such shares may be freely transferable without being subject to any transfer restrictions under the Securities Act upon repurchase or, if such registration is required, such registration shall be completed and shall become effective prior to the Change of Control Repurchase Date; and
(B) shall not require registration with, or approval of, any governmental authority under any state law or any other federal law before shares may be validly issued or delivered upon repurchase or if such registration is required or such approval must be obtained, such registration shall be completed or such approval shall be obtained prior to the Change of Control Repurchase Date.
(ii) The shares of Common Stock to be listed upon repurchase of Notes hereunder are, or shall have been, approved for listing on the Nasdaq National Market or the New York Stock Exchange or listed on another national securities exchange, in any case, prior to the Change of Control Repurchase Date.
(iii) All shares of Common Stock which may be issued upon repurchase of Notes will be issued out of the Company’s authorized but unissued Common Stock and will, upon issue, be duly and validly issued and fully paid and nonassessable and free of any preemptive or similar rights.
(iv) If any of the conditions set forth in clauses (i) through (iii) of this Section 3.02(b) are not satisfied in accordance with the terms thereof, the Change of Control Repurchase Price shall be paid by the Company only in cash.
(c) Prior to or on the 30th day after the occurrence of a Change of Control, the IssuerCompany, or, at the written request and expense of the Issuer Company prior to or on the 30th day after such occurrence, the Trustee, shall give to all Noteholders, in the manner provided in Section 12.02 hereof, notice of the occurrence of the Change of Control and of the repurchase right set forth herein arising as a result thereof. The Issuer Company shall also deliver a copy of such notice of a repurchase right to the Trustee. The notice shall include a form of Change of Control Repurchase Notice (as defined in Section 3.01(c3.02(d)) to be completed by the Noteholder and shall state:
(1) briefly, the events causing a Change of Control and the date of such Change of Control;
(2) the date by which the Change of Control Repurchase Notice pursuant to this Section 3.01 3.02 must be given;
(3) the Change of Control Repurchase Date;
(4) the Change of Control Repurchase PricePrice and whether the Change of Control Repurchase Price will be payable in cash or Common Stock;
(5) the name and address of the Paying Agent and the Conversion Agent;
(6) the Conversion Price and any adjustments thereto;
(7) that Notes as to which a Change of Control Repurchase Notice has been given may be converted pursuant to Article 10 hereof only if the Change of Control Repurchase Notice has been withdrawn in accordance with the terms of this Indenture;
(8) that Notes must be surrendered to the Paying Agent to collect payment;
(9) that the Change of Control Repurchase Price for any Note as to which a Change of Control Repurchase Notice has been duly given and not withdrawn will be paid promptly following the later of the Change of Control Repurchase Date and the time of surrender of such Note as described in (8) above;
(10) briefly, the procedures the Holder must follow to exercise rights under this Section 3.013.02;
(11) briefly, the conversion rights of the Notes;
(12) the procedures for withdrawing a Change of Control Repurchase Notice;
(13) that, unless the Issuer Company defaults in making payment of such Change of Control Repurchase Price, interest on Notes submitted for repurchase will cease to accrue on and after the Change of Control Repurchase Date; and
(14) the CUSIP number of the Notes.
(cd) A Holder may exercise its rights specified in Section 3.01(a3.02(a) hereof upon delivery of a written notice of purchase (a "“Change of Control Repurchase Notice"”), substantially in the form as set forth on the reverse of the Notes, to the Paying Agent at any time prior to the close of business on the Business Day immediately preceding the Change of Control Repurchase Date, stating:
(1) the certificate number of the Note which the Holder will deliver to be purchased;
(2) the portion of the principal amount of the Note which the Holder will deliver to be purchased, which portion must be $1,000 or an integral multiple thereof;; and
(3) that such Note shall be purchased pursuant to the terms and conditions specified in paragraph 6 of the Notes. The delivery of such Note to the Paying Agent prior to, on or after the Change of Control Repurchase Date (together with all necessary endorsements) at the offices of the Paying Agent shall be a condition to the receipt by the Holder of the Change of Control Repurchase Price therefor; provided, however, that such Change of Control Repurchase Price shall be so paid pursuant to this Section 3.01 3.02 only if the Note so delivered to the Paying Agent shall conform in all respects to the description thereof set forth in the related Change of Control Repurchase Notice. The Issuer Company shall purchase from the Holder thereof, pursuant to this Section 3.013.02, a portion of a Note 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 Note also apply to the purchase of such portion of such Note. Any purchase by the Issuer Company contemplated pursuant to the provisions of this Section 3.01 3.02 shall be consummated by the delivery of the consideration to be received by the Holder on promptly following the later of the Change of Control Repurchase Date and the time of delivery of the Note to the Paying Agent in accordance with this Section 3.013.02. Notwithstanding anything herein to the contrary, any Holder delivering to the Paying Agent the Change of Control Repurchase Notice contemplated by this Section 3.02(d) shall have the right to withdraw such Change of Control Repurchase Notice at any time prior to the close of business on the Change of Control Repurchase Date by delivery of a written notice of withdrawal to the Paying Agent in accordance with Section 3.03. The Paying Agent shall promptly notify the Company of the receipt by it of any Change of Control Repurchase Notice or written withdrawal thereof.
Appears in 1 contract
Repurchase of Notes at Option of the Holder upon Change of Control. (a) If there shall have occurred a Change of Control, all or any portion of the Notes of any Holder equal to $1,000 or a whole multiple of $1,000, not previously called for redemption, shall be repurchased by the IssuerCompany, at the option of such Holder, at a repurchase price equal to 100% of the principal amount of the Notes to be repurchased, together with interest (including Liquidated Damages) accrued and unpaid to, but excluding, the repurchase date (the "Change of Control Repurchase Price"), on the date (the "Change of Control Repurchase Date") that is 45 30 days after the date the Issuer delivered the notice required under Section 3.01(c) (or if such 45th day is not a Business Day, the next succeeding Business Day)Change of Control Repurchase Notice; provided, however, that installments of interest on Notes the whose Stated Maturity of which is prior to or on the Change of Control Repurchase Date shall be payable to the Holders of such Notes, or one or more predecessor Notes, registered as such on the relevant Regular Record Date according to their terms. Such right to require the repurchase of the Notes shall not continue after a discharge of the Company from its obligations with respect to the Notes in accordance with Article 8, unless a Change of Control shall have occurred prior to such discharge. Subject to the fulfillment by the Company of the conditions set forth in this Section 3.10(b), the Company may elect to pay the Change of Control Repurchase Price by delivering the number of shares of Common Stock equal to (i) the Change of Control Repurchase Price divided by (ii) 95% of the average of the Closing Prices per share of Common Stock for the five consecutive Trading Days ending on the third Trading Day prior to the Change of Control Repurchase Date. Whenever in this Indenture (including Sections 2.01, 6.01(a) and 6.07 hereof) or Exhibit A A-1 annexed hereto there is a reference, in any context, to the principal of any Note as of any time, such reference shall be deemed to include reference to the Change of Control Repurchase Price payable in respect to such Note to the extent that such Change of Control Repurchase Price is, was or would be so payable at such time, and express mention of the Change of Control Repurchase Price in any provision of this Indenture shall not be construed as excluding the Change of Control Repurchase Price in those provisions of this Indenture when such express mention is not made.
; provided, however, that, for the purposes of Article 11 hereof, such reference shall be deemed to include reference to the Change of Control Repurchase Price only to the extent the Change of Control Repurchase Price is payable in cash. A " "Change of Control" of the Issuer Company shall be deemed to have occurred at such time as either of the following events shall occur:
(i) the acquisition by any person, including any syndicate or group deemed to be a "person" or "group" (as such terms are used in Sections 13(d) and 14(dunder Section 13(d)(3) of the Securities Exchange Act of 1934, as amended (the "Exchange Act")), acquires the beneficial ownership (as defined in Rules 13d-3 and 13d-5 under the Exchange Act, except that a Person shall be deemed to have "other than Permitted Holders) of beneficial ownership" of all securities that such Person has the right to acquire, whether such right is exercisable immediately or only after the passage of time), directly or indirectly, through a purchase, merger or other acquisition transactiontransaction or series of transactions of shares of the Capital Stock of the Company entitling that person to exercise 50% or more of the total voting power of all shares of Capital Stock entitled to vote generally in elections of directors, other than any acquisition by the Company, any of its subsidiaries or any of the employee benefit plans;
(ii) any Permitted Holder files a schedule, form or report in connection with a transaction or event disclosing that such person has become the beneficial owner of 50% or more of the total voting power of all shares of Capital Stock entitled to vote generally in elections of directors, as a result of which (i) the Issuer's total outstanding Voting Common Stock other than an acquisition by ceases (or, upon consummation of or immediately following such transaction or event, will cease) to be listed on a United States national securities exchange or approved for quotation on the Issuer, any of its Subsidiaries Nasdaq National Market or any similar United States system for automated dissemination of its employee benefit plans;
quotations of securities prices or (ii) less than 5 million shares of the Issuer consolidates withCompany's Common Stock remain held by persons other than Permitted Holders; or
(iii) any consolidation or merger of the Company with or into any other person, any merger of another person into the Company, or merges with any conveyance, transfer, sale, lease or into, another Person or conveys, transfers, leases or otherwise disposes other disposition of all or substantially all of its the Company's properties and assets to any Personanother person, or any Person consolidates with or merges with or into the Issuer other than:
(A) any transaction (1) that does not result in any reclassification, conversion, exchange or cancellation of outstanding shares of the Issuer's Capital Stock and (2) pursuant to which holders of the Issuer's Capital Stock immediately prior to such the transaction have the entitlement to exercise, directly or indirectly, 50% or more of the total voting power of all shares of the Issuer's Capital Stock entitled to vote generally in the election of directors of the continuing or surviving Person person immediately after the transaction; and
(B) any merger solely for the purpose of changing the IssuerCompany's jurisdiction of incorporation and resulting in a reclassification, conversion or exchange of outstanding shares of Common Stock solely into shares of common stock Common Stock of the surviving entity;
(iii) during any consecutive two-year period, individuals who at the beginning of that two-year period constituted the Issuer's board of directors (together with any new directors whose election to such board of directors, or whose nomination for election by the Issuer's stockholders, was approved by a vote of a majority of the directors then still in office who were either directors at the beginning of such period or whose election or nomination for election was previously so approved) cease for any reason to constitute a majority the Issuer's board of directors then in office; or
(iv) the Issuer's stockholders pass a special resolution approving a plan of liquidation or dissolution and no additional approvals of the Issuer's stockholders are required under applicable law to cause a liquidation or dissolution.
(b) Prior The following are conditions to the Company's election to pay for the Change of Control Repurchase Price in Common Stock:
(i) The shares of Common Stock to be issued upon repurchase of Notes hereunder:
(A) shall not require registration under any federal securities law before such shares may be freely transferable without being subject to any transfer restrictions under the Securities Act upon repurchase or, if such registration is required, such registration shall be completed and shall become effective prior to the Change of Control Repurchase Date; and
(B) shall not require registration with, or approval of, any governmental authority under any state law or any other federal law before shares may be validly issued or delivered upon repurchase or if such registration is required or such approval must be obtained, such registration shall be completed or such approval shall be obtained prior to the Change of Control Repurchase Date.
(ii) The shares of Common Stock to be listed upon repurchase of Notes hereunder are, or shall have been, approved for listing on the Nasdaq National Market or the New York Stock Exchange or listed on another national securities exchange, in any case, prior to the Change of Control Repurchase Date.
(iii) All shares of Common Stock which may be issued upon repurchase of Notes will be issued out of the Company's authorized but unissued Common Stock and will, upon issue, be duly and validly issued and fully paid and nonassessable and free of any preemptive or similar rights.
(iv) If any of the conditions set forth in clauses (i) through (iii) of this Section 3.10(b) are not satisfied in accordance with the terms thereof, the Change of Control Repurchase Price shall be paid by the Company only in cash.
(c) Unless the Company shall have theretofore called for redemption all of the outstanding Notes, prior to or on the 30th day after the occurrence of a Change of Control, the IssuerCompany, or, at the written request and expense of the Issuer prior to or on the 30th day after such occurrenceCompany, the Trustee, shall give to all Noteholders, in the manner provided in Section 12.02 13.02 hereof, notice of the occurrence of the Change of Control and of the repurchase right set forth herein arising as a result thereof. If the Trustee is requested to give such notice the Company will provide the written request at least 1 day prior. The Issuer Company shall also deliver a copy of such notice of a repurchase right to the Trustee. The notice shall include a form of Change of Control Repurchase Notice (as defined in Section 3.01(c3.10(d)) to be completed by the Noteholder and shall state:
(1) briefly, the events causing a Change of Control and the date of such Change of Control;
(2) the date by which the Change of Control Repurchase Notice pursuant to this Section 3.01 3.10 must be given;
(3) the Change of Control Repurchase Date;
(4) the Change of Control Repurchase PricePrice and the form of payment;
(5) the name and address of the Paying Agent and the Conversion Agent;
(6) the Conversion Price and any adjustments thereto;
(7) that Notes as to which a Change of Control Repurchase Notice has been given may be converted pursuant to Article 10 hereof only if the Change of Control Repurchase Notice has been withdrawn in accordance with the terms of this Indenture;
(8) that Notes must be surrendered to the Paying Agent to collect payment;
(9) that the Change of Control Repurchase Price for any Note as to which a Change of Control Repurchase Notice has been duly given and not withdrawn will be paid promptly following the later of the Change of Control Repurchase Date and the time of surrender of such Note as described in (8) above;
(10) briefly, the procedures the Holder must follow to exercise rights under this Section 3.013.10;
(11) briefly, the conversion rights of the Notes;
(12) the procedures for withdrawing a Change of Control Repurchase Notice;
(13) that, unless the Issuer Company defaults in making payment of such Change of Control Repurchase Redemption Price, interest on Notes submitted called for repurchase redemption will cease to accrue on and after the Change of Control Repurchase Redemption Date; and
(14) the CUSIP number of the Notes.
(cd) A Holder may exercise its rights specified in Section 3.01(a3.10(a) hereof upon delivery of a written notice of purchase (a "Change of Control Repurchase Notice"), substantially in the form as set forth on the reverse of the Notes, ) to the Paying Agent at any time prior to the close of business on the Business Day immediately preceding the Change of Control Repurchase Date, stating:
(1) the certificate number of the Note which the Holder will deliver to be purchased;
(2) the portion of the principal amount of the Note which the Holder will deliver to be purchased, which portion must be $1,000 or an integral multiple thereof;; and
(3) that such Note shall be purchased pursuant to the terms and conditions specified in paragraph 6 of the Notes. The delivery of such Note to the Paying Agent prior to, on or after the Change of Control Repurchase Date (together with all necessary endorsements) at the offices of the Paying Agent shall be a condition to the receipt by the Holder of the Change of Control Repurchase Price therefor; provided, however, that such Change of Control Repurchase Price shall be so paid pursuant to this Section 3.01 3.10 only if the Note so delivered to the Paying Agent shall conform in all respects to the description thereof set forth in the related Change of Control Repurchase Notice. The Issuer Company shall purchase from the Holder thereof, pursuant to this Section 3.013.10, a portion of a Note 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 Note also apply to the purchase of such portion of such Note. Any purchase by the Issuer Company contemplated pursuant to the provisions of this Section 3.01 3.10 shall be consummated by the delivery of the consideration to be received by the Holder on promptly following the later of the Change of Control Repurchase Date and the time of delivery of the Note to the Paying Agent in accordance with this Section 3.013.10. Notwithstanding anything herein to the contrary, any Holder delivering to the Paying Agent the Change of Control Repurchase Notice contemplated by this Section 3.10(d) shall have the right to withdraw such Change of Control Repurchase Notice at any time prior to the close of business on the Change of Control Repurchase Date by delivery of a written notice of withdrawal to the Paying Agent in accordance with Section 3.11. The Paying Agent shall promptly notify the Company of the receipt by it of any Change of Control Repurchase Notice or written withdrawal thereof.
Appears in 1 contract
Repurchase of Notes at Option of the Holder upon Change of Control. (a) If there shall have occurred a Change of Control, all or any portion of the Notes of any Holder equal to $1,000 or a whole multiple of $1,000, shall be repurchased by the Issuer, at the option of such Holder, at a repurchase price equal to 100% of the principal amount of the Notes to be repurchased, together with interest (including Liquidated Damages) accrued and unpaid to, but excluding, the repurchase date (the "Change of Control Repurchase Price"), on the date (the "Change of Control Repurchase Date") that is 45 days after the date the Issuer delivered the notice required under Section 3.01(c) (or if such 45th day is not a Business Day, the next succeeding Business Day); provided, however, that installments of interest on Notes the Stated Maturity of which is prior to or on the Change of Control Repurchase Date shall be payable to the Holders of such Notes, or one or more predecessor Notes, registered as such on the relevant Regular Record Date according to their terms. Whenever in this Indenture (including Sections 2.01, 6.01(a) and 6.07 hereof) or Exhibit A annexed hereto there is a reference, in any context, to the principal of any Note as of any time, such reference shall be deemed to include reference to the Change of Control Repurchase Price payable in respect to such Note to the extent that such Change of Control Repurchase Price is, was or would be so payable at such time, and express mention of the Change of Control Repurchase Price in any provision of this Indenture shall not be construed as excluding the Change of Control Repurchase Price in those provisions of this Indenture when such express mention is not made.
A " Change of Control" of the Issuer shall be deemed to have occurred at such time as either of the following events shall occur:
(i) any "person" or "group" (as such terms are used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, as amended (the "Exchange Act")), acquires the beneficial ownership (as defined in Rules 13d-3 and 13d-5 under the Exchange Act, except that a Person shall be deemed to have "beneficial ownership" of all securities that such Person has the right to acquire, whether such right is exercisable immediately or only after the passage of time), directly or indirectly, through a purchase, merger or other acquisition transaction, of 50% or more of the total voting power of the Issuer's total outstanding Voting Stock other than an acquisition by the Issuer, any of its Subsidiaries or any of its employee benefit plans;
(ii) the Issuer consolidates with, or merges with or into, another Person or conveys, transfers, leases or otherwise disposes of all or substantially all of its assets to any Person, or any Person consolidates with or merges with or into the Issuer other than:
(A) any transaction (1) that does not result in any reclassification, conversion, exchange or cancellation of outstanding shares of the Issuer's Capital Stock and (2) pursuant to which holders of the Issuer's Capital Stock immediately prior to such transaction have the entitlement to exercise, directly or indirectly, 50% or more of the total voting power of all shares of the Issuer's Capital Stock entitled to vote generally in the election of directors of the continuing or surviving Person immediately after the transaction; and
(B) any merger solely for the purpose of changing the Issuer's jurisdiction of incorporation and resulting in a reclassification, conversion or exchange of outstanding shares of Common Stock solely into shares of common stock of the surviving entity;
(iii) during any consecutive two-year period, individuals who at the beginning of that two-year period constituted the Issuer's board of directors (together with any new directors whose election to such board of directors, or whose nomination for election by the Issuer's stockholders, was approved by a vote of a majority of the directors then still in office who were either directors at the beginning of such period or whose election or nomination for election was previously so approved) cease for any reason to constitute a majority the Issuer's board of directors then in office; or
(iv) the Issuer's stockholders pass a special resolution approving a plan of liquidation or dissolution and no additional approvals of the Issuer's stockholders are required under applicable law to cause a liquidation or dissolution.
(b) Prior to or on the 30th day after the occurrence of a Change of Control, the Issuer, or, at the written request and expense of the Issuer prior to or on the 30th day after such occurrence, the Trustee, shall give to all Noteholders, in the manner provided in Section 12.02 hereof, notice of the occurrence of the Change of Control and of the repurchase right set forth herein arising as a result thereof. The Issuer shall also deliver a copy of such notice of a repurchase right to the Trustee. The notice shall include a form of Change of Control Repurchase Notice (as defined in Section 3.01(c)) to be completed by the Noteholder and shall state:
(1) briefly, the events causing a Change of Control and the date of such Change of Control;
(2) the date by which the Change of Control Repurchase Notice pursuant to this Section 3.01 must be given;
(3) the Change of Control Repurchase Date;
(4) the Change of Control Repurchase Price;
(5) the name and address of the Paying Agent and the Conversion Agent;
(6) the Conversion Price and any adjustments thereto;
(7) that Notes as to which a Change of Control Repurchase Notice has been given may be converted pursuant to Article 10 hereof only if the Change of Control Repurchase Notice has been withdrawn in accordance with the terms of this Indenture;
(8) that Notes must be surrendered to the Paying Agent to collect payment;
(9) that the Change of Control Repurchase Price for any Note as to which a Change of Control Repurchase Notice has been duly given and not withdrawn will be paid promptly following the later of the Change of Control Repurchase Date and the time of surrender of such Note as described in (8) above;
(10) briefly, the procedures the Holder must follow to exercise rights under this Section 3.01;
(11) briefly, the conversion rights of the Notes;
(12) the procedures for withdrawing a Change of Control Repurchase Notice;
(13) that, unless the Issuer defaults in making payment of such Change of Control Repurchase Price, interest on Notes submitted for repurchase will cease to accrue on and after the Change of Control Repurchase Date; and
(14) the CUSIP number of the Notes.
(c) A Holder may exercise its rights specified in Section 3.01(a) hereof upon delivery of a written notice of purchase (a "Change of Control Repurchase Notice"), substantially in the form as set forth on the reverse of the Notes, to the Paying Agent at any time prior to the close of business on the Business Day immediately preceding the Change of Control Repurchase Date, stating:
(1) the certificate number of the Note which the Holder will deliver to be purchased;
(2) the portion of the principal amount of the Note which the Holder will deliver to be purchased, which portion must be $1,000 or an integral multiple thereof;
(3) that such Note shall be purchased pursuant to the terms and conditions specified in paragraph 6 of the Notes. The delivery of such Note to the Paying Agent prior to, on or after the Change of Control Repurchase Date (together with all necessary endorsements) at the offices of the Paying Agent shall be a condition to the receipt by the Holder of the Change of Control Repurchase Price therefor; provided, however, that such Change of Control Repurchase Price shall be so paid pursuant to this Section 3.01 only if the Note so delivered to the Paying Agent shall conform in all respects to the description thereof set forth in the related Change of Control Repurchase Notice. The Issuer shall purchase from the Holder thereof, pursuant to this Section 3.01, a portion of a Note 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 Note also apply to the purchase of such portion of such Note. Any purchase by the Issuer contemplated pursuant to the provisions of this Section 3.01 shall be consummated by the delivery of the consideration to be received by the Holder on the later of the Change of Control Repurchase Date and the time of delivery of the Note to the Paying Agent in accordance with this Section 3.01.
Appears in 1 contract
Samples: Indenture (Xcel Energy Inc)
Repurchase of Notes at Option of the Holder upon Change of Control. (a) If there shall have occurred a Change of Control, all or any portion of the Notes of any Holder equal to $1,000 or a whole multiple of $1,000, shall be repurchased by the IssuerCompany, at the option of such Holder, at a repurchase price equal to 100% of the principal amount of the Notes to be repurchased, together with interest (including Liquidated Damages) accrued and unpaid to, but excluding, the repurchase date (the "“Change of Control Repurchase Price"”), on the date (the "“Change of Control Repurchase Date"”) that is 45 days after the date the Issuer Company delivered the notice required under Section 3.01(c3.02(c) (or if such 45th day is not a Business Day, the next succeeding Business Day); provided, however, that installments of interest on Notes the Stated Maturity of which is prior to or on the Change of Control Repurchase Date shall be payable to the Holders of such Notes, or one or more predecessor Notes, registered as such on the relevant Regular Record Date according to their terms. Subject to the fulfillment by the Company of the conditions set forth in Section 3.02(b) hereof, the Company may elect to pay the Change of Control Repurchase Price in Common Stock by delivering the number of shares of Common Stock equal to (i) the Change of Control Repurchase Price divided by (ii) 95% of the average of the Closing Prices per share of the applicable Common Stock for the five consecutive Trading Days immediately preceding and including the third Trading Day prior to the Change of Control Repurchase Date. Whenever in this Indenture (including Sections 2.01, 6.01(a) and 6.07 hereof) or Exhibit A annexed hereto there is a reference, in any context, to the principal of any Note as of any time, such reference shall be deemed to include reference to the Change of Control Repurchase Price payable in respect to such Note to the extent that such Change of Control Repurchase Price is, was or would be so payable at such time, and express mention of the Change of Control Repurchase Price in any provision of this Indenture shall not be construed as excluding the Change of Control Repurchase Price in those provisions of this Indenture when such express mention is not made.
. A " “Change of Control" ” of the Issuer Company shall be deemed to have occurred at such time as either of the following events shall occur:
(i) any "“person" ” or "“group" ” (as such terms are used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, as amended (the "“Exchange Act"”)), acquires the beneficial ownership (as defined in Rules 13d-3 and 13d-5 under the Exchange Act, except that a Person shall be deemed to have "“beneficial ownership" ” of all securities that such Person has the right to acquire, whether such right is exercisable immediately or only after the passage of time), directly or indirectly, through a purchase, merger or other acquisition transaction, of 50% or more of the total voting power of the Issuer's Company’s total outstanding Voting Stock other than an acquisition by the IssuerCompany, any of its Subsidiaries or any of its employee benefit plans;
(ii) the Issuer Company consolidates with, or merges with or into, another Person or conveys, transfers, leases or otherwise disposes of all or substantially all of its assets to any Person, or any Person consolidates with or merges with or into the Issuer Company other than:
(A) any transaction (1) that does not result in any reclassification, conversion, exchange or cancellation of outstanding shares of the Issuer's Company’s Capital Stock and (2) pursuant to which holders of the Issuer's Company’s Capital Stock immediately prior to such transaction have the entitlement to exercise, directly or indirectly, 50% or more of the total voting power of all shares of the Issuer's Company’s Capital Stock entitled to vote generally in the election of directors of the continuing or surviving Person person immediately after the transaction; and
(B) any merger solely for the purpose of changing the Issuer's Company’s jurisdiction of incorporation and resulting in a reclassification, conversion or exchange of outstanding shares of Common Stock solely into shares of common stock of the surviving entity;
(iii) during any consecutive two-year period, individuals who at the beginning of that two-year period constituted the Issuer's Company’s board of directors (together with any new directors whose election to such board of directors, or whose nomination for election by the Issuer's Company’s stockholders, was approved by a vote of a majority of the directors then still in office who were either directors at the beginning of such period or whose election or nomination for election was previously so approved) cease for any reason to constitute a majority the Issuer's Company’s board of directors then in office; or
(iv) the Issuer's Company’s stockholders pass a special resolution approving a plan of liquidation or dissolution and no additional approvals of the Issuer's Company’s stockholders are required under applicable law to cause a liquidation or dissolution.
(b) The following are conditions to the Company’s election to pay for the Change of Control Repurchase Price in Common Stock:
(i) The shares of Common Stock to be issued upon repurchase of Notes hereunder:
(A) shall not require registration under any federal securities law before such shares may be freely transferable without being subject to any transfer restrictions under the Securities Act upon repurchase or, if such registration is required, such registration shall be completed and shall become effective prior to the Change of Control Repurchase Date; and
(B) shall not require registration with, or approval of, any governmental authority under any state law or any other federal law before shares may be validly issued or delivered upon repurchase or if such registration is required or such approval must be obtained, such registration shall be completed or such approval shall be obtained prior to the Change of Control Repurchase Date.
(ii) The shares of Common Stock to be listed upon repurchase of Notes hereunder are, or shall have been, approved for listing on the Nasdaq National Market or the New York Stock Exchange or listed on another national securities exchange, in any case, prior to the Change of Control Repurchase Date.
(iii) All shares of Common Stock which may be issued upon repurchase of Notes will be issued out of the Company’s authorized but unissued Common Stock and will, upon issue, be duly and validly issued and fully paid and nonassessable and free of any preemptive or similar rights.
(iv) If any of the conditions set forth in clauses (i) through (iii) of this Section 3.02(b) are not satisfied in accordance with the terms thereof, the Change of Control Repurchase Price shall be paid by the Company only in cash.
(c) Prior to or on the 30th day after the occurrence of a Change of Control, the IssuerCompany, or, at the written request and expense of the Issuer Company prior to or on the 30th day after such occurrence, the Trustee, shall give to all Noteholders, in the manner provided in Section 12.02 11.02 hereof, notice of the occurrence of the Change of Control and of the repurchase right set forth herein arising as a result thereof. The Issuer Company shall also deliver a copy of such notice of a repurchase right to the Trustee. The notice shall include a form of Change of Control Repurchase Notice (as defined in Section 3.01(c3.02(d)) to be completed by the Noteholder and shall state:
(1) briefly, the events causing a Change of Control and the date of such Change of Control;
(2) the date by which the Change of Control Repurchase Notice pursuant to this Section 3.01 3.02 must be given;
(3) the Change of Control Repurchase Date;
(4) the Change of Control Repurchase PricePrice and whether the Change of Control Repurchase Price will be payable in cash or Common Stock;
(5) the name and address of the Paying Agent and the Conversion Agent;
(6) the Conversion Price and any adjustments thereto;
(7) that Notes as to which a Change of Control Repurchase Notice has been given may be converted pursuant to Article 10 hereof only if the Change of Control Repurchase Notice has been withdrawn in accordance with the terms of this Indenture;
(8) that Notes must be surrendered to the Paying Agent to collect payment;
(9) that the Change of Control Repurchase Price for any Note as to which a Change of Control Repurchase Notice has been duly given and not withdrawn will be paid promptly following the later of the Change of Control Repurchase Date and the time of surrender of such Note as described in (8) above;
(10) briefly, the procedures the Holder must follow to exercise rights under this Section 3.013.02;
(11) briefly, the conversion rights of the Notes;
(12) the procedures for withdrawing a Change of Control Repurchase Notice;
(13) that, unless the Issuer Company defaults in making payment of such Change of Control Repurchase Price, interest on Notes submitted for repurchase will cease to accrue on and after the Change of Control Repurchase Date; and
(14) the CUSIP number of the Notes.
(cd) A Holder may exercise its rights specified in Section 3.01(a3.02(a) hereof upon delivery of a written notice of purchase (a "“Change of Control Repurchase Notice"”), substantially in the form as set forth on the reverse of the Notes, to the Paying Agent at any time prior to the close of business on the Business Day immediately preceding the Change of Control Repurchase Date, stating:
(1) the certificate number of the Note which the Holder will deliver to be purchased;
(2) the portion of the principal amount of the Note which the Holder will deliver to be purchased, which portion must be $1,000 or an integral multiple thereof;; and
(3) that such Note shall be purchased pursuant to the terms and conditions specified in paragraph 6 of the Notes. The delivery of such Note to the Paying Agent prior to, on or after the Change of Control Repurchase Date (together with all necessary endorsements) at the offices of the Paying Agent shall be a condition to the receipt by the Holder of the Change of Control Repurchase Price therefor; provided, however, that such Change of Control Repurchase Price shall be so paid pursuant to this Section 3.01 3.02 only if the Note so delivered to the Paying Agent shall conform in all respects to the description thereof set forth in the related Change of Control Repurchase Notice. The Issuer Company shall purchase from the Holder thereof, pursuant to this Section 3.013.02, a portion of a Note 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 Note also apply to the purchase of such portion of such Note. Any purchase by the Issuer Company contemplated pursuant to the provisions of this Section 3.01 3.02 shall be consummated by the delivery of the consideration to be received by the Holder on promptly following the later of the Change of Control Repurchase Date and the time of delivery of the Note to the Paying Agent in accordance with this Section 3.013.02. Notwithstanding anything herein to the contrary, any Holder delivering to the Paying Agent the Change of Control Repurchase Notice contemplated by this Section 3.02(d) shall have the right to withdraw such Change of Control Repurchase Notice at any time prior to the close of business on the Change of Control Repurchase Date by delivery of a written notice of withdrawal to the Paying Agent in accordance with Section 3.03. The Paying Agent shall promptly notify the Company of the receipt by it of any Change of Control Repurchase Notice or written withdrawal thereof.
Appears in 1 contract
Repurchase of Notes at Option of the Holder upon Change of Control. (a) If there shall have occurred a Change of Control, all or any portion of the Notes of any Holder equal to $1,000 or a whole multiple of $1,000, not previously called for redemption, shall be repurchased by the IssuerIssuers, at the option of such Holder, at a repurchase price equal to 100% of the principal amount of the Notes to be repurchased, together with interest (including Liquidated Damages) accrued and unpaid to, but excluding, the repurchase date (the "Change of Control Repurchase Price"), on the date (the "Change of Control Repurchase Date") that is 45 days after the date the Issuer Issuers delivered the notice required under Section 3.01(c3.08(c) (or if such 45th day is not a Business Day, the next succeeding Business Day); provided, however, that installments of interest on Notes the Stated Maturity of which is prior to or on the Change of Control Repurchase Date shall be payable to the Holders of such Notes, or one or more predecessor Notes, registered as such on the relevant Regular Record Date according to their terms. Subject to the fulfillment by the Issuers of the conditions set forth in Section 3.08(b) hereof, the Issuers may elect to pay the Change of Control Repurchase Price in Common Stock by delivering the number of shares of, at the option of the Holders, Class A Common Stock or Class B Common Stock equal to (i) the Change of Control Repurchase Price divided by (ii) 95% of the average of the Closing Prices per share of the applicable Common Stock for the five consecutive Trading Days immediately preceding and including the third Trading Day prior to the Change of Control Repurchase Date. Whenever in this Indenture (including Sections 2.01, 6.01(a) and 6.07 hereof) or Exhibit A annexed hereto there is a reference, in any context, to the principal of any Note as of any time, such reference shall be deemed to include reference to the Change of Control Repurchase Price payable in respect to such Note to the extent that such Change of Control Repurchase Price is, was or would be so payable at such time, and express mention of the Change of Control Repurchase Price in any provision of this Indenture shall not be construed as excluding the Change of Control Repurchase Price in those provisions of this Indenture when such express mention is not made.
A " Change of Control" of the Issuer Company shall be deemed to have occurred at such time as either of the following events shall occur:
(i) any "person" or "group" (as such terms are used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, as amended (the "Exchange Act")), acquires the beneficial ownership (as defined in Rules 13d-3 and 13d-5 under the Exchange Act, except that a Person shall be deemed to have "beneficial ownership" of all securities that such Person has the right to acquire, whether such right is exercisable immediately or only after the passage of time), directly or indirectly, through a purchase, merger or other acquisition transaction, of 50% or more of the total voting power of the IssuerCompany's total outstanding Voting Stock other than an acquisition by the IssuerCompany, any of its Subsidiaries or any of its employee benefit plans;
(ii) the Issuer Company consolidates with, or merges with or into, another Person or conveys, transfers, leases or otherwise disposes of all or substantially all of its assets to any Person, or any Person consolidates with or merges with or into the Issuer Company other than:
(A) any transaction (1) that does not result in any reclassificationreclassification (excluding a reclassification combining the Class A Common Stock and Class B Common Stock into one class), conversion, exchange or cancellation of outstanding shares of the IssuerCompany's Capital Stock and (2) pursuant to which holders of the IssuerCompany's Capital Stock immediately prior to such transaction have the entitlement to exercise, directly or indirectly, 50% or more of the total voting power of all shares of the IssuerCompany's Capital Stock entitled to vote generally in the election of directors of the continuing or surviving Person person immediately after the transaction; and
(B) any merger solely for the purpose of changing the IssuerCompany's jurisdiction of incorporation and resulting in a reclassification, conversion or exchange of outstanding shares of Common Stock solely into shares of common stock of the surviving entity;
(iii) during any consecutive two-year period, individuals who at the beginning of that two-year period constituted the IssuerCompany's board of directors (together with any new directors whose election to such board of directors, or whose nomination for election by the IssuerCompany's stockholders, was approved by a vote of a majority of the directors then still in office who were either directors at the beginning of such period or whose election or nomination for election was previously so approved) cease for any reason to constitute a majority the IssuerCompany's board of directors then in office; or
(iv) the IssuerCompany's stockholders pass a special resolution approving a plan of liquidation or dissolution and no additional approvals of the IssuerCompany's stockholders are required under applicable law to cause a liquidation or dissolution.
(b) Prior The following are conditions to the Issuers' election to pay for the Change of Control Repurchase Price in Common Stock:
(i) The shares of Common Stock to be issued upon repurchase of Notes hereunder:
(A) shall not require registration under any federal securities law before such shares may be freely transferable without being subject to any transfer restrictions under the Securities Act upon repurchase or, if such registration is required, such registration shall be completed and shall become effective prior to the Change of Control Repurchase Date; and
(B) shall not require registration with, or approval of, any governmental authority under any state law or any other federal law before shares may be validly issued or delivered upon repurchase or if such registration is required or such approval must be obtained, such registration shall be completed or such approval shall be obtained prior to the Change of Control Repurchase Date.
(ii) The shares of Common Stock to be listed upon repurchase of Notes hereunder are, or shall have been, approved for listing on the Nasdaq National Market or the New York Stock Exchange or listed on another national securities exchange, in any case, prior to the Change of Control Repurchase Date.
(iii) All shares of Common Stock which may be issued upon repurchase of Notes will be issued out of the Company's authorized but unissued Common Stock and will, upon issue, be duly and validly issued and fully paid and nonassessable and free of any preemptive or similar rights.
(iv) If any of the conditions set forth in clauses (i) through (iii) of this Section 3.08(b) are not satisfied in accordance with the terms thereof, the Change of Control Repurchase Price shall be paid by the Issuers only of cash.
(c) Unless the Issuers shall have theretofore called for redemption all of the outstanding Notes, prior to or on the 30th day after the occurrence of a Change of Control, the IssuerIssuers, or, at the written request and expense of the Issuer Issuers prior to or on the 30th day after such occurrence, the Trustee, shall give to all Noteholders, in the manner provided in Section 12.02 hereof, notice of the occurrence of the Change of Control and of the repurchase right set forth herein arising as a result thereof. The Issuer Issuers shall also deliver a copy of such notice of a repurchase right to the Trustee. The notice shall include a form of Change of Control Repurchase Notice (as defined in Section 3.01(c3.08(d)) to be completed by the Noteholder and shall state:
(1) briefly, the events causing a Change of Control and the date of such Change of Control;
(2) the date by which the Change of Control Repurchase Notice pursuant to this Section 3.01 3.08 must be given;
(3) the Change of Control Repurchase Date;
(4) the Change of Control Repurchase PricePrice and whether the Change of Control Repurchase Price will be payable in cash or Common Stock;
(5) the name and address of the Paying Agent and the Conversion Agent;
(6) the Conversion Price and any adjustments thereto;
(7) that Notes as to which a Change of Control Repurchase Notice has been given may be converted pursuant to Article 10 hereof only if the Change of Control Repurchase Notice has been withdrawn in accordance with the terms of this Indenture;
(8) that Notes must be surrendered to the Paying Agent to collect payment;
(9) that the Change of Control Repurchase Price for any Note as to which a Change of Control Repurchase Notice has been duly given and not withdrawn will be paid promptly following the later of the Change of Control Repurchase Date and the time of surrender of such Note as described in (8) above;
(10) briefly, the procedures the Holder must follow to exercise rights under this Section 3.013.08;
(11) briefly, the conversion rights of the Notes;
(12) the procedures for withdrawing a Change of Control Repurchase Notice;
(13) that, unless the Issuer defaults Issuers default in making payment of such Change of Control Repurchase Price, interest on Notes submitted for repurchase will cease to accrue on and after the Change of Control Repurchase Date; and
(14) the CUSIP number of the Notes.
(cd) A Holder may exercise its rights specified in Section 3.01(a3.08(a) hereof upon delivery of a written notice of purchase (a "Change of Control Repurchase Notice"), substantially in the form as set forth on the reverse of the Notes, to the Paying Agent at any time prior to the close of business on the Business Day immediately preceding the Change of Control Repurchase Date, stating:
(1) the certificate number of the Note which the Holder will deliver to be purchased;
(2) the portion of the principal amount of the Note which the Holder will deliver to be purchased, which portion must be $1,000 or an integral multiple thereof;
(3) if the Issuers have elected to pay the Change of Control Repurchase Price in Common Stock, such Holder's election to receive the Change of Control Repurchase Price in Class A Common Stock or Class B Common Stock; and
(4) that such Note shall be purchased pursuant to the terms and conditions specified in paragraph 6 of the Notes. The delivery of such Note to the Paying Agent prior to, on or after the Change of Control Repurchase Date (together with all necessary endorsements) at the offices of the Paying Agent shall be a condition to the receipt by the Holder of the Change of Control Repurchase Price therefor; provided, however, that such Change of Control Repurchase Price shall be so paid pursuant to this Section 3.01 3.08 only if the Note so delivered to the Paying Agent shall conform in all respects to the description thereof set forth in the related Change of Control Repurchase Notice. The Issuer Issuers shall purchase from the Holder thereof, pursuant to this Section 3.013.08, a portion of a Note 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 Note also apply to the purchase of such portion of such Note. Any purchase by the Issuer contemplated pursuant to the provisions of this Section 3.01 shall be consummated by the delivery of the consideration to be received by the Holder on the later of the Change of Control Repurchase Date and the time of delivery of the Note to the Paying Agent in accordance with this Section 3.01.
Appears in 1 contract
Repurchase of Notes at Option of the Holder upon Change of Control. (a) If there shall have occurred a Change of Control, all or any portion of the Notes of any Holder equal to $1,000 or a whole multiple of $1,000, not previously called for redemption, shall be repurchased by the Issuer, Company at the option of such Holder, at a cash repurchase price equal to 100101% of the principal amount of the Notes to be repurchased, together with interest (including Liquidated Damages) accrued and unpaid and Liquidated Damages, if any, to, but excluding, the repurchase date date, and the Make Whole Premium if such Change of Control occurs before July 15, 2004 (collectively, the "Change of Control Repurchase Price"), on the date (the "Change of Control Repurchase Date") that is 45 days 20 Business Days after the date Company or the Issuer delivered Trustee, as the notice case may be, gives the Change of Control Notice required under pursuant to this Section 3.01(c) (or if such 45th day is not a Business Day, the next succeeding Business Day)3.10; provided, however, that installments of interest on Notes the whose Stated Maturity of which is prior to or on the Change of Control Repurchase Date shall be payable to the Holders of such Notes, or one or more predecessor Notes, registered as such on the relevant Regular Record Date according to their terms. Holders of Notes on the date of the Change of Control will be entitled to receive the Make Whole Premium on the Change of Control Repurchase Date if such Notes are converted following the date of the Change of Control and on or before the Change of Control Repurchase Date. Whenever in this Indenture (including Sections 2.01, 6.01(a) and 6.07 hereof) or Exhibit A A-1 annexed hereto there is a reference, in any context, to the principal of any Note as of any time, such reference shall be deemed to include reference to the Change of Control Repurchase Price payable in respect to such Note to the extent that such Change of Control Repurchase Price is, was or would be so payable at such time, and express mention of the Change of Control Repurchase Price in any provision of this Indenture shall not be construed as excluding the Change of Control Repurchase Price in those provisions of this Indenture when such express mention is not made.
A " Change of Control" of the Issuer Company shall be deemed to have occurred at such time as either any of the following events shall occur:
(i1) the acquisition by any "person" or "group" (as such terms are used in Sections 13(d) and 14(dgroup under Section 13(d)(3) of the Securities Exchange Act of 1934, as amended (the "Exchange Act")), acquires but excluding the beneficial ownership (as defined in Rules 13d-3 Company or any of the Company's wholly owned Subsidiaries or any employee benefit plan of the Company or any of the Company's Subsidiaries and 13d-5 excluding Bennxxx X. Xx Xxx and his immediate family and any "person" or group under Section 13(d)(3) of the Exchange ActAct that is controlled by Bennxxx X. XxXxx xx his immediate family, except that a Person shall be deemed to have "any beneficiary of the estate of Bennxxx X. XxXxx or his immediate family or any trust or partnership controlled by any of the foregoing, of beneficial ownership" of all securities that such Person has the right to acquire, whether such right is exercisable immediately or only after the passage of time), directly or indirectly, through a purchase, merger or other acquisition transaction, of 50% transaction or more of the total voting power of the Issuer's total outstanding Voting Stock other than an acquisition by the Issuer, any of its Subsidiaries or any of its employee benefit plans;
(ii) the Issuer consolidates with, or merges with or into, another Person or conveys, transfers, leases or otherwise disposes of all or substantially all of its assets to any Person, or any Person consolidates with or merges with or into the Issuer other than:
(A) any transaction (1) that does not result in any reclassification, conversion, exchange or cancellation of outstanding shares of the Issuer's Capital Stock and (2) pursuant to which holders of the Issuer's Capital Stock immediately prior to such transaction have the entitlement to exercise, directly or indirectly, 50% or more of the total voting power of all shares of the Issuer's Capital Stock entitled to vote generally in the election of directors of the continuing or surviving Person immediately after the transaction; and
(B) any merger solely for the purpose of changing the Issuer's jurisdiction of incorporation and resulting in a reclassification, conversion or exchange of outstanding shares of Common Stock solely into shares of common stock of the surviving entity;
(iii) during any consecutive two-year period, individuals who at the beginning of that two-year period constituted the Issuer's board of directors (together with any new directors whose election to such board of directors, or whose nomination for election by the Issuer's stockholders, was approved by a vote of a majority of the directors then still in office who were either directors at the beginning of such period or whose election or nomination for election was previously so approved) cease for any reason to constitute a majority the Issuer's board of directors then in office; or
(iv) the Issuer's stockholders pass a special resolution approving a plan of liquidation or dissolution and no additional approvals of the Issuer's stockholders are required under applicable law to cause a liquidation or dissolution.
(b) Prior to or on the 30th day after the occurrence of a Change of Control, the Issuer, or, at the written request and expense of the Issuer prior to or on the 30th day after such occurrence, the Trustee, shall give to all Noteholders, in the manner provided in Section 12.02 hereof, notice of the occurrence of the Change of Control and of the repurchase right set forth herein arising as a result thereof. The Issuer shall also deliver a copy of such notice of a repurchase right to the Trustee. The notice shall include a form of Change of Control Repurchase Notice (as defined in Section 3.01(c)) to be completed by the Noteholder and shall state:
(1) briefly, the events causing a Change of Control and the date of such Change of Control;
(2) the date by which the Change of Control Repurchase Notice pursuant to this Section 3.01 must be given;
(3) the Change of Control Repurchase Date;
(4) the Change of Control Repurchase Price;
(5) the name and address of the Paying Agent and the Conversion Agent;
(6) the Conversion Price and any adjustments thereto;
(7) that Notes as to which a Change of Control Repurchase Notice has been given may be converted pursuant to Article 10 hereof only if the Change of Control Repurchase Notice has been withdrawn in accordance with the terms of this Indenture;
(8) that Notes must be surrendered to the Paying Agent to collect payment;
(9) that the Change of Control Repurchase Price for any Note as to which a Change of Control Repurchase Notice has been duly given and not withdrawn will be paid promptly following the later of the Change of Control Repurchase Date and the time of surrender of such Note as described in (8) above;
(10) briefly, the procedures the Holder must follow to exercise rights under this Section 3.01;
(11) briefly, the conversion rights of the Notes;
(12) the procedures for withdrawing a Change of Control Repurchase Notice;
(13) that, unless the Issuer defaults in making payment of such Change of Control Repurchase Price, interest on Notes submitted for repurchase will cease to accrue on and after the Change of Control Repurchase Date; and
(14) the CUSIP number of the Notes.
(c) A Holder may exercise its rights specified in Section 3.01(a) hereof upon delivery of a written notice of purchase (a "Change of Control Repurchase Notice"), substantially in the form as set forth on the reverse of the Notes, to the Paying Agent at any time prior to the close of business on the Business Day immediately preceding the Change of Control Repurchase Date, stating:
(1) the certificate number of the Note which the Holder will deliver to be purchased;
(2) the portion of the principal amount of the Note which the Holder will deliver to be purchased, which portion must be $1,000 or an integral multiple thereof;
(3) that such Note shall be purchased pursuant to the terms and conditions specified in paragraph 6 of the Notes. The delivery of such Note to the Paying Agent prior to, on or after the Change of Control Repurchase Date (together with all necessary endorsements) at the offices of the Paying Agent shall be a condition to the receipt by the Holder of the Change of Control Repurchase Price therefor; provided, however, that such Change of Control Repurchase Price shall be so paid pursuant to this Section 3.01 only if the Note so delivered to the Paying Agent shall conform in all respects to the description thereof set forth in the related Change of Control Repurchase Notice. The Issuer shall purchase from the Holder thereof, pursuant to this Section 3.01, a portion of a Note 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 Note also apply to the purchase of such portion of such Note. Any purchase by the Issuer contemplated pursuant to the provisions of this Section 3.01 shall be consummated by the delivery of the consideration to be received by the Holder on the later of the Change of Control Repurchase Date and the time of delivery of the Note to the Paying Agent in accordance with this Section 3.01.series
Appears in 1 contract
Samples: Indenture (Vector Group LTD)
